BASHIR AHMAD Versus HUSSAIN
RAJA FAYYAZ AHMED, C.J.‑‑ ‑This civil revision under section 115, C.P.C. has been directed against judgment and decree dated 27‑4‑2000 passed by the learned Qazi Mashkey whereby the suit filed by the respondent against the petitioners for declaration and possession was decreed in his favour and against the appellate judgment/decree datec 30‑10‑2001 wereby the appeal filed by the petitioners against the decree of the Qazi Court has been dismissed by maintaining the decree passed by the learned Qazi Mashkey as well as holding the appeal filed by the petitioners as barred by time.
2. The brief facts of the case are that the respondent instituted suit for declaration and ejectment of the petitioners under section 9 of the Specific Relief Act in respect of landed property, described in para. No.1 of the plaint in the Court of Qazi Mashkey on the stated averments that (i) Kherowal land on which machine has been installed was declared to be the exclusive property of the father of the respondent/plaintiff, (ii) Land Chail belongs to and vests in both the parties in equal shares and; (iii) Land known as Saktareeb shall vest and belong to both the parties in equal shares (one half share) each. It has further been explained in the para. No.2 of the suit that one half of the property described in para. No. 1 of the plaint was initially purchased by one Baran who sold the same to one Shikari from whom the same was purchased by the respondent/plaintiff and since then it remained in the cultivating possession of the' father of the plaintiff, who used to deliver Haq‑e Malikana to the petitioners/defendants as per their entitlement and during this period a dispute arose between the parties which ultimately; was resolved by virtue of the verdict of the Court, made in the year 1989, pursuant to which the cultivated and the uncultivated lands were partitioned between the parties and since then both the parties remained in the undisturbed and peaceful cultivating possession of their respective lands.
Further the case of the respondent/plaintiff was that about two months prior to the institution of the suit on the instigation of other persons, the petitioners on gunpoint forcibly took over possession of the lands of the respondent/plaintiff and the machine installed on his land was removed and dismantled. On these averments suit under section 9 of the Specific Relief Act for declaration, possession and injunction was instituted wherein the following reliefs were claimed:
3. The petitioners/defendants by means of their written statement dated 29‑3‑2000 contested the suit and repudiated the claim of the respondent on various grounds of law and facts. Mainly it was contended in the written statement that lands known as Kherowal has not been described by its correct boundaries nor the plaintiff has shown the extent of his entitlement in respect of Kherowal lands and the claim as regards Kherowal lands has been ambiguously made whereas the lands known as Chad and Saktareeb are barren, which were never brought under cultivation nor any Lath was ever erected on these lands. The claim of the plaintiff in respect of these lands was specifically repudiated on the ground that the same is the exclusive inherited property of the defendants/petitioners, as well as; the claim of the plaintiff that he purchased the suit property from one Shikari was also seriously contested on the ground that the stated vendor had no legal authority nor vested with any legal character to sell the property vesting in the defendants.
4. Out of pleadings of the parties, the learned Qazi Mashkey framed the following issues:‑‑
5. The respondent/plaintiff in support of his case and in the light of issues produced eight witnesses as well as tendered in evidence the judgment and decree dated 17‑6‑1989 and the compromise deed of even date respectively marked as Exh.P/A, Exh.P/B and Exh.P/C. Also, the decision rendered by Sardar Rustam Khan dated 22‑1-2000 was tendered in evidence by the respondent before the Qazi Court, but copies of these documents except the statement of few witnesses have not been annexed with the memo. of revision petition nor names of the witnesses produced at the trial have been mentioned in the revision petition.
6. The petitioners/defendants produced fourteen witnesses in support of their case, as well as; tendered in evidence copy of the criminal complaint dated 17‑1‑1999, Dastbardarinama dated 1‑11‑1999, copy of application dated 30‑10‑1999 and copy of compromise dated 11‑11‑1999 respectively marked as Exh.D/A to Exh.D/D. They also produced the decision of Sardarzada Ali Haider Muhammad Hassni dated 19‑10‑1999, but copies of these documents have not been filed with the memo. of civil revision petition.
