SHERIN And Others vs FAZAL MUHAMMAD And Other
This matter concerns a petition for leave to appeal against a judgment of the Peshawar High Court, which dismissed an appeal as time-barred. The petitioners had initially filed an appeal against a civil decree before the District Judge, Swat, who subsequently returned the appeal for lack of jurisdiction. Upon refiling in the High Court, the appeal was dismissed because the court found the petitioners had not acted with due diligence or in good faith, denying them the benefit of condonation of delay under the Limitation Act. The petitioners argued that they relied on the original suit valuation and that court officials had a duty to point out jurisdictional defects earlier. The Supreme Court granted leave to appeal to examine the standard of care and diligence required of appellants when filing appeals, and whether a duty is cast upon court officials to timely identify and record objections regarding jurisdictional defects. The Court seeks to determine if the petitioners' reliance on the initial valuation and the subsequent delay in refiling warrants the protection of the Limitation Act.
- What is the standard of care and diligence required of appellants when preferring an appeal to a court that may lack jurisdiction?
- Is there a duty cast on court officials to record objections regarding defects of jurisdiction upon the filing of an appeal?
- Within what period of time must court officials identify and communicate jurisdictional defects to an appellant?
- Section 14(1), Limitation Act 1908
ORDER
RUSTAM S. SIDHWA, J.---This is a petition by Sherin and others, petitioners, seeking leave to appeal against the judgment of the Peshawar High Court, Peshawar, dated 26-6-1989.
2. The suit for declaration and permanent injunction filed by Fazal Muhammad and others respondents, was decreed by the Senior Civil Judge, Swat, on 21-2-1984. Sherin and others, petitioners, preferred an appeal against the above judgment before the District Judge, Swat. On 1- 12-1985 the learned District Judge held that he had no jurisdiction and returned the appeal to the petitioners for presentation before the competent Court. The petitioners thereupon refiled the appeal before the Peshawar High Court on 15-12-1985. On 26-6-1989 it was officially dismissed on the ground that the petitioners had not acted with due diligence and in good faith by Filing the appeal before the District Judge, Swat, instead of the High Court, so as to entitle them to condonation of delay under section 14(1) of the Limitation Act and that the petitioners were also unable to explain the delay in refiling the memorandum of appeal in the High Court.
3. On behalf of the petitioners it is submitted that the appeal filed before the District Judge on the valuation recorded on the original suit, which valuation was never changed, was sufficient to entitle a counsel preferring an appeal to treat that as proper valuation and the appeal having been preferred with due diligence, petitioners were entitled to the benefit of section 14 of the Limitation Act. It is further submitted that there was some duty of the Court officials who should have pointed out the objection regarding valuation, assuming the same was there, immediately or within a day or so of the filing of the appeal, which, if it had been done, would have put the petitioners on guard and they would immediately have refiled the appeal in the High Court. In this connection Akbar Ali and others v. The Province of the Punjab 1989 SCMR 1040 is referred.
4. What should be the standard of care and diligence required of appellants when preferring their appeals and whether any duty is cast on the Court officials entertaining the appeals to record objections as regards defect of jurisdiction etc. And, if so, within what period of time, require examination.
5. Leave is therefore granted in this case to consider all these and other connected questions. The petitioners shall furnish security in the sum of Rs.5,000. The appeal shall be heard on the basis of the present record. Parties are at liberty to file such further documents which they consider necessary and proper for the full and final disposal of the appeal.
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- MUHAMMAD RAMZAN and 4 others vs Mst. MASOODA HASAN and 2 others 1993 PLD Queeta 88