MUHAMMAD SIDDIQ Versus AL HAIDER CONSTRUCTION COMPANY
Appellants Muhammad Siddique and Mohammad Rahim have challenged an order dated 23‑5‑1987 passed by the 3rd Senior Civil Judge, Hyderabad in F.C. Suit No.56 of 1980.
2. Said suit was filed by respondent Al‑Haider Construction Company against the appellants for specific performance of a sale agreement dated 10‑7‑1976, pertaining to purchase of 3 acres of land out of Survey No.606 of Deh Jamshoro, for an amount of Rs.60,000. Respondent claimed to have paid' Rs.5,000 as earnest money and prayed, that the appellants be called upon to execute the sale‑deed and get the same registered in his favour.
3. Notice of the suit was issued to the appellants who were represented by an Advocate namely Mr. Ghulam Rasool Shah, Advocate for the appellants sought adjournments for filing the written statement, .on various dates. Subsequently on 24‑11‑1982 a compromise application Exh. No.28 was filed in the suit and the suit was ordered to have been dismissed. Subsequently on 28‑11‑1982 respondent moved an application for restoration of the suit on the ground that the compromise application was not authorized by him to be filed and the same appeared to have not been pressed. Notice of said application was issued by the trial Court to the appellants for 4‑12‑1982, when objections were filed to said application alongwith counter‑affidavit of appellant Muhammad Siddique. Thereafter, affidavit‑in‑rejoinder was filed by Ghulam Muhammad on behalf of the respondent on 13‑12‑1982. The trial Court passed an order on 26‑2‑1983 recalling its earlier order dated 24‑11‑1982 and then put off the matter to 28‑3‑1983 for consideration of the compromise application dated 24‑11‑1982, which was ordered to have been revised. Said order dated 26‑2‑1983 Exh. No.38 has been shown in the case diary to have been passed on 22‑2‑1983. On 14‑4‑1983 respondent's Advocate filed statement Exh. 39 to the effect that the respondent was not party to the compromise application and did not admit its contents. This statement was supported by' an affidavit of one Ghulam Muhammad. Under an order dated 8‑4‑1985 which was a date of hearing in the case, the trial Court ordered the parties to appear before him personally on 14‑5‑1985 for the purpose of admission or denial of contents of the compromise application. Ultimately on 28‑7‑1986 the compromise application was found to have become infructuous in view of order of dismissal passed on 24‑11‑1982. Matter was fixed for filing of the written statement on 20‑8‑1986 but the appellants did not appear and their Advocate was also absent and the Court ordered the suit to proceed ex parte against the appellants. Ultimately the suit was decreed ex parte on 26‑8‑1986 and such decree was prepared and signed by the Court on 26‑10‑1986.
4. The appellants moved the trial Court with an application under Order 9, Rule 13 of C.P.C. for setting aside of the ex parte decree. Respondent opposed the application contending that it was not maintainable and was time‑barred. Learned trial Court after hearing learned counsel for the respondent dismissed appellants' application under Order 9, Rule 13 of C.P.C. under an Order dated 23‑5‑1987.
5. On 1‑8‑1987 the appellants filed appeal in the District Court Hyderabad against the order dated 23‑5‑1987 by which the trial Court declined to set aside the ex parte decree. The appeal was, however, returned by learned 4 th A.D.J., Hyderabad on the ground that the District Court had no jurisdiction in the matter. Thereafter, the appeal was filed in this Court on 3‑11‑1987.
6. Mr. Ahmed Ali Shaikh, learned counsel for the appellants argued that since the appellants initially invoked the jurisdiction of the District Court under bona fide belief that said Court had jurisdiction in the matter, hence the time for which the appeal was pending in the District Court, will have to be taken into consideration, in view of section 14 of the Limitation Act, in computing the period of limitation prescribed for filing the appeal. In this respect learned counsel cited the case of Saddaruddin v. Allah Rakha (1984 CLC 1258) and A.F.M. Kutubuddowo v. Muhammad Sadeq (PLD 1961 Decca 246). It was further argued that application of the appellants under Order 9, Rule 13, C.P.C was to be filed within the period prescribed by Article 181 of the Limitation Act and not by Article 164 of the Limitation Act and that the application under Order 9, Rule 13 of C. P. C. moved on 11‑11‑1986 was within time because the ex pane decree was prepared on 26‑10‑1986. Appellants applied for copy of the order dated 23‑5‑1987 on 31‑5‑1987 and they were supplied the copy on 1‑8‑1987 and consequently their appeal in the District Court was within time. It was also argued that the impugned order dated 23‑5‑1987 was a void order and consequently no period of limitation would run against such an order.