After close of the parties case and hearing them, the learned Qazi Mashkey vide; judgment/decree dated 27‑4‑2000 decreed. the suit in favour of the respondent/plaintiff. The petitioners defendants feeling themselves dissatisfied with the decree of the Qazi Court filed Civil Revision Petition No. 148 of 2000 before this Court on 21‑6‑2000, which was heard on 4‑10‑2001 and by means of order of even date memo. of civil revision petition alongwith the annexures and court‑fees was directed to be returned to the petitioners or to their learned counsel after retaining photostat copies for record enabling them to file appeal in the Court of learned Majlis‑e‑Shoora subject to all just exceptions. For convenience and reference, the order passed by this Court in Civil Revision No. 148 of 2000, is reproduced in extenso hereinbelow.
"4‑10‑2001. Mr. Amanullah Kanrani, Advocate. Messrs Naeem Akhtar & M.Qahir Shah, Advocates.‑‑ ‑
At the very outset learned counsel for the respondent Mr.Naeem Akhtar contended that although irk the suit instituted by the respondent section 9 of the Specific Relief Act was mentioned, but the suit related to the reliefs of declaration, injunction and possession and in substance in view of the averments as contained in the plaint, it was not a suit simpliciter for possession within the purview of section 9 of the Specific Relief Act which after trial was decreed as prayed for by the learned Qazi Court, therefore, the decree was assailable only in appeal and not way of revision.
Mr. Amanullah Kanrani having gone through contents of the plaint, relief claimed in the suit and decree passed by the learned Qazi Court conceded to the legal position that it was not a suit simpliciter for possession, therefore, such decree was amenable to appellate jurisdiction of the learned Majlis‑e‑Shoora and in that connection the petitioners were misled by the quoting of section 9 of the Specific Relief Act in the title of the suit about which even reference was made by the Qazi Court in the impugned judgment/decree, hence; in such view of the matter, in the interest of justice, this revision petition and the court‑fee affixed on the memo. of revision petition be returned to the petitioners enabling them to file appeal in the learned Majlis‑e Shoora/Appellate Court against the impugned decree.
Perusal of the contents of plaint and reliefs claimed therein abundantly show, that the same was no: simpliciter a suit for possession within the meaning of section‑9 of the Specific Relief Act, but in the title of the suit the petition writer who drafted the plaint appears to have wrongly quoted the suit as having been instituted under section 9 of the Specific Relief Act and wrong quoting of the section will not in substance. alter the nature of the suit in view of the reliefs claimed therein and also the learned Qazi Court, without attending to the proposition incorrectly treated the same as suit under section 9 of the Specific Relief Act its judgment/decree. Also, in view of the relief claimed in the suit decree in favour of the respondent was passed by learned Qazi Court against which right of appeal is provided under the law, hence; revisional jurisdiction, of this Court has wrongly been invoked, therefore, in such view of the matter. as well as in view of the above noted request made by Mr. Amanullah ‑ Kanrani memo. of civil revision alongwith annexures and court‑fee be returned to the petitioners or their learned counsel, after retaining photostat copies on record of all these documents, enabling them to file appeal in the Court of Majlis‑e‑Shoora subject to all just exceptions. Order accordingly.
Parties are left to bear their own costs."
7. Pursuant to the above mentioned order the petitioners/defendants preferred appeal on 17‑10‑2001 in the Court of learned Majlis‑e‑Shoora, Khuzdar against the judgment and decree dated 27‑4‑2000 passed by the learned Qazi Mashkey. The learned Appellate Court after hearing the parties vide judgment and decree dated 31‑10‑2001 dismissed the appeal of the petitioners as barred by time and upheld the decree impugned in appeal. The petitioners have assailed the judgments/decrees respectively passed by the learned Courts below in the instant civil revision petition.
