Mst. KHADIJA BEGUM and 2 others vs Mst. YASMEEN and 4 others

NAZIM HUSSAIN SIDDIQUI, J.---This appeal with leave of the Court is directed against the judgment dated 27-3-2000 of a learned: Division Bench, Lahore High Court, Multan Bench, passed in Regular First Appeal No,95 of 1997, whereby appeal of the appellants was dismissed as barred by limitation.

2. The predecessor-in-interest of the appellants and the respondents was one Mushtaq Alam son of Muhammad Siddique, hereinafter referred to as "the deceased". He expired on 7-2-1991. He had married twice; respondent No,3 Mst. Khadija Bano is his first wife. He has a daughter and a son from her namely, Mst. Yasmeen and Sarfraz Zahid, the respondents Nos. 1 and 2 herein respectively.

3. Second wife of the deceased is Mst. Khadija Begum, the petitioner No, 1 . Mst. Sadaf and Mst.

Shaista are his two minor daughters from petitioner No,.

4. The property in suit is plots Nos.83 and 85, situated in Street No,21, Block S, New Mutlan Colony, Multan and Property No,363, which is at Street Hafiz Noorud Din Wali, Chowk Bazaar, Multan. The respondents Nos.1 to 3 on 18-2-1991, filed a suit before learned Senior Civil Judge, Multan, claiming their shares in the property left by the deceased and also claimed peretual injunction against appellants from disposing of the same without its proper partition. They also prayed to restrain them from interfering with their possession with regard to upper storey of the Property No,363.

5. The appellants resisted claims of the respondents and asserted that Plot No,85 did not belong to the deceased. Instead it belonged to his sister and that the deceased as attorney of her sister, sold it. For Property No,83, the appellants claimed that the same was transferred, through a registered will, by the deceased to the appellants. About Property No,363, they maintained that it was transferred to the appellant No,1, in lieu of her dower. The appellants also asserted that respondent No,3 was divorced by the deceased in his lifetime.

6. From pleading of the parties, the following issues were settled:--

(1) Whether the deceased Mushtaque Alam was owner of the suit property at the time of his death?

OPP

(2) Whether the deceased has divorced the plaintiff No,3? OPD

(3) Whether the plaintiffs are co-owners in the suit property? If so, what is their share? OPP

(4) Whether the suit is bad for non-joinder and misjoinder of necessary parties? OPD

(5) Whether the plaintiffs have got no cause of action to file this suit? OPD

(6) Whether the suit is not properly valued for the purposes of court-fee? If so, what is the correct value of the suit? OPD

(7) Whether the suit is barred by time? OPD

(8) Whether the suit is mala fide and vexatious and the defendants are entitled to get special costs? OPD

(9) Whether the plaintiffs are entitled to the decree for partition as prayed for? OPD

(10) Whether the suit property is partitionable? If so, what is the mode of partition? OPP

(11) Relief.

7. Trial Court after recording oral evidence and having taken into consideration the documentary evidence brought before it by the parties, decreed the suit of the respondents on 26-3-1996 giving them 47/80 share in the Properties Nos.83 and 363. Accordingly, prelimninary decree was passed in their favour.

8. It was held by trial Court that it was not proved that respondent No,3 was divorced by the deceased. Also; the trial Court reached the conclusion that alleged registered will lit favour of the appellants was inoperative and that Property No,363 was not transferred to appellant No,1, in lieu of dower by the deceased. For Issue No,6, on the admission of respondent No,3 that value of their share was more than 3 lacs, it was held that the suit was not properly valued for the purpose of court-fees and jurisdiction. The respondents were directed to pay court-fees of Rs,15,000 within 60 days from the date of judgment, failing which the suit was to be deemed as to have been dismissed. It is significant to note that though the valuation of suit for purpose of court-fees and jurisdiction was determined worth more than 3 lacs, yet, in the decree drawn by the Court, valuation for purpose of court-fees and jurisdiction was shown at Rs,25,000.

9. The appellants being dissatisfied with the judgment and decree dated 26-3-1996, preferred an appeal before learned District Judge, Multan, on 23-5-1996, which was transferred to Additional District Judge, Multan, who issued notices to the respondents and ordered for maintaining status quo.