7. Mr. Naimatullah Soomro, learned counsel for the respondent submitted that the appeal against the impugned order dated 23‑5‑1987 was to be filed within a period of 90 days as per Article 156 of the Limitation Act but the same was filed on 3‑11‑1987 and it was time‑barred as it was to be filed by 23‑8‑1987. Referring to the case of Saddaruddin (1984 CLC 1258) it was argued that said case was in respect of a suit and not in respect of an appeal. It was further argued that the appellants did not file their appeal in the District Court bona fidely and they were not entitled to benefit of section 14 of the Limitation Act. It was further argued that the application under Order 9, Rule 13 of C.P.C was to be filed within 30 days from date of the ex pane judgment as per Article 164 of the Limitation Act and not from the date of preparation of the ex parte decree. Reliance was placed on Order 20, Rule 7 of C.P.C and on the case of M/s. Sameena Limited v. Federation of Pakistan (PLD 1978 Kar. 818). Lastly it was argued that the appellants had to show sufficient cause for setting aside of the ex parte decree and that application of the appellants Exh. No.59 did not contain sufficient grounds for setting aside of the ex parte decree. Learned counsel for the respondent cited the cases of (i) Ch. Mohammad Sharif v. Mohammad Ali Khan and others (1975 SCMR 259), (ii) Abdul Ghani v. Ghulam Sarwar (PLD 1977 SC 102), (iii) Mst. Jamila Begum and others v. Abdullah Jan and others (PLD 1988 SC 409), (iv) Shabbir Ahmed and others v. Muhammad Yousuf and others (1986 MLD 187), (v) Manzoor Hussain and others v.. Mohammad Ali and another (1989 SCMR 1498) and (vi) Muhammad Anwar v. Government of the Punjab and others (1989 S CMR 1631).
8. First and foremost point to be determined is about filing of the appeal by the appellants before a wrong Court viz. District Court, Hyderabad on 1‑8‑1987 instead of this Court where the same was filed on 3‑11‑1987. Appellants want exclusion of the time for which the appeal remained pending in the District Court, from the period of limitation in view of section 14 of the Limitation Act. In the case of A.F.M. Kutubuddowo v. Muhammad Sadeq (PLD ,1961 Dacca 246) the plaintiff was prosecuting with due diligence another civil proceeding on the same cause of action and the High Court at Dacca took view that the case was fully covered by the Privy Council decision reported in 1920 CWN 522 and that the limitation would remain suspended till the decision of the Supreme Court another civil suit. In the case of Sadaruddin v. Allah Rakha (1984 CLC 1258) the plaintiff‑ had brought the suit which he subsequently withdrew with permission of the Court to file a fresh one and it was held that in the freshly instituted suit the plaintiff shall be bound by the law of limitation as if the first suit had not been instituted. This was not the position in the present case. Now I deal with the cases cited by learned counsel for the respondent. In (i) above the advocate alleged that he had appeared in a very few cases appealable to the District Judge and under misconception he filed appeal in the District Court and immediately took it back and filed the same in the High Court on discovery of his mistake. The High Court declined to extend the benefit of section 14 of Limitation Act to the appellant and this was' approved by the Supreme Court of Pakistan which held that failure to acquaint himself with relevant provisions of law relating to jurisdiction of the Court amounted to negligence on part of the counsel. In (ii) above the petitioner had valued his claim at a sum for exceeding pecuniary jurisdiction of the District Court and filed the same in the District Court from where it was returned for want of jurisdiction after expiry of the period of limitation. The petition filed a fresh memorandum of appeal in the High Court and raised contention that the appeal was filed in the District Court due to wrong advice of his counsel and that he was misguided by the District Court which granted to him ad‑interim injunction and transferred the appeal to an Additional District Judge and that the principle of actus curiae nemonim gravalsit applied. In the circumstances the Supreme Court held that the petitioner having himself valued his claim at a sum far exceeding pecuniary jurisdiction of the District Court, it was not possible to understand how any Advocate could advise filing of the appeal in the District Court which was under no obligation to advise the petitioner how to prosecute his, remedy and that the principle of maxim "actus curiae nemonim gravalsit" was not attracted. In (iii) above it was held that in order to take advantage of the provisions of subsection (2) of section 14 of Limitation Act, a litigant has to show that he had been prosecuting another civil proceedings with due diligence and that the other civil proceedings were