8. The learned counsel for the parties have been heard. Mr. Amanullah Kanrani submitted that the plaint was drafted by the petition writer in the Mufassil, wrongly quoted the suit as having been filed under section 9 of the Specific Relief Act, which does not affect the proceedings and trial of the case in substance as an ordinary suit for declaration and possession of property for all intents and purposes , in view of the allegations of facts as well as the reliefs claimed in the suit, but the learned trial Court specifically decreed the suit in favour of the respondent under section‑9 of the Specific Relief Act, which misled the petitioners, who assailed the decree directly in the High Court by filing revision petition. According to the learned counsel no party is to be prejudiced by an act of the Court and in the instant case, the petitioners were misled by the terms of decree and thus; instead of filing appeal against the decree of the trial Court the same was assailed in the revision petition and no sooner the petitioners realized that they had chosen the wrong forum; request was made for return of the memo. of revision petition, impugned judgment etc: enabling them to file appeal in the Court of learned Majlis‑e‑Shoora. According to the learned counsel without wastage of further time, on return of the documents, appeal was preferred in the Court of learned Majlis‑e‑Shoora. He further submitted that alongwith memo. of appeal application under section 5 of the Limitation Act was filed for condonation of the delay in filing the appeal on account of above mentioned facts, but the learned Appellate Court without deciding the question as to whether appeal filed beyond the prescribed period of Emitation was condonable or otherwise straightaway dismissed the appeal of the petitioners, as such; the impugned judgment and decree is liable to be set aside. The learned counsel emphatically contended that it was obligatory for the Appellate Court to have considered as to whether in the given facts and circumstances of the case, the delay in preferring the appeal was condonable. He further submitted that without determining the question on the point of limitation appeal should not have been dismissed as barred by time. To supplement his contentions reliance was placed on the reported judgments i.e. 2001 SCMR 1001, Ghulam Hussain v. Jamshed Ali and others; 2002 SCMR 134, Sajjawal Khan v. Wali Muhammad and others 2001. SCMR 1254 Abdul Majeed and another v. Ghulam Haider and others and 1995 SCMR 584 Sheria and 4 others v. Fazal Muhammad and 4 others.
9. Mr. Naeem Akhtar, the learned counsel for the respondent contended that the petitioners were represented by a senior counsel in the revision petition through whom the civil revision was filed in this Court against the judgment and decree of Qazi Court, therefore, the wrong advice rendered by the. counsel would not justify nor would be a sufficient cause to condone the delay in preferring the appeal beyond the prescribed period of limitation, hence; the Appellate Court appropriately dismissed the appeal as barred by time. He further submitted that since the petitioners were represented through the counsel in the revision petition, therefore, it cannot be assumed that they were misled by the decree passed by the trial Court about the suit having been decreed in favour of the plaintiff/respondent under section 9 of the Specific Relief Act. Mr.Naeem Akhtar strenuously argued that without due diligence revision petition was. filed in this Court hence; the delay in preferring the appeal was not condonable in view of the peculiar facts and circumstances of the case and mere return of the memo. of civil revision petition alongwith annexures and court‑fee to the petitioners enabling them to file appeal in the Court of Majlis‑e‑Shoora will not justify the delay to be condonable, which in terms of the order dated 4‑10‑2001 passed by this Court provided an opportunity for filing of the appeal in appropriate forum subject to all just exceptions. He maintained that since the petitioner failed to make out a case fit for the condonation of delay in preferring the appeal, therefore, the appellate decree is unexceptionable, inasmuch as; petitioners failed to justify before the Appellate Court that they had been prosecuting on the matter with due diligence He placed reliance on the reported judgments i.e. 1998 MLD 416 Rehmdil Khan and 2 others v. Ali Safdar Khan and 2 others and 1985 CLC 2529 (Lahore) Abdul Ghani v. Mst. Musrat Rehana.