10. It appears that the respondents filed R.F.A. No,111 of 1996 before High Court, Multan Bench, challenging finding of trial Court on Issue No,6 only. The appeal was filed before the High' Court as the valuation of the appeal exceeded the pecuniary jurisdiction of the District Court. The appellants contested the appeal, which was allowed vide judgment dated 17-11-1996, the finding of learned trial Court on Issue No,6 was set aside and the parties were directed to appear before trial Court on 22-12-1996. Since there was some confusion in above judgment, the respondents filed C.M.A.

No,1320-C/1996 for its clarification and learned High Court ordered that the words "to the extent of valuation of court-fee only" be added at line No,3, para.6 after the words "Issue No,6". The valuation of the suit for the purpose of jurisdiction remained more than rupees three lacs.

11. On 16-4-1997, the respondents moved an application before learned Additional District Judge for return of appeal to the appellants on the ground that said Court had no jurisdiction and the appeal was to be preferred before the High Court. Accordingly on 1-10-1997, learned Additional District Judge, after hearing the parties at length on the ground of pecuniary jurisdiction, ordered for return of memo. Of appeal to the appellants, who filed the same, before the High Court on 11-10-1997.

12. Learned High Court by impugned judgment dismissed the appeal on the ground of limitation and in paras. 7 and 12 observed as follows:-- "7. The appellants instead of presenting the memo of appeal in the High Court filed separate appeal challenging the judgment and decree dated 26-3-1996 and the judgment of the Appellate Court dated 1-10-1997 returning the appeal to the appellants.....

12. From the plain reading of the abovesaid provisions of law, it is manifestly clear that the returning of the plaint or appeal is not final disposal of the matter. On the contrary, it would be heard and decided by the Court competent to hear it. As the effect of an order under rule 10 is thus to ensure the proper adjudication of the plaintiff's claim. The order under rule 10 is not a decree prima facie, therefore, no appeal would lie against the return of the plaint or appeal for presentation in the proper Court. It means that the plaintiffs or appellants had to file old plaint in the proper Court... .. Learned High Court also held that the appellants had chosen wrong forum intentionally,, as such, on that score the delay could not be condoned.

13. Vide order dated 10-7-2000, leave to appeal was granted to consider the following:--

(i) In the absence of specific provision in the C.P.C. For directing the return of appeal for want of pecuniary jurisdiction in the First. Appellate Court, whether the provisions of section 107(2) read with Order VII, rule 10, C.P.C. Apply as has been held in (i) Narayan v. Tukaram AIR 1923 Nag.310; (ii)

Moomal Dharamada and another v. Lal Singh AIR 1939 Sindh 221; (iii) Mst. Hawabai and 6 others v.

Abdus Shakoor and 8 others PLD 1981 Kar. 277 which overruled the law enunciated in Mst. Hawabai and 6 others v. Abdul Shakoor and 8 others PLD 1970 Kar. 367; the case at Serial No,(iii) ante in the Letters Patent Appeal by Karachi High Court was approved by this Court in Abdul Shakoor and others v. Mst. Hawabai and others 1982 SCMR 867 and Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584?

(ii) In the event, of the applicability of provisions of Order VII, Rule 10, C.P.C. To the return of appeal, whether the party receiving the return of the plaint was obliged to refile the self-same memorandum of appeal before the proper Court of competent jurisdiction as reported in the case of Mst. Hawabai and others (supra) (PLD 1970 Karachi 367) or on the analogy of the decided cases referred to at proposition No,1 above under Order VII, Rules 10 C.P.C., it can file a fresh or amended memornadum of appeal as held in the case of Mst. Hawabai (supra) (PLD 1981 Karachi 277) and the case of Abdul Shakoor and others 1982 SCMR 867)?

(iii) Whether, after the return of memorandum of appeal by the first learned Appellate Court, institution of amended memorandum of appeal alongwith the returned memorandum of appeal suffer from irregularity in law affecting the merits of the case or was a curable irregularity under section 99 of the C.P.C.?

(iv) Whether the decree-sheet carrying the valuation of Rs,25,000 could bona fide be taken to the Court of appeal because the appeal from the decree itself and not the judgment with reference to section 96 read with Order 41, Rule 1, C.P.C. Is competent?

