2011 C L C 1916
2011 C L C 1916
[Peshawar]
Before Syed Sajjad Hassan Shah, J
Haji MUHAMMAD RIAZ-UL-HASSAN and 9 others----Appellants
Versus
WAPDA through Chairman, WAPDA, LAHORE and 4 others----Respondents
R.F.A. No.11 of 2011 with C.M. No.3 of 2011, decided on 3rd May, 2011.
Civil Procedure Code (V of 1908)---
----O. XVII, Rr.2 & 3 & O.IX---Land Acquisition Act (I of 1894), Ss.18 & 54---Striking off right for production of evidence---Appeal against---Trial Court to which reference petition under S.18 of Land Acquisition Act, 1894 was forwarded, struck off right of appellants for production of evidence---Proceedings in the case were fixed for recording of evidence of Patwari Halqa who was summoned at the instance of appellants, who had deposited his diet money---Patwari Halqa who appeared in the court, was examined in a piecemeal manner for a sufficient amount of time, but on one date when he did not appear, notice under O.XVII, R.3, C.P.C. was given to the appellants, though the case was fixed for recording the statement of Patwari Halqa---Validity---Trial Court was under legal duty to procure the attendance of Patwari as appellants had deposited his diet money as Patwari was official witness and required to be summoned by the court---Case was adjourned for recording of evidence and on the date so fixed for the evidence of Patwari and the oral evidence of the appellants, neither the appellants attended the court nor evidence was produced---Court, in such eventuality, could proceed under Rule 2 of O.XVII, C.P.C., instead of resorting to provision of R.3 of O.XVII, C.P.C.---Trial Court had incorrectly applied provisions of R.3 of O.XVII, C.P.C. because statement of Patwari was yet to be completed---No material was available on record to dismiss the suit as said provisions were not mandatory, but were permissible and discretionary in nature---Said provisions being penal, must be strictly construed and to be sparingly applied to the cases; and that too where all the requirements prescribed under the law had been fulfilled---Trial Court, in absence of the appellants, at the most, could dismiss the suit under O.IX, C.P.C. or pass any other order as it deemed fit---Since the precious rights were involved in the case, which required adjudication on merits, appellants could not be deprived of their rights on the mistaken legal advice and for the act of the court---Appeal was accepted on payment of cost and impugned order was set aside and the matter was remanded to the Trial Court for decision on merits in accordance with law within a period of two months.
Muhammad Haleem and others v. Muhammad Naim and others PLD 1969 SC 270; Haji Muhammad Waris v. Muhammad Hayat 2006 CLC 1680; 1999 SCMR 105; Sarwar Khan v. Muhammad Yousaf 1988 MLD 2035 and Mst. Bas Khana and others v. Muhammad Raees Khan and others PLD 2005 Pesh. 214 rel.
Qurban Ali Khan for Appellants.
Amir Muhammad Baloch for Respondents.
ORDER
SYED SAJJAD HASSAN SHAH, J.--- Through the instant appeal under section 54 of the Land Acquisition Act, the appellants have assailed the validity of the order dated 27-1-2010 passed by learned Senior Civil Judge, D.I. Khan, whereby the right of the appellants for production of evidence was struck off under Order XVII, Rule 3, C.P.C. in objection petition under section 18 of the Act.
2. The brief facts giving rise to the instant appeal are that the appellant filed reference petition under section 18 of the Land Acquisition Act which was forwarded to the Court of learned Senior Civil Judge, D.I. Khan where the appellants' right to produce evidence was struck of. Feeling aggrieved the appellants filed appeal before the District Court. When the appellants apprised that the appeal was not competent before that forum, the appellants filed an application for return of the appeal which was returned on 5-1-2011 and hence, the instant appeal.
3. The learned counsel for the appellants contended that the learned trial Court passed the impugned order in violation of provisions contained in Rule 3 of Order XVII, C.P.C. In order to elaborate his arguments, the learned counsel contended that it was incumbent upon the learned trial Court to adjourn the case and not to dismiss the same and that too without there being any material on the record for arriving at a just and lawful conclusion. He further contended that the provisions of Rule 3 ibid are not mandatory but discretionary in nature and the Court in all circumstances is not obliged to follow the same. The learned counsel further contended that the appeal was filed within time but on account of misconception of law it was filed before the District Judge which was returned.