10. The contentions noted above put forth on behalf of the parties have been considered in the light of the judgments and decrees passed by the learned Courts below. The case‑law cited by the parties, learned counsel have also been considered and perused carefully. It is an admitted feature of the case that against the judgment and decree passed by the learned Qazi Mashkey instead of filing appeal in the Court of learned Majlis‑e‑Shoora directly Civil Revision No. 148 of 2000 was filed in this Court and eventually on 4‑10‑2001 the learned counsel for the petitioners after having gone through the contents of the plaint, relief claimed in the suit and decree passed by the learned Qazi Court conceded to the legal position that the suit instituted by the petitioners was not a suit simpliciter for restoration of possession within the meaning of section 9 of the Specific Relief Act, but being a suit for declaration, possession and injunction, decreed in favour of the respondent was amenable to the appellate jurisdiction of learned Majlis‑e‑Shoora, hence; in such view of the matter request was made that the memo. of revision petition etc. be returned to the petitioners enabling them to file appeal in the Court of learned Majlis‑e‑Shoora against the impugned decree. After having attended to the contentions raised by the respondent's learned counsel and the request for return of the memo. of revision petition etc. vide order dated 4‑10‑2001, reproduced in para. No.6 (supra). Memo. of civil revision petition alongwith annexures was directed to be returned to the petitioners or their learned counsel enabling them to file appeal in the Court of Majlis‑e‑Shoora subject to all just exceptions. Thereafter, on 17‑10‑2001 the petitioners filed appeal in the Court of learned Majlis‑e Shoora, Khuzdar against the judgment/decree dated 27‑4‑2000 passed by the learned Qazi Mashkey. Also, an application under section 5 read with section 14 of the Limitation Act was ‑filed by the petitioners seeking for condonation of delay in preferring the appeal beyond the prescribed period of limitation on the ground that the time consumed in prosecuting the matter before the High Court may in the interest of justice be condoned, as the petitioners filed appeal within the prescribed period of limitation from the date of order i.e. 4‑10‑2001 passed in Civil Revision Petition No. 148 of 2000, and secondly; the delay in filing the appeal is condonable because the suit was decreed in favour of the respondent/plaintiff under section 9 of the Specific Relief Act. It is not disputed that the suit instituted by the .respondent was .drafted by the petition‑writer of a `Mufassil' .area arid the' same in the title was described to be a suit under 'section 9 of the Specific Relief Act for declaration and possession; whereas; relief of injunction was also claimed in the prayer clause of the suit. It has been contended on behalf of the petitioners that they were misled that suit was instituted under section 9 of the Specific Relief Act and the terms of decree passed by the Qazi Court for the suit having been decreed under Section 9 of the Specific Relief Act for which the petitioners may not be penalized/non suited, inasmuch as; even if the appropriate remedy was not availed by their appointed counsel the same should not in the given facts and circumstances of the case result in depriving the petitioners to avail the appropriate remedy of appeal by condoning the delay resulted due to prosecuting the matter by way of civil revision petition. It is worthwhile to note that the learned Appellate Court mainly dismissed the appeal as barred by limitation on the ground that the time consumed in prospecting the matter before this Court was not directed to be excluded from the period of limitation prescribed for preferring the appeal and independently it was not determined by the learned Appellate Court that the delay caused in filing the appeal before the Majlis‑e‑Shoora in the given facts of the case was condonable or otherwise.
