' MUHAMMAD MUZAMMAL KHAN, J.---This revision petition assails the judgments/order dated 6-2- 2002 passed by the learned Additional District Judge, Lahore, whereby besides dealing the matter of suspension of judgment and decree impugned in the appeal before him, objection of the petitioner that the appeal of the respondents is barred by limitation, was overruled.
2. A short factual background of the case is that the suit filed by late Muhammad Umer Khan predecessor-in-interest of the petitioners, for damages on account of his illegal dismissal from the post of Chief Manager National Bank of Pakistan for the area of Bahawalpur to Gilgit, after contest was decreed on 26-9-1998, and an amount of Rs,11,15,941 was awarded as damages.
' Respondent feeling aggrieved of the judgment and decree dated 29-6-1998 passed by the learned Civil Judge, filed an appeal (R.F.A. No,337 of 1998) before this Court but was disposed of on 21-9-1999 by an Honourable Division Bench, with the observations that the appeal before this Court is not competent and was ordered to be returned for its presentation before the Court, having pecuniary jurisdiction.
3. The respondent instead of receiving back the memorandum of appeal filed C.M. No,6-C of 1999 and thereafter C.M. No,5-C of 1999, seeking re-admission of appeal and stay of execution proceeding, respectively but both these petitions were dismissed on 23-10-2001. The respondent did not receive back the memorandum of appeal, ordered to be returned on 21-9-1999 by the Honourable Division Bench till 29-1-2002 on which date it was received but was filed before the learned District Judge, Lahore, on 1-2-2002. The respondents while filing the returned appeal before the learned District Judge, filed an application under section 5 of the Limitation Act of 1908, seeking condonation of delay in filing the appeal. The petitioners appeared before the learned Additional District Judge, to whom this appeal was marked for hearing, at the preliminary stage and objected that the appeal is beyond period of limitation. The learned Additional District Judge who was seized of the appeal, after hearing the parties, concluded through the order impugned dated 6-2-2002 that the appeal is within time. The petitioners have come up in revision before this Court assailing findings of the learned Additional District Judge, touching the limitation.
4. The learned counsel for the petitioners submits that the judgment and decree, appealed against, was passed