4. The learned counsel for the respondents contended that sufficient opportunities were provided to the appellants but they failed to produce their evidence, thus, there was no other option left for the trial Court but to strike of their right to produce evidence. The appellants were given warning notice under Order XVII, Rule 3, C.P.C. on preceding date of hearing.
5. I have considered the submissions of learned counsel for the parties and carefully perused the available record.
6. The proceedings in the suit were fixed for recording of evidence of Patwari Halqa who was summoned at the instance of the appellants, as they deposited his expenses in the Court. Perusal of the record shows that the Patwari Halqa was being examined in piecemeal manner for a sufficient long time, and when he did not appear and consequently, on 19-1-2010 notice under Order XVII, Rule 3, C.P.C. was given to the appellants although the case was fixed for recording the statement of Patwari Halqa. The learned trial Court was under legal duty to procure the attendance of Patwari as appellants had deposited his diet money as he was official witness and required to be summoned by the Court. The case was adjourned for recording of evidence to 27-1-2010. On the date so fixed for the evidence of Patwari Halqa and the oral evidence of the appellants, neither the appellants attended the Court nor evidence was produced. In such eventuality, the Court can proceed under Rule 2 of Order XVII instead of resorting to provision of Rule 3. The provisions of Rule 2 of Order XVII are reproduced for ready reference:---
"2. Procedure if parties fail to appear on day fixed.--- Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit."
In view of the above facts, the provision of the Rule ibid was applicable in the instant case and not Rule 3 but the learned trial Court invoked the provision of Rule 3 of Order XVII, C.P.C. which reads as under:---
"3. Court may proceed notwithstanding either party fails to produce evidence, etc.--- Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith."
The learned trial Court incorrectly applied the provision of Rule 3 of Order XVII, C.P.C. because the statement of Patwari was yet to be completed. Moreso, there was no material available on record to dismiss the suit, notwithstanding the provisions are not mandatory, permissive and discretionary in nature. Moreso, being penal, must be strictly construed and to be sparingly applied to the cases and that too where all the requirements prescribed under the law have been fulfilled. At the most, the learned trial Court, in absence of the appellants, could dismiss the suit under Order IX, C.P.C. or pass any other order as it deemed fit. However, it has not been viewed with appreciation by the superior Courts of the country that where in a case the entire evidence has not been brought on the record the dismissal of the suit would not be the proper exercise of jurisdiction. Nonetheless, it amounts to augmenting the agonies of litigant public instead of providing relief within shortest possible time. In this regard, it is not out of place to mention that the decisions on merits have become the cherished goal of law of the land and technicalities in the way of dispensation of justice have consistently been condemned to promote the cause of justice. In the case of Muhammad Haleem and others v. Muhammad Naim and others (PLD 1969 Supreme Court 270) it was held that:---
"It would, therefore, appear that there is a distinction between these two Rules and it lies in this that rule 2 would be attracted to a case where the adjournment has been granted generally for one of the purposes mentioned in that Rule but where the entire evidence has been recorded and the case is posted only for the hearing of arguments, the more appropriate Rule to follow would be rule 3 and not rule 2.
The consensus of judicial opinion appears to be in favour of the view that if it is possible for a Court to base a decision on merits upon the materials already brought on the record, it should proceed under rule 3 of Order XVII and not under rule 2. This appears to us also to be sound on principle. Every party, who has instituted a cause or matter in a Court has a right to have his case decided on merits. A dismissal for non-prosecution should, therefore, be an exception and not a rule. If it is at all possible for a Court to decide the matter as indicated in rule 3, then it should adopt that course and not dismiss the proceeding for non-prosecution and leave the parties to start a second round of litigation."
