MUHAMMAD ANWAR Versus AHMAD BIBI
This F.A.O. is directed against the order, dated 12-4-1990, by which a learned Civil Judge at Faisalabad declined to grant temporary injunction to the appellant in a suit brought by him against the respondents for the specific performance of contract of sale based on agreement to sell, dated 15-7-1983, for the sale price of Rs.3,75,000 in respect of a piece of land measuring 109 Kanals, 15 Marlas situated in the area of Chak No. 126/R-B., District Faisalabad.
2. With reference to Civil Miscellaneous No.48-C of 1992, the learned counsel for respondents Nos.2 to 4 and 6 raises a preliminary objection to the effect that the appeal is time-barred and is liable to be dismissed on this ground alone. He submits that the impugned order is, dated 12-4-1990, and the appellant, instead of filing appeal in the High Court, filed an appeal before the learned District Judge, Faisalabad, which was returned to him on 6-3-1991 for presentation to the proper Court and eventually it was instituted in this Court on 16-3-1991. According to the learned counsel, by the time the appellant filed this appeal the limitation had already expired and the appellant being conscious of this fact had alongwith memorandum of appeal filed an application under section 5 of the Limitation Act for the condonation of delay but at the time of admission of this appeal to regular hearing on 5-5-1991, this fact was not brought to the notice of this Court. He contends that the appellant suppressed this fact and he is not entitled to the discretionary relief being sought by him through this appeal. In his opinion, the institution of appeal in a wrong forum, may be on the advice of a counsel, is not a valid ground for the condonation of delay under section 5 of the Limitation Act. In this connection he places reliance on PLD 1977 SC 102 and PLD 1991 SC 102.
3. Learned counsel for the appellant, who has the support of the learned counsel for respondent No. 1, in reply to the preliminary objection, submits that there is a contrary view to the one urged by the learned opposing counsel but he has not been able to bring the case-law on the subject. This is not enough to ignore the preliminary objection raised on behalf of contesting respondents duly supported by the case-law.
4. Even on merits the appellant does not seem to have a good case because the learned counsel of the appellant concedes that his client has not made any endeavour for becoming party to the suit of Muhammad Nawaz, which was decreed by the trial Court but was dismissed by the appellate Court and the High Court and now the matter has reached the Supreme Court and in that suit he was representing Mst. Ahmad Bibi, respondent No. 1, as an attorney. This sort of conduct on his part operates against him because had he really purchased the suit land from the respondent, he would have contested the said suit independently and not as the attorney of respondent No. 1, his maternal aunt. The suit brought Muhammad Nawaz against the respondents was also for specific performance of the contract of sale in respect of the land which is now in dispute Therefore the appeal besides being time barred, even on merits has no substance. It is, therefore, dismissed.
A.A./M-2569/L Appeal dismissed.