' SHEIKH AZMAT SAEED, J.---This civil revision is directed against an appellate judgment and 'decree dated 28-4-2004 whereby the appeal filed by respondents Nos.1 to 23 against the order of rejection of plaint was accepted.
2. Brief facts for the adjudication of this revision petition are that respondents Nos.1 to 23 filed a suit against the present petitioners and respondents Nos.3 to 11 seeking a declaration that the said respondents were owner's of the suit-land and the entry in the Revenue Record to the effect that the present petitioners are owners of 1/3rd therefore, is ineffective against the rights of respondents Nos.1 to 23. On filing of the suit summons were issued to the defendants therein. It appears that respondents Nos.3 to 11 were served who filed their written statement. Thereafter the, trial Court, after hearing respondents Nos.1 to 23 and respondents Nos.3 to 11, rejected the plaint vide order dated 24-5-2003 as barred by res judicata. Aggrieved respondents Nos.1 to 23 filed an appeal before the first appellate Court which admittedly was barred by limitation by 24 days. Along with the appeal application under section 5 of the Limitation Act for condonation of delay was also filed by respondents Nos.1 to 23. The first appellate Court accepted the application, condoned the delay and also accepted the appeal and remanded the case to the trial Court for its fresh decision after recording of evidence. The said judgment of the first appellate Court dated 28-4-2004 has been sought to be revised through the instant petition.
3. It is contended by the learned counsel for the petitioners that there was no occasion for the condonation of delay and the appeal admittedly being time-barred should have been dismissed as such. It is further contended that neither satisfactory explanation, has been offered nor the delay for each and every day has been explained.
4. The learned counsel for respondents Nos. 1 to 23 has controverted the arguments raised on behalf of the petitioners and has submitted that order of the trial Court was void, hence question of limitation did not arise. It is further contended that as no counter-affidavit had been filed to the application under section 5 of the Limitation Act, hence the said application has been rightly accepted. Adds that discretion has been exercised by the first appellate Court which cannot be interfered with by this Court in its revisional jurisdiction. The learned counsel has placed reliance on the cases reported as Abdul Karim v. Muhammad Ibrahim (1976 SCM R 79) and Ali Muhammad through Legal Heirs and others v. Chief Settlement Commissioner and others (2001 SCM R 1822)
5. The learned counsel for the other respondent has supported the contention raised by the counsel for the petitioners.
6. In the instant case it is a matter of record that the parties to the lis at hand or their predecessors in interest had been involved in a previous round of litigation pertaining to the said land. Such litigation had eventually culminated in a judgment passed by the august Supreme Court of Pakistan. Relying on the aforesaid judgment the trial Court has held the suit barred by res judicata and had rejected the plaint. The appellate Court . Has set aside the order primarily on two grounds; firstly, that material other than the contents of the plaint has been taken into account by the trial Court and secondly, that the objection of res judicata could only be decided after the recording of evidence.
7. There can be no escape from the settled legal position that a trial Court is conferred with the jurisdiction under Order VII, rule 11 of the Code of Civil Procedure to 'reject any plaint which is barred by law (including section 11 of the C.P.C.). There can also be no escape from the fact that there was a previous round of litigation inter se the same parties or their predecessors in interest involving the same land which had culminated in a judgment by the august Supreme Court of Pakistan. In the instant case the trial Court relying upon the said judgment rejected the plaint which order cannot by any stretch of imagination be deemed to be a void order so as to escape the rigours of limitation.
8. In the absence of a counter affidavit at best the facts alleged in the affidavit could perhaps be accepted as correct. Whether such facts are sufficient for condonation of delay in filing of an appeal require examination thereof. In the instant case the explanation for not filing the appeal in time and seeking condonation of delay as stated in the application was as follows:-- "No,3' the delay occurred in the circumstances that the case was shown to our learned Advocate at Lahore and the plaintiffs got involved in cultivation of the rice crop for which every day was crucial.
The poor and helpless appellants remained too busy in planting the rice crop to go to Lahore and to attend the Advocate at Lahore. Moreover, they did not have sufficient funds to reach Lahore, and to conduct Advocate. As soon as they reached Lahore, they have got the appeal drafted and are filing it without any loss of time."
No,4 the mother of the appellant No,1 being aged about 90 years has been precariously ill and all the relatives remained busy in attending to her in her advanced age and serious ailment and could not afford to leave her for the sake of appeal. Her treatment consumed all the funds and thus the appeal has become time-barred by a few days."
9. A perusal of the aforesaid explanation makes it clear and obvious that the same is not sufficient for condonation of delay. The explanation offered is deficient in material particulars qua dates.
Each and every day of the delay has not been explained. Furthermore, necessity to plant crops and paucity of funds are not sufficient grounds for condonation of delay. Similarly the illness of one of the appellants is also not a sufficient ground as there were no less than 23 appellants.
10. It is obvious that sufficient grounds were not available for condonation of delay which should not have been condoned especially as failure to file the appeal within the prescribed period creates a vested right in favour of the opposite party which cannot be rightly done away with or extinguished.
11. In this view of the matter, the impugned appellate judgment and decree dated 28-4-2004 is not sustainable in law and is hereby set aside with the result that the order of the trial Court rejecting the plaint is upheld. This revision petition is accepted in the above terms.