In another case titled Haji Muhammad Waris v. Muhammad Hayat (2006 CLC 1680) the distinction has been drawn between Rule 2 of Order XVII and rule 3 of the said Order. The learned Division Bench of Lahore High Court set aside the findings recorded under Order XVII Rule 3, C.P.C. and observed as follows:---
"In the light of the above mentioned judgments of this Court cited above there is a considerable force in the contention of the learned counsel for the appellant that on the fateful date i.e. 26-2-2004 the learned trial Court instead of closing the evidence of the appellant by proceedings in terms of Order XVII Rule 3, C.P.C. should have proceeded to dismiss the suit of the appellant as required by Order XVII rule 2 read with Order IX rule 8, C.P.C. and the learned counsel for the respondent has not been able to cite any law/judgment holding otherwise. Even otherwise law favours decision on merits and discourages non-suiting the party on mere technicalities as held by honourable Supreme Court of Pakistan in 1999 SCMR 105 ……. Therefore, we are satisfied that instead of closing the evidence of the appellant and dismissing suit in terms of Order XVII rule 3 C.P.C, in the absence of appellant as well as learned counsel on 25-2-2004, the learned trial Court should have proceeded in terms of Order XVII rule 2, read with Order IX rule 8, C.P.C. dismissing the same for non-prosecution."
In the case of Sarwar Khan v. Muhammad Yousaf (1988 MLD 2035 Lahore) it was held that:---
"The question which requires determination is whether the learned trial Court had acted properly by finally disposing of the suit under Order XVII Rule 3, C.P.C. In the first place it may be noticed that material witness in the case was the Revenue Officer who had attested the mutation of sale challenged by the appellant. The respondents had summoned him through the Court, but he had failed to appear in spite of service of summons on 28-9-1974 with the result that notice under Order XVI rule 12, C.P.C. was issued to him by the Court for 21-1-1975. As it appears from the order dated 21-1-1975, notice was to be issued to the witness without requiring the respondents to deposit the process fee. In view of this order it is difficult to appreciate how the responsibility of procuring the attendance of the witness was placed on the respondents and they were penalized on account of non-appearance of the witness in Court on 20-2-1976 when the appellant's suit was decreed."
The diet money of Patwari Halqa had been deposited, summons was issued to the witness who was not present on 19-1-2010. The appellants were not at fault if the attendance of the Patwari could not be procured, therefore, the notice issued under Order XVII, Rule 3, C.P.C. on the said date is also not in compliance of provisions of Order XVII, Rule 3, C.P.C.
7. The appellants moved an application seeking the condonation of delay in filing the appeal, in this Court on the ground that against the order passed by the learned Senior Civil Judge on 27-1-2010, inadvertently the appeal was filed in the Court of learned District Judge, D.I. Khan on 25-2-2010 which was within time but the same was filed before the wrong forum. The appellants, when apprised about the pendency of appeal in a forum having no jurisdiction to entertain the same, moved an application for return of memo of appeal, same was accepted on 5-1-2011 and the appeal was filed on 13-1-2011 in this Court. In support of his arguments, the learned counsel for the appellants referred section 14 of the Limitation Act which read as under:---
"Exclusion of time of proceeding bona fide in Court without jurisdiction.--- (1) In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceedings, whether in a Court of the first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.
(2) ……………………………………………………………………………"
8. The appeal was filed within time in the Court of District Judge which was entrusted to learned Additional District Judge-VII, D.I. Khan. However, the learned Additional District Judge while admitting the appeal on 16-3-2010, has not gone through the memo of appeal and the impugned judgment in order to ascertain the forum of appeal. Besides, the office has also reported, after having scrutinized the record of appeal, that the appeal filed against the judgment/order of Senior Civil Judge, D.I. Khan and expressly mentioned that copy of application under section 18 of the Land Acquisition Act and other record is appended with the appeal. Had the learned Additional District Judge perused the report of office, he would have not entertained the same and might have returned to the appellants for filing before the proper forum, but the appeal remained pending till 5-1-2011 when it was returned to the appellants on their application. Thereafter, the appellants have filed the same in this Court without any delay.
