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P L D 1995 Peshawar 86

 

Before Sardar Muhammad Raza Khan and Jawaid Nawaz Gandapur, JJ

 

SARDARAZ KHAN and 36 others‑‑‑Appellants

versus

AMIRULLAH KHAN and 34 others‑‑‑Respondents

 

Regular First Appeal No.9 of 1991, decided on 28th June, 1994.

 

 

Mst. Hawabai v. Abdus Shakoor PLD 1979 Kar. 367 rel.

S. Zafar Abbas Zaidi for Appellants.

 

Muhammad Ali Jan and Muhammad Iqbal Khan Kundi for Respondents.

 

Date of hearing: 28th June, 1994.

 

JUDGMENT

 

SARDAR MUHAMMAD RAZA KHAN, J.‑‑A suit for partition of property located in Tota Killi of Tehsil and District Bannu described at Sr. No.109 of `Khana Shumari’ at the time of latest settlement, brought by Sardaraz Khan and others against Amirullah Khan and others was dismissed by learned Civil Judge First Class on 30‑7‑1990. The ground that found favour with the learned trial Court was that Amirullah Khan defendant/respondent No.1 was the sole owner of the property. An appeal preferred against such judgment before the learned District Judge on 16‑12‑1990 was returned on 13‑7‑1991 by the first appellate Court for lack. of pecuniary jurisdiction and for presentation to the proper forum i.e. the High Court where it stands filed on 19‑7‑1991.

 

2. With regard to a very strong objection quo the limitation, the learned counsel for the appellant has earnestly stressed upon the condonation of such delay with reference to section 14 of the Limitation Act. It was claimed that the filing of appeal before the District Judge and‑ the prosecution thereof from 16‑12‑1990 to 13‑7‑1991 was with due diligence as well as in good faith, before a forum which, from defect of jurisdiction, was unable to entertain it. Whether the institution of appeal before the District Judge and the prosecution thereof till the date of its return on 13‑7‑1991, and the filing thereof before this Court on 19‑7‑1991, was in the exercise of due diligence on part of the plaintiff appellant, would require a probe into record so that the matter is seen in the given perspective.

 

3. It is an admitted fact that the disputed one is a constructed property. An objection was raised at trial about the fixation of court‑fee and the making of improvements in the suit property for which a local Commissioner was appointed. According to his physical observations on the spot the total value of the property was fixed at rupees eight lass while the value of the shares claimed by the plaintiffs was determined at Rs.2,40,000. Initially no court‑fee was affixed but subsequently, under the direction of the Court, the court‑fee of Rs.3,000 was affixed. This is the background under which the then learned counsel for the appellant who is said to be a leading lawyer of Bannu ought to have been seriously vigilant about the market value of the property in dispute, about the value of the share of the appellant and about the fact that due to such valuation the appellant was asked to affix a court‑fee specifically. The learned counsel for the appellants was also supposed to have had the knowledge of what was contained in the Civil Court Ordinance of 1962 as amended up to date where the pecuniary jurisdiction of a District Judge is ousted in case the value of the subject‑matter exceeds Rs.50,000. The omission to attend to all such glaring circumstances is considered to be of gross negligence utterly lacking the factum of due diligence and further amounting to mala fides in law. The learned counsel for the appellants referred to Punjab Province v. Nisar Ahmad PLD 1960 Lah. 801(b) where the negligence of a counsel, however, senior and eminent he may be, was condoned particularly when damaging the interest of a client. It appears that much water has flown down the river since 1960 after which the consistent view of the Superior Courts has been to expect a counsel to work with care and caution and with due diligence. A counsel having not even consulted the Civil Court Ordinance and the basic requirements of lodging an appeal cannot be said to have acted with due diligence. It is alleged that once, despite having lacked pecuniary jurisdiction, the Additional District Judge, Bannu had decided on 15‑4‑1990 an appeal where the subject‑matter of suit valued more than Rs.50,000 and thus the learned counsel had good reasons to believe in the correctness of what the learned. Additional District Judge had held and to file a similar appeal accordingly. This is not at all acceptable and cannot be dubbed as due diligence having been bona fide exercised by the counsel. Rather, it amounts to adding insult to the injury by accepting that a senior counsel would not follow the law but an order of the lower appellate Court which was passed without jurisdiction. On the other hand there are numerous rulings and a sufficiently developed case‑law on the point that a laxity like one in hand amounts to gross negligence and the defaulter is not to be benefited under the provisions of section l4 of the Limitation Act. Chief Administrator of Auqaf v. Muhammad Ramzan (PLD 1991 SC 102) and Ghulam Ali v. Akbar (PLD 1991 SC 957) are the latest authorities where the negligence of a counsel has been considered not to be an act done in good faith as the same was not done with due care and caution and thus was never a sufficient cause for condonation under section 14 of the Limitation Act. In these cases Abdul Ghani v. Ghulam Sarwar (PLD 1977 SC 102) was followed. Similar view is taken in Raj Muhammad v. Chad Bibi (1984 SCMR 1068) and is maintained by the Supreme Court of Azad Jammu and Kashmir in Masood Ahmed v. United Bank Limited (1992 SCMR 424). In view of circumstances of the present case, the pronounced value of the subject‑matter, the persistence upon such valuation and the fixation of court‑fee at the trial Court and that too by the same party, are all such circumstances in the presence whereof, the filing of appeal before the District Judge was a gross negligence and the appellant is not entitled to the condonation of delay which is with effect from 30‑7‑1990 to 19‑7‑1991.

