ABDUL KHALIQ Versus Syed MUHAMMAD ZAHOOR HUSSAIN SHAH Mehr Abdul Ghafoor Arain , Muhammad Jaffar Javed Khan
ORDER
C.M. No.2-C of 2009
This is an application for condonation of delay in filing the appeal before this Court.
2. In a suit for recovery of Rs.47,45,176/- filed by the respondent, learned trial court passed a decree for recovery of Rs.13,96,105/- on 30.7.2007 against the applicant-appellant. The applicant preferred an appeal before the learned District Judge, Vehari on 26.9.2007, the same was returned to him on 16.3.2009 on the ground that the court has no pecuniary jurisdiction to hear and decide the ppeal and the same was filed before this Court on 6.5.2009.
3. Learned counsel for the applicant submits that as originally the suit was for rendition of account, therefore, for the purposes of fixing the value of the suit for court fee and jurisdiction, the original decree will be considered as the value of the suit, therefore, same is Rs:13,96,105/- and the appeal was competent before the learned first appellate court and the learned appellate court has wrongly returned the appeal.
When confronted that whether the applicant has challenged the order dated 16.3.2009 passed by learned first appellate court where it was ordered that appeal be returned, the answer is in negative. Learned counsel states that the counsel has wrongly received the appeal and filed before this Court, therefore, learned counsel was asked that he should first take one and specific stand before this Court as he cannot blow hot and cold in the same breath, then learned counsel states that this appeal is now before this Court, therefore, states that he prays for condonation of delay. Relies on " Nazar Muhammad and another v. Mst. Shahzada Begum and another (PLD 1974 Supreme Court 22), " Abdul Ghani v. Ghulam Sarwar " (PLD 1977 Supreme Court 102) and " Ghulam Ali v. Akbar alias Akoor and another " (PLD 1991 Supreme Court 957).
4. On the other hand, learned counsel for the respondents while relying upon " Muhammad Ayub and 4 others v. Dr. Obaidullah and 6 others " (1999 SCMR 394) has vehemently opposed the arguments advanced by learned counsel for the applicant by saying that no ground for condonation of delay has been explained. Prays that this application be dismissed.
5. We have otherwise seen that when in the earlier round of litigation a decree for recovery of Rs.41,45,176/- was passed on 30.9.1999. He preferred R.F.A. No.106 of 1999, which was accepted on if 15.12.1999 and matter was remanded to the learned trial court. This remand order dated 15.12.1999 passed by this Court was further challenged before the august Supreme Court of Pakistan, which was maintained by the august Supreme Court of Pakistan with some variation vide order dated 6.2.2007. In this view of the matter, the stand of the learned counsel that fixation of jurisdictional value for appeal is in accordance with the original decree in a suit for rendition of account is not sustainable, as originally the suit was filed for rendition of account which was subsequently converted into suit for recovery of specific amount, therefore, it became the suit for recovery and in previous round the stand taken by the applicant was not accepted that it is a suit for rendition of account. When asked to the learned counsel that when it is a suit for recovery and the value for the purposes of court fee and jurisdiction for forum of appeal, the value fixed by the plaintiff in the suit or varied by the learned trial court is considerable. Admittedly, in the plaint value of the suit is Rs.47,45,176/- and same is also mentioned in the decree sheet and the learned trial court has not varied the value of the suit fixed by the plaintiff for the purposes of court fee and jurisdiction, therefore, the appeal was competent before this Court. If filing of the appeal before wrong forum and pendency of the same before the wrong forum be condoned then applicant is required to explain the delay of each day from the date of return of appeal from the court of Additional District Judge to the date of filing of the appeal before this Court. We have noticed that neither in the application the same has been pleaded nor any specific explanation for the delay of each day has been offered or argued by the learned counsel for the applicant. When there is no specific pleading with regard to explanation of each day's delay in filing of the appeal, when same has been filed after return from the wrong forum with a delay of about one month and twenty days without any explanation of delay of even one day, therefore, this delay cannot be condoned.
6. The case law referred by learned counsel for the applicant is not applicable to the facts of this case, therefore, same is not helpful for the applicant. In this view of the matter, no case for condonation of delay has been made out. Resultantly, we dismiss this C.M., when C.M is dismissed and delay has not been condoned, the appeal is also dismissed.
ZC/A-26/L Appeal dismissed.