9. Notwithstanding the appellants have chosen the wrong forum, the learned District Judge has also not objected that the appeal is not entertainable at the time of its filing, therefore, it is also an act of the Court for which the party is not to be penalized. The perusal of the Reference Petition shows that it was filed by appellants (who are ten in number) against the respondents for enhancement of the compensation of the property compulsorily acquired by the respondents at nominal rate which has been assessed for per kanal for payment to the owners of the suit property. Since the precious rights are involved in the subject-matter of litigation which requires the adjudication on merit and they cannot be deprived of their rights on the mistaken advice of the legal practitioner and for the act of the Court. In similar circumstances, the Division Bench of this Court, in the case of Mst. Bas Khana and others v. Muhammad Raees Khan and others (PLD 2005 Peshawar 214)accepted the F.A.O. and after condoning the delay, remitted the case to the trial Court for decision in accordance with law. The relevant paragraph 10 of the above judgment is reproduced below:---
"Assuming for a while that the appellants did not act with due diligence by prosecuting their remedy in a wrong forum, nonetheless, they, before it was too late, could be put on the right track by the learned District Judge, the day the memorandum of appeal was presented before him. This is what preliminary hearing stands for. In any case when it was entertained and even admitted by the learned Judge without adverting to its competency on account of his pecuniary jurisdiction, all the time so consumed from its entertainment to its return in his Court, cannot be debited in the account of the appellants, and thus they cannot be allowed to suffer for the act of the Court. Had it been returned on the first date of hearing the appellants could have presented it in this Court well within time. Since the time was consumed due to the act of the Court, it will certainly constitute a sufficient cause for condonation of delay as according to the principle enshrined in the maxim actus curiae neminem gravabit, "an act of the Court shall prejudice none."
10. In the light of the background of the instant case and the dictum referred to above, whereby Registrar of this Court was directed to circulate the copy of judgment to all the District/Additional District Judges and the Clerks of the Court with the remarks that they, should before entertaining any appeal ensure that it is within the pecuniary jurisdiction, C.M. No.3 of 2011 is accepted and the delay caused in filing appeal is hereby condoned. Resultantly, the appeal is accepted on payment of cost of Rs.3000, the impugned order of the learned trial Court is set aside and the matter is remanded to it for decision on merits in accordance with law within a period of two months.
H.B.T./185/P Case remanded
[Peshawar]
Before Syed Sajjad Hassan Shah, J
Haji MUHAMMAD RIAZ-UL-HASSAN and 9 others----Appellants
Versus
WAPDA through Chairman, WAPDA, LAHORE and 4 others----Respondents
R.F.A. No.11 of 2011 with C.M. No.3 of 2011, decided on 3rd May, 2011.
Civil Procedure Code (V of 1908)---
----O. XVII, Rr.2 & 3 & O.IX---Land Acquisition Act (I of 1894), Ss.18 & 54---Striking off right for production of evidence---Appeal against---Trial Court to which reference petition under S.18 of Land Acquisition Act, 1894 was forwarded, struck off right of appellants for production of evidence---Proceedings in the case were fixed for recording of evidence of Patwari Halqa who was summoned at the instance of appellants, who had deposited his diet money---Patwari Halqa who appeared in the court, was examined in a piecemeal manner for a sufficient amount of time, but on one date when he did not appear, notice under O.XVII, R.3, C.P.C. was given to the appellants, though the case was fixed for recording the statement of Patwari Halqa---Validity---Trial Court was under legal duty to procure the attendance of Patwari as appellants had deposited his diet money as Patwari was official witness and required to be summoned by the court---Case was adjourned for recording of evidence and on the date so fixed for the evidence of Patwari and the oral evidence of the appellants, neither the appellants attended the court nor evidence was produced---Court, in such eventuality, could proceed under Rule 2 of O.XVII, C.P.C., instead of resorting to provision of R.3 of O.XVII, C.P.C.---Trial Court had incorrectly applied provisions of R.3 of O.XVII, C.P.C. because statement of Patwari was yet to be completed---No material was available on record to dismiss the suit as said provisions were not mandatory, but were permissible and discretionary in nature---Said provisions being penal, must be strictly construed and to be sparingly applied to the cases; and that too where all the requirements prescribed under the law had been fulfilled---Trial Court, in absence of the appellants, at the most, could dismiss the suit under O.IX, C.P.C. or pass any other order as it deemed fit---Since the precious rights were involved in the case, which required adjudication on merits, appellants could not be deprived of their rights on the mistaken legal advice and for the act of the court---Appeal was accepted on payment of cost and impugned order was set aside and the matter was remanded to the Trial Court for decision on merits in accordance with law within a period of two months.