14. Dealing with the first and second propositions of the leave granting order, learned counsel for the appellants argued that, in absence of specific provisions in Civil Procedure Code for directing return of appeal for want of pecuniary jurisdiction section 107(2) read with Order VII, Rule 10, C.P.C., would be attracted. It is noted that Order VII, Rule 10, C.P.C. Deals with return of plaint. It provides the procedure to be followed at the time of returning the plaint. As laid down in said Rule, the concerned Judge shall endorse there on date of its presentation and return, the name of the party presenting its brief statement and reasons for returning it. Section 107(2)(ibid) lays down that the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the C.P.C. On Courts of original jurisdiction in respect of the suits instituted therein.

15. Ratio of the cases reported as (1) Moolomal Dharamdas and another v. Lal Singh AIR 1939 Sindh.

221 and (2) Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 is that the provisions of section 107(2), C.P.C. Mutatis mutandis will attract the provisions of Order VII, Rule 10, C.P.C. In the case of Sherien and 4 others, this Court has taken view, while interpreting Order VII, Rule 10 and section 107(2) that provisions of Order VII, Rule 10 are mandatory and when the Court has no jurisdiction to hear the suit, it is under compulsion to return the plaint for its presentation before the proper Court and since no provision exists in C.P.C. Analogous to Order VII, Rule 10, directly applicable to the Appellate Court, there is, however, no reason to whittle down the imperative character of the said provision while applying the same to the Appellate Court. In other words by virtue of section 107(2), the Appellate Court has the same powers, which are conferred upon the Courts of original jurisdiction.

16. It appears that learned High Court on the strength of a rule of law laid down in Mst. Hawabai and 6 others v. Abus Shakoor and 8 others PLD 1970 Karachi 367) and Sardaraz Khan and 36 others v.

Amirullah Khan and 34 others PLD 1995 Peshawar 86, held that the appellants were required to file the old appeal before the High Court and that they could neither retain it nor amend it. This view was taken in Mst. Hawabai case that old plaint was to be filed and was followed in Sardaraz Khan case. It is noted that the judgment rendered in Mst. Hawabai case PLD 1970 Karachi 367, was set aside by a learned D.B. Of High Court of Sindh, Karachi, vide judgment reported as Mst. Hawabai and 6 others v. Abdus Shakoor and 8 others PLD 1981 Karachi 277. It was held in this case that after a plaint is returned to the plaintiff, he could adopt any of the 4 courses (i) challenge the order, returning the plaint for presentation to the proper Court by filing an appeal against such order, (ii) he may present the same plaint after its return to him to a Court having jurisdiction in the matter,

(iii) he may amend the plaint by giving up a part of the relief or reduce the valuation so as to make it cognizale by the Court which returned the plaint and then represent the same to the same Court or amend the plaint and present it before a Court having jurisdiction in the matter and (iv) he may file a fresh suit in the. Court having jurisdiction in the matter. Above matter came in appeal before this Court and was reported as Abdus Shakoor and 8 others v. Mst. Hawabai and 6 others 1982 SCMR 867. The view taken by D.B. Of High Court of Sindh was approved and it was held that "The plaintiffs were, therefore, under no legal obligation to file the same plaint before the other forum. They could submit a fresh plaint and as indicated above they were under no obligation to file a suit at all".

Above being the legal position the insistence of filing old memo. Of appeal was not proper and not in accordance with the law laid down by this Court in above-referred case. Besides the appellants had filed memoradum of appeal alongwith returned memorandum of appeal in the High Court.

The observations of the High Court to the above extent are not proper.

17. The brings us to the main contention of limitation. In fact, the appeal was mainly dismissed on this ground. Learned counsel for the appellants vehemently arugned that the question of delay was not properly appreciated by the High Court and the delay, if any, ought to have been condoned. The appellants had filed two applications before High Court for condonation of delay, one under section 5 and others under section 14 of the Limitation Act. Main plea of the appellants is that the decree showed the value of suit for court-fee and jurisdiction at Rs,25,000, as such, appeal was to be preferred before District Judge and not the High Court. Learned counsel submitted that appellants could not be solely held responsible for said delay. Decree is always drawn in terms of the judgment. A mistake in decree would not confer jurisdiction upon a wrong forum. The judgment and decree of the trial Court are dated 26-3-1996 and appeal before District Court was filed on 23- 5-1996. Before High Court, it could be filed within 90 days after detecting the time of obtaining certified copies etc. i,e, on or before 5th August, 1996. Instead it was filed on 11-10-1997. Learned counsel argued that decision of the appeal before District Court was held up for about 16/17 months and this was another cause of delay. According to him if it would have been decided immediately, delay would not have occasioned.