 

4. The learned counsel for the appellants raised an intelligent objection with reference to section 14(1) of the Limitation Act that in case his client was ill‑advised at Bannu to file an appeal before the District Judge, it should have been returned without being entertained and that the time which is wasted in between the filing of appeal and the return thereof should equally be shared by the first appellate Court. We feel that this burden cannot be shifted to the Court and such Court would be deemed to have been “unable to entertain” on the date when it returns the plaint presentation to the proper forum. No latest view seems to have been expressed regarding the term ‘is unable to entertain it” as used in section 14 of the Limitation Act except one of Sulaimar, Chief Justice who observed in Sadayatan Pande v. Ram Chandra Gopal (AIR 1934 Allahabad, 688 (FB)) that the above phrase in section 14 of the Limitation Act means that the Court has passed an order terminating the suit or proceeding on the ground that either it has no jurisdiction to entertain it or that there is some cause of a like nature which makes it impossible for the Court to entertain it. This observation means that the adjudication of the matter would be considered from the date the Court determined that it was “unable to entertain the matter”.

 

5. The crux of the contention raised by the learned counsel was that in the light of section 14 subsection (1) of the Limitation Act, the phrase `unable to entertain it’ has a meaningful connotation and the matter required disposal at the most early stage as compared to the factum of adjudication that might consume quite a long time. According to him, if the Court had no jurisdiction to hear the appeal, it ought to have had returned the plaint at a stage where the very matter of entertainment was likely to be appreciated and it was at the most the first two or three days of the filing of appeal. That if without jurisdiction, it could have been returned either with the first office‑note or when it first came before the Presiding Officer. In that case a lot of time would have been saved to the credit of the appellant. No doubt, the phrase `unable to entertain it’ is a very important phrase appearing in the body of section 14 of the Limitation Act but it does not serve the purpose of a negligent and non-diligent appellant. It gives an idea of entertainment only because in case a Court lacks pecuniary or territorial jurisdiction, it has to return the appeal without entertainment. The philosophy behind is that no adjudication can be made in such situations.

 

6. This is further explained by the fact that in circumstances of lack of jurisdiction, some times the cases are decided not by one rather three forums in sequence and it is ultimately decided at times by a second or third appellate Court that the matter was not within the jurisdiction of the trial Court and resultantly the plaints or the memorandum of appeals, as the case may be, are returned. In such circumstances no plaintiff or no appellant can turn round and say as to why his time was wasted up to the 1st or second last forum of appeal and why the plaint or the memorandum of appeal was not returned to him at the stage of entertainment by holding at the very first or second hearing that the Court was `unable to entertain it’. If this argument is not available to the one whose appeal is returned at such a late stage, it is equally not available to a plaintiff or to an appellant whose plaint is returned by that very forum but after sometimes when the matter is properly heard. The question of entertainment is not attributable to a specific point of time. Whenever the Court comes to the conclusion that it has no jurisdiction, regardless of the period of time involved, it would be held that it was `unable to entertain it’ notwithstanding the fact that it practically stood received and registered in the relevant register of appeals or suits.

 

7. Another glaringly damaging circumstance in the present case is that the appeal filed before this Court is a substantially amended appeal where the memorandum is extensively altered, though, the returned appeal is also annexed. We are of the firm view that this liberty cannot be exercised by the appellant. A returned plaint or a returned memorandum of appeal is a public document and has to be submitted, as such, before the forum to which it is returned. Such memorandum of suit or appeal can neither be amended nor with field by the party concerned. We find support in this behalf from an old verdict of his Lordship Mr. Justice Dorab Patel of Karachi High Court that he gave in Mst. Hawabai v. Abdus Shakoor (PLD 1970 Karachi 367). From this point of view as well, the present appeal that stands suo motu amended and altered, is not maintainable. On grounds of limitation as well as maintainability, the instant appeal is hereby dismissed with order to the parties to bear their own costs.

 

AA./1722/H.B.T. Appeal dismissed.

 

 

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