Muhammad Haleem and others v. Muhammad Naim and others PLD 1969 SC 270; Haji Muhammad Waris v. Muhammad Hayat 2006 CLC 1680; 1999 SCMR 105; Sarwar Khan v. Muhammad Yousaf 1988 MLD 2035 and Mst. Bas Khana and others v. Muhammad Raees Khan and others PLD 2005 Pesh. 214 rel.
Qurban Ali Khan for Appellants.
Amir Muhammad Baloch for Respondents.
ORDER
SYED SAJJAD HASSAN SHAH, J.--- Through the instant appeal under section 54 of the Land Acquisition Act, the appellants have assailed the validity of the order dated 27-1-2010 passed by learned Senior Civil Judge, D.I. Khan, whereby the right of the appellants for production of evidence was struck off under Order XVII, Rule 3, C.P.C. in objection petition under section 18 of the Act.
2. The brief facts giving rise to the instant appeal are that the appellant filed reference petition under section 18 of the Land Acquisition Act which was forwarded to the Court of learned Senior Civil Judge, D.I. Khan where the appellants' right to produce evidence was struck of. Feeling aggrieved the appellants filed appeal before the District Court. When the appellants apprised that the appeal was not competent before that forum, the appellants filed an application for return of the appeal which was returned on 5-1-2011 and hence, the instant appeal.
3. The learned counsel for the appellants contended that the learned trial Court passed the impugned order in violation of provisions contained in Rule 3 of Order XVII, C.P.C. In order to elaborate his arguments, the learned counsel contended that it was incumbent upon the learned trial Court to adjourn the case and not to dismiss the same and that too without there being any material on the record for arriving at a just and lawful conclusion. He further contended that the provisions of Rule 3 ibid are not mandatory but discretionary in nature and the Court in all circumstances is not obliged to follow the same. The learned counsel further contended that the appeal was filed within time but on account of misconception of law it was filed before the District Judge which was returned.
4. The learned counsel for the respondents contended that sufficient opportunities were provided to the appellants but they failed to produce their evidence, thus, there was no other option left for the trial Court but to strike of their right to produce evidence. The appellants were given warning notice under Order XVII, Rule 3, C.P.C. on preceding date of hearing.
5. I have considered the submissions of learned counsel for the parties and carefully perused the available record.
6. The proceedings in the suit were fixed for recording of evidence of Patwari Halqa who was summoned at the instance of the appellants, as they deposited his expenses in the Court. Perusal of the record shows that the Patwari Halqa was being examined in piecemeal manner for a sufficient long time, and when he did not appear and consequently, on 19-1-2010 notice under Order XVII, Rule 3, C.P.C. was given to the appellants although the case was fixed for recording the statement of Patwari Halqa. The learned trial Court was under legal duty to procure the attendance of Patwari as appellants had deposited his diet money as he was official witness and required to be summoned by the Court. The case was adjourned for recording of evidence to 27-1-2010. On the date so fixed for the evidence of Patwari Halqa and the oral evidence of the appellants, neither the appellants attended the Court nor evidence was produced. In such eventuality, the Court can proceed under Rule 2 of Order XVII instead of resorting to provision of Rule 3. The provisions of Rule 2 of Order XVII are reproduced for ready reference:---
"2. Procedure if parties fail to appear on day fixed.--- Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit."
In view of the above facts, the provision of the Rule ibid was applicable in the instant case and not Rule 3 but the learned trial Court invoked the provision of Rule 3 of Order XVII, C.P.C. which reads as under:---
"3. Court may proceed notwithstanding either party fails to produce evidence, etc.--- Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith."