18. Section 5 of Limitation Act is applicable to appeals and section 14 to suits. In section 5, the expression "sufficient cause" has been used, while in section 14, "due diligence and good faith".

Learned counsel arguned that sufficient cause was shown for condonation of delay, as there was neither any element of negligence nor mala fide on the part of the appellants in presentation of appeal before the High Court. In support of his contention he cited (1) Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584. (2) Raja Karamatullah and 3 others v. Sardar Muhammad Aslam Sukhera 1999 SCMR 1892. In Sherin and 4 others' case, the following was observed:-- "... ... ...The High Court has declined to condone the delay entirely on the touchstone of section 14. It is, however, to be remembered that expression 'due diligence' and 'good faith' appearing in section 14 do not figure in section 5. The condition prescribed in the latter section for its applicability is 'sufficient cause' but what is sufficeint cause is not capable of connotation, with exactitude and would differ from case to case. We may observe that filing of appeal in a wrong Court on account of mistaken advice tendered by the counsel canvassed on behalf of the appellants for condonation of delay by itself would not attract section 5 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 the appeal in the wrong forum may constitute a 'sufficient case' within the meaning of section 5 for condonation of the delay... ... .."

In case of Raja Karamatullah and 3 others, it was held that sections 5 and 14 of Limitation Act, would come into play only if delay appeared to be condonable. It was held that time consumed in pursuing appeal in wrong forum could not be condoned, under section 5 of the Limitation Act.

19. As against above, Raja Muhammad Ibrahim Satti, learned counsel for the respondents argued that sufficient cause was not shown by the appellants, as such, delay could not be condoned. In support of his contention he cited (1) Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102, (2) Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 (also relied upon by the appellants), (3)

Syed Haji Abdul Wahid v. Syed Sirajuddin 1998 SCMR 2296, (4) Raja Karamatullah and 3 others v.

Sardar Muhammad Aslam Sukhera 1999 SCMR 1892.

20. The principles laid down in Abdul Ghani's case have been followed in other above-referred cases. It has been held that sufficient cause means "circumstances beyond control of party concerned" and that nothing shall be deemed to be done in good faith, which is not done with due care and attention. In case of Haji Abdul Wahid, it was held that what was sufficient cause it would differ from case to case and further it was held that any action taken on advice by the counsel against a clear provision of law would not entitle the party to seek condonation of delay on the ground that he acted bona fide on such advice.

21. Keeping in view of above principles, it is to be seen whether in this case "sufficient cause" is shown or not. Although, both the parties are legal heirs of the deceased, but the appellants, in order to deprive the respondents, took various steps as discussed in the judgment of the trial Court. The appellants had contested R.F.A. No,111 of 1996, and knew its result, but they never disclosed before High Court that they had filed appeal against judgment and decree of the trial Court before the District Court. It is significant to note that before the Additional District Judge, the appellants opposed the application for return of the appeal and even, contended that, High Court had not given any finding that appeal pending before Additional District Judge was to be filed before it and that the District Court had no jurisdiction to entertain it. After judgment in R.F.A. No,111 of 1996, it had become clear that the appeal arising from the judgment of Trial Court was to be preferred before the High Court and not the District Court. In spite of above, it was vehemently argued before learned Additional District Judge that he was competent to hear the appeal. In fact the appellants were adamant to claim that they had properly filed the appeal before the District Court. This fact alone is sufficient to hold that "sufficient cause" for delay was not shown. Sole object of the appellants was to prolong the proceedings, as much as possible, to deprive the respondents with their due shares. Deliberate assertion of a plea, which to their knowledge was illegal/improper, cannot be treated as "sufficient cause" for condonation of delay.

22. Accordingly, we hold that sufficient cause for delay was not shown and the appeal of the appellants was rightly dismissed by the High Court.

23. In consequence, the appeal is dismissed with costs.