It was held by the Honourable Supreme Court in the case of Sherin and 4 others v. Fazal Muhammad and 4 others (1995 SCMR 584) that `due diligence' and `good faith' for enlargement of time prescribed by section 14 of the Limitation Act, 1908 in terms apply only to the suits and applications, but not to appeals, whereas; section 5 of the said Act is applicable to the appeals and therefore, the expressions `due diligence' and `good faith' appearing in section 14 of the Act do not figure in section 5 and the condition prescribed in the latter section for its applicability is `sufficient cause' which Is, however; not capable of connotation, with exactitude and ,would differ from case to case, therefore, the question of condonation of delay in filing an appeal has to be examined on the basis of section 5 of Limitation Act and not on the basis of section 14 of the Act. Referring to the facts of the case, the Honourable Supreme Court noted and found that some of the appellants are utterly illiterate and such fact was inferable from the factum of thumb‑impressions put by them on the documents forming part of trial Courts' file, while, another appellant is not an educated person who presumably can only write his name, accordingly; it was observed by the Honourable Supreme Court that in our system of law, when a litigant, placed in the situation as the appellants were, has to do for redress of his grievance, through a Court of law is to engage‑ a counsel, which the appellant did. It was further observed by the Honourable Court that the appellants did not make contribution in the institution of appeal in the District Court and there was no allegation that. they stood to gain thereby or were guilty of any mala fide. conduct on he filing of appeal in the District Court was entirely attributed to the, carelessness of the appellants' counsel, who .represented them in the trial Court and was not unaware of the amount of court fee paid on the plaint by the respondent, on the objection of the appellants, which determined the forum of appeal. He also appeared for the appellants in the High Court. The Honourable Supreme Court having noticed the conduct of the Advocate in filing the in the District Court observed that if the law has to march with changing of time some restraint needs to be exhibited by the Court in imposing too large a burden on a litigant for the lapses of his counsel. The Honourable Court having elaborately considered provision of Order VII, Rule 10, C.P.C. in view of provisions of Order YLI, C.P.C. with reference ‑to section 107, C.P.C: and the earlier reported judgment of the Honourable Supreme Court in the case of Siddique Khan v. Abdul Shakoor (PLD 1984 SC 289) in somewhat similar situation wherein it was held that section 107(2), C.P.C. is also applicable to memorandum of appeal and thus; in the former quoted case‑law it was held by the Honourable Court that the provisions of Order VII, rule 10, C.P.C. are mandatory and the Court has no jurisdiction to hear the suit. It is under a compulsion to return the plaint for presentation before the proper Court and thus; there is no reason to whittle down the imperative character of this provision while applying it to the Appellate Court. The Honourable Court further observed that all the public authorities including the judicial functionaries while doing an act enjoined by law or merely empowered to do it must not do it improperly. Quoting and referring to the legal maxim `actus curiae' the classic remarks of Lord Eldon in Pulteny v. Warren (1801) 6 Ves. 73, 92 quoted by Maclean, C.J. Lakhan Chunder Sen v. Madhu Sen (ILR 35 Calcutta 209) were reproduced as under: ‑‑
"If there be a principle, upon Courts of justice ought to act without scruple, it is this; to relieve parties against that injustice against that injustice occasioned by its own acts or oversights at the instance of the party, against whom the relief is sought. That proposition is broadly laid down in some of the cases. This view was approved of by the House. of Lords in the East India Company v. Campion (1837) 11 Bli. (N.S.) 158."
Observations of Lord Cairns, L.C. in Rodger v. The Comptoir d'Escompte de Paris (1871) 3 PC 465, quoted with the approval by Lord Carson in Jai Berham v. Kedar Nath (AIR 1922 PC 269) were also reproduced in former case‑law i.e 1995 SCMR 584 as under:‑‑
"One of the first and highest duties of all Courts is to take care that the act of the Courts does not cause injury to any of the suitors and when the expression `the act of the Court' is used, it does not mean merely the act of the primary Court, or of any intermediate Court of Appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. "
The above‑quoted rule, which perhaps was in somewhat close proximity of the case before Honourable Supreme Court was demonstrated by application in Hiddayatullah v. Murad A Khan (PLD 1972 SC 69) in which the Honourable Court stepped in to relieve the appellants before the Court of the wrong caused to them by the act of the trial Court.