The learned trial Court incorrectly applied the provision of Rule 3 of Order XVII, C.P.C. because the statement of Patwari was yet to be completed. Moreso, there was no material available on record to dismiss the suit, notwithstanding the provisions are not mandatory, permissive and discretionary in nature. Moreso, being penal, must be strictly construed and to be sparingly applied to the cases and that too where all the requirements prescribed under the law have been fulfilled. At the most, the learned trial Court, in absence of the appellants, could dismiss the suit under Order IX, C.P.C. or pass any other order as it deemed fit. However, it has not been viewed with appreciation by the superior Courts of the country that where in a case the entire evidence has not been brought on the record the dismissal of the suit would not be the proper exercise of jurisdiction. Nonetheless, it amounts to augmenting the agonies of litigant public instead of providing relief within shortest possible time. In this regard, it is not out of place to mention that the decisions on merits have become the cherished goal of law of the land and technicalities in the way of dispensation of justice have consistently been condemned to promote the cause of justice. In the case of Muhammad Haleem and others v. Muhammad Naim and others (PLD 1969 Supreme Court 270) it was held that:---
"It would, therefore, appear that there is a distinction between these two Rules and it lies in this that rule 2 would be attracted to a case where the adjournment has been granted generally for one of the purposes mentioned in that Rule but where the entire evidence has been recorded and the case is posted only for the hearing of arguments, the more appropriate Rule to follow would be rule 3 and not rule 2.
The consensus of judicial opinion appears to be in favour of the view that if it is possible for a Court to base a decision on merits upon the materials already brought on the record, it should proceed under rule 3 of Order XVII and not under rule 2. This appears to us also to be sound on principle. Every party, who has instituted a cause or matter in a Court has a right to have his case decided on merits. A dismissal for non-prosecution should, therefore, be an exception and not a rule. If it is at all possible for a Court to decide the matter as indicated in rule 3, then it should adopt that course and not dismiss the proceeding for non-prosecution and leave the parties to start a second round of litigation."
In another case titled Haji Muhammad Waris v. Muhammad Hayat (2006 CLC 1680) the distinction has been drawn between Rule 2 of Order XVII and rule 3 of the said Order. The learned Division Bench of Lahore High Court set aside the findings recorded under Order XVII Rule 3, C.P.C. and observed as follows:---
"In the light of the above mentioned judgments of this Court cited above there is a considerable force in the contention of the learned counsel for the appellant that on the fateful date i.e. 26-2-2004 the learned trial Court instead of closing the evidence of the appellant by proceedings in terms of Order XVII Rule 3, C.P.C. should have proceeded to dismiss the suit of the appellant as required by Order XVII rule 2 read with Order IX rule 8, C.P.C. and the learned counsel for the respondent has not been able to cite any law/judgment holding otherwise. Even otherwise law favours decision on merits and discourages non-suiting the party on mere technicalities as held by honourable Supreme Court of Pakistan in 1999 SCMR 105 ……. Therefore, we are satisfied that instead of closing the evidence of the appellant and dismissing suit in terms of Order XVII rule 3 C.P.C, in the absence of appellant as well as learned counsel on 25-2-2004, the learned trial Court should have proceeded in terms of Order XVII rule 2, read with Order IX rule 8, C.P.C. dismissing the same for non-prosecution."
In the case of Sarwar Khan v. Muhammad Yousaf (1988 MLD 2035 Lahore) it was held that:---
"The question which requires determination is whether the learned trial Court had acted properly by finally disposing of the suit under Order XVII Rule 3, C.P.C. In the first place it may be noticed that material witness in the case was the Revenue Officer who had attested the mutation of sale challenged by the appellant. The respondents had summoned him through the Court, but he had failed to appear in spite of service of summons on 28-9-1974 with the result that notice under Order XVI rule 12, C.P.C. was issued to him by the Court for 21-1-1975. As it appears from the order dated 21-1-1975, notice was to be issued to the witness without requiring the respondents to deposit the process fee. In view of this order it is difficult to appreciate how the responsibility of procuring the attendance of the witness was placed on the respondents and they were penalized on account of non-appearance of the witness in Court on 20-2-1976 when the appellant's suit was decreed."