prosecuted in good faith. In said case the appellant filed a civil suit within 10 days of confirmation of the sale, instead of approaching the executing Court under Rule 90 of Order 21, C.P.C., for getting the sale set aside, although the suit was barred by Rule 92 (3) of Order 21, C.P.C. In these circumstances, it was held that clear and unequivocal provisions of law were disregarded and it was not a case where due diligence was shown in filing the civil suit and consequently benefit of section 14 of Limitation Act was not given to the petitioner. In (iv) above the appeal was firstly filed in a District Court where objection was taken about competency of the District Court, and the District Court returned the appeal for‑ want of jurisdiction and then the appeal was filed in the High Court. In the circumstances, a learned Single Judge of this Court took view that negligence and gross lack of care on part of the counsel for the appellant in choosing to file appeal in wrong Court despite explicit provisions of law, could not be described as a bona fide mistake on part of an advocate and that no case was made out for exclusion of the time spent in prosecuting appeal before the District Court for the purposes of section 14 of the Limitation Act. In (v) above, the petitioners filed appeal before the District Judge but the same was returned for presentation in the High Court where the appeal was dismissed as time‑barred, after recording of finding that conduct of the petitioners was not bona fide 'and their Advocates who advised them to file appeal in the District Court did not act in such a manner as to either exclude the delay under section 14 of the Limitation Act or to condone the same under section 5 of the same Act. Supreme Court of Pakistan maintained such order of the High Court. In (vi) above, the stand taken by the petitioners before the Service Tribunal was that under a mistaken legal advice they had taken resort to the Civil Court and to the High Court and for that reason they were entitled in computing limitation to the deduction of the period spent in pursuing their remedy in the Civil Court and in the High Court. Such plea was rejected by the Service Tribunal whose order was maintained by the Supreme Court. In view of the aforesaid authorities there is force in the objection of learned counsel for the respondent that this appeal having been filed in this Court on 3‑11‑1987 challenging impugned order dated 23‑5‑1987 was time‑barred even if it may not be time‑barred on 1‑8‑1987 when it was filed in the District Court. Out of two authorities cited by learned counsel for the appellant, one reported in 1984 CLC 1258 goes against him although cited case was not identical to the instant case. The only case cited by counsel for the plaintiff where section 14 of the Limitation Act was held to be applicable was the one reported as PLD 1961 Decca 246, which was not identical to the instant case. In the Decca case the plaintiff was held to be prosecuting another civil proceedings with due diligence. In the instant case "due diligence" was lacking.
9. The suit was decreed ex parte on 26‑8‑1986 and the ex parte decree was prepared on 26‑10‑1986 while the application under Order 9, Rule 13, C.P.C. was moved on 11‑11‑1986. In this respect learned counsel for the appellants contended that he had to file such application within three years from 26‑10‑1986, which was the date for preparation of the decree. Article 181 of Limitation Act governs applications for which no period of limitation is provided elsewhere in 1st Schedule below Limitation Act or by section 48 of the C.P.C Learned counsel for the respondents argued that the case would be covered by Article 164 of Limitation Act and the period of limitation would run from 26‑8‑1986 and not from 26‑10‑1986. On this point learned counsel cited the case of M/s. Sameena Limited v. Federation of Pakistan (PLD 1978 Karachi 818) where a learned Single Judge of this Court (now Chief Justice) held that for the purpose of Article 164 of the Limitation Act, the date of the decree as per Order 22, Rule 7 of C.P.C was the date of judgment and the period of limitation of 30 days for moving an application under Order 9, Rule 13 of C.P.C was to be reckoned from the date of the decree cited case leaves no further scope for discussion of this point and I can conveniently hold that the appellants should l have moved their application under Order 9, Rule 13 within 30 days from 26‑8‑1986 as their case was covered by Article 164 of the Limitation Act. Consequently their application under Order 9, Rule 13 moved on 23‑5‑87 was clearly time‑barred.
10. Since the application under Order 9, Rule 13 of C.P.C. as well as present appeal were hopelessly time‑barred, there is no need to discuss the facts of the case. Consequently I dismiss this appeal with no order as to costs.
A.A./M‑2144/K Appeal dismissed.