The Honourable Supreme Court lastly adverting to the case before it held that omission on the part of the District Judge to take timely action as major cause of refilling of‑ the appeal by the appellants in the High Court, out of time, who have the victim of the act of Court which furnishes `sufficient cause' under section 5 of the Limitation Act for condonation of delay and the fact that after receiving the memo. of appeal from the District Court some time was consumed by the appellants in presenting the appeal to the High Court in the circumstances of the case is inconsequential, therefore, the Honourable Supreme Court condoned the delay in presenting the memo. of appeal to the High Court and thus; the first appeal filed by the appellants in the High Court was treated as pending and directed to be disposed of afresh on merits in accordance with law.
The Hon'ble Court in its elaborate judgment (PLD 1972 SC 69), with regard to the facts of the case before it observed that "had the trial Court disposed of the application soon after it was filed, the difficulty faced by the pre‑emptors would not have arisen and maintained "there was, as we have already pointed out, a very good and substantial reason .for the extension of time, because, even assuming that no application was made by the appellants for such extension of time, the Court, in the interest of justice, was fully competent suo motu to extend the time when it had by its own act made it practically impossible for the appellants to comply with its original order by adjourning the application for furnishing security to the 6th of January, 1968".
Furthermore; in the quoted reported judgment, (1995 SCMR 584) the Hon'ble Supreme Court also made reference to the observation recorded by the Allahabad High Court in the case of Hari Ram v. Akhtar Hussain (ILR 29 All. 749) reproduced hereinbelow:‑‑
"The mistake may in its origin be the mistake of plaintiff; by the time the plaint has been registered, the mistake has become the mistake of the Court. If the Court or the Munsarim discovered the plaintiff's mistake before registration of the plaint, the plaint would at once be rejected under section 54 of the Civil Procedure Code and never registered at all."
The above noted observations were recorded by the Full Bench of the Allahabad High Court and held that the occasion to adjudicate upon the defendants, in a pre‑emption suit that mistake in court‑fee by a party is not covered by section 28 of Court Fees Act, 1870, and it applied only when a document not properly stamped, was received and used by the Court or office by mistake or inadvertence. The objection was repelled with the observations referred to above, and were noted as quite instructive.
In the reported judgment (1995 SCMR 584) as regards filing of appeal in a wrong Court on account of mistaken advice of counsel, it has been observed that the same would not by itself justify for condonation of delay but when the litigant and the counsel have acted with due care and caution and their conduct does not smack of negligence, the institution of appeal in the wrong forum could constitute a "sufficient cause" within meaning of section‑5 of the Limitation Act for condonation of delay. Similarly in the case of Abdul Majeed and another v. Ghulam Haider and others (2001 SCMR.1254) it was held that the "ill‑advice even by a lawyer is not a ground for extension of time of limitation for filing of appeal in wrong forum but where the litigant and the counsel had acted with due care and caution and their conduct did not smack of negligence, the institution of appeal in wrong forum could constitute a sufficient cause within the meaning of section 5 of Limitation Act, 1908. The same rule was followed in the case of Abdul Ghani v. Mussarat Rehana by the Hon'ble Division Bench of the Lahore High Court (1985 CLC 2529) cited by the respondent's learned counsel and it was held by the Hon'ble Court that error in filing appeal in the Court of District Judge, was so patent, that it could have been avoided by exercising due care, thus wrong advice of a counsel does not furnish a foundation for enlargement of time, consequently; application filed under sections 5 and 14 of Limitation Act for condonation of delay Was rejected. In the case of Rehmdil Khan and 2 others v. Ali Safdar Khan and 2 others (1998 .MLD 416) civil petition for leave to appeal was dismissed by the Hon'ble Supreme Court (AJ&K) in view of the rule laid down in the reported judgments of the Hon'ble Supreme Court on the subject i.e. 1985 SCMR 890, 1992 SCR 292 and 1992 SCR 98 and it was held that delay for filing of case due to wrong advice of counsel was not a sufficient cause for condonation of the delay as the same did not constitute bona fide mistake and; the party could claim compensation from counsel for his negligence if so advised.
11. It has consistently been held by Hon'ble Supreme Court as well as in the above‑quoted reported judgment that negligence on the part of counsel or wrong advice of counsel resulting into filing of appeal in a wrong forum/Court would not by itself be a sufficient cause for condonation of delay in resorting to an appropriate remedy unless it has been shown that the aggrieved party or his counsel; as the case may be, acted with due care and caution in availing the remedy amounting to sufficient cause for condonation of delay in filing the appeal within the meaning of section 5 of the Limitation Act. Keeping in view the dictum laid down in the judgment of Hon'ble Supreme Court of Pakistan referred to above and applied by the Hon'ble Court in the case of Sherin and 4 others v. Fazal Muhammad and 4 others (1995 SCMR 584); in the given circumstances of this case which are similar and identical to the case before the Hon'ble Supreme Court hence the same needs be considered and attended to from the angle that first and highest duties of a Court is to take care that the act of the Court does not cause injury to any of the suitors, as well as in view of the observation made by the Hon'ble Supreme Court in the above mentioned reported judgments referred to in para. No.10 supra. It is worthwhile to note that the petitioners in the instant case through their appointed counsel, instead of filing appeal against judgment and decree dated 27‑4‑2000 passed by Qazi Mashkay, in the Court of 'Majlis‑e‑Shoora, filed civil revision petition directly in this Court within prescribed period of limitation meant for filing of appeal in the Court of Majlis‑e‑Shoora which was entertained by the Additional Registrar of the Court without objection as to the competency of the revision petition against the final decree passed by the Qazi Court, (though; not obligatory for the officer of the Court to have recorded objection) and to have fixed the matter for orders of the Court. Eventually before admission of revision petition, the learned counsel for the petitioners on the date fixed in the matter Le 4‑10‑2001 after having gone through the contents of plaint, relief claimed in the suit and decree passed by learned Qazi Court, and; the objection raised by the learned counsel of the respondent, conceded to the legal position that the decree passed by original Court was appealable before Majlis‑e- Shoora and this Court after hearing the parties' learned counsel vide order of even date reproduced in para. No.6 supra directed that memo. of revision petition etc. be returned to the petitioners or their learned counsel for preferring appeal before the competent forum/Appellate Court. The case file relating to Civil Revision No.248 of 2000 shows that on the very next date i.e. 5‑10‑2001 these documents were returned to the petitioners and the petitioners thereafter filed appeal in the Court of learned Majlis‑e‑Shoora, Khuzdar on or about 14‑10‑2001. Apart from the ill‑advice of the teamed counsel, it is worthwhile to note that the Additional Registrar of this Court who entertained the revision petition to have noted objection with regard to the incompetency of the petition which was not done with the result that for one or the other reason the matter remained pending till the date parties' learned counsel were heard and order was passed by the Court on the same date and during this period the time for preferring appeal against decree before the competent forum stood elapsed hence the rule highlighted, followed and applied by the Hon'ble Supreme Court in the above mentioned referred reported case that act of Court should not non‑suit any party to the proceeding, equally applies to the facts of the instant case, as had the civil revision petition entertained by the officer of the Court subject to objection or fixed for orders of the Court on such objection or the same if had been returned to the petitioners within the period of limitation for filing of appeal before the competent forum or an appropriate order if were passed by the Court as to the competency of civil revision petition within such period; the appeal subsequently preferred against decree of the Qazi Court would not have become time‑barred, therefore, the petitioners who engaged the services of counsel being aggrieved of the decree of the trial Court, should not suffer and be not non‑suited for none of their fault hence in the given circumstances of the case the delay occurred in preferring appeal before Majlis‑e‑Shoora for the above mentioned reasons is condonable within the meaning of section 5 of the Limitation Act which stands accordingly condoned.
The result is that the impugned appellate judgment and decree are set aside and appeal filed by the petitioners shall be treated as pending on the file of the Majlis‑e‑Shoora, Khuzdar which be decided after hearing the parties on its own merits in accordance with law. This civil revision petition is partly allowed in the above terms, leaving the parties to bear their own costs.
M.H./7/Q Case remanded.