The diet money of Patwari Halqa had been deposited, summons was issued to the witness who was not present on 19-1-2010. The appellants were not at fault if the attendance of the Patwari could not be procured, therefore, the notice issued under Order XVII, Rule 3, C.P.C. on the said date is also not in compliance of provisions of Order XVII, Rule 3, C.P.C.
7. The appellants moved an application seeking the condonation of delay in filing the appeal, in this Court on the ground that against the order passed by the learned Senior Civil Judge on 27-1-2010, inadvertently the appeal was filed in the Court of learned District Judge, D.I. Khan on 25-2-2010 which was within time but the same was filed before the wrong forum. The appellants, when apprised about the pendency of appeal in a forum having no jurisdiction to entertain the same, moved an application for return of memo of appeal, same was accepted on 5-1-2011 and the appeal was filed on 13-1-2011 in this Court. In support of his arguments, the learned counsel for the appellants referred section 14 of the Limitation Act which read as under:---
"Exclusion of time of proceeding bona fide in Court without jurisdiction.--- (1) In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceedings, whether in a Court of the first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.
(2) ……………………………………………………………………………"
8. The appeal was filed within time in the Court of District Judge which was entrusted to learned Additional District Judge-VII, D.I. Khan. However, the learned Additional District Judge while admitting the appeal on 16-3-2010, has not gone through the memo of appeal and the impugned judgment in order to ascertain the forum of appeal. Besides, the office has also reported, after having scrutinized the record of appeal, that the appeal filed against the judgment/order of Senior Civil Judge, D.I. Khan and expressly mentioned that copy of application under section 18 of the Land Acquisition Act and other record is appended with the appeal. Had the learned Additional District Judge perused the report of office, he would have not entertained the same and might have returned to the appellants for filing before the proper forum, but the appeal remained pending till 5-1-2011 when it was returned to the appellants on their application. Thereafter, the appellants have filed the same in this Court without any delay.
9. Notwithstanding the appellants have chosen the wrong forum, the learned District Judge has also not objected that the appeal is not entertainable at the time of its filing, therefore, it is also an act of the Court for which the party is not to be penalized. The perusal of the Reference Petition shows that it was filed by appellants (who are ten in number) against the respondents for enhancement of the compensation of the property compulsorily acquired by the respondents at nominal rate which has been assessed for per kanal for payment to the owners of the suit property. Since the precious rights are involved in the subject-matter of litigation which requires the adjudication on merit and they cannot be deprived of their rights on the mistaken advice of the legal practitioner and for the act of the Court. In similar circumstances, the Division Bench of this Court, in the case of Mst. Bas Khana and others v. Muhammad Raees Khan and others (PLD 2005 Peshawar 214)accepted the F.A.O. and after condoning the delay, remitted the case to the trial Court for decision in accordance with law. The relevant paragraph 10 of the above judgment is reproduced below:---
"Assuming for a while that the appellants did not act with due diligence by prosecuting their remedy in a wrong forum, nonetheless, they, before it was too late, could be put on the right track by the learned District Judge, the day the memorandum of appeal was presented before him. This is what preliminary hearing stands for. In any case when it was entertained and even admitted by the learned Judge without adverting to its competency on account of his pecuniary jurisdiction, all the time so consumed from its entertainment to its return in his Court, cannot be debited in the account of the appellants, and thus they cannot be allowed to suffer for the act of the Court. Had it been returned on the first date of hearing the appellants could have presented it in this Court well within time. Since the time was consumed due to the act of the Court, it will certainly constitute a sufficient cause for condonation of delay as according to the principle enshrined in the maxim actus curiae neminem gravabit, "an act of the Court shall prejudice none."
10. In the light of the background of the instant case and the dictum referred to above, whereby Registrar of this Court was directed to circulate the copy of judgment to all the District/Additional District Judges and the Clerks of the Court with the remarks that they, should before entertaining any appeal ensure that it is within the pecuniary jurisdiction, C.M. No.3 of 2011 is accepted and the delay caused in filing appeal is hereby condoned. Resultantly, the appeal is accepted on payment of cost of Rs.3000, the impugned order of the learned trial Court is set aside and the matter is remanded to it for decision on merits in accordance with law within a period of two months.
H.B.T./185/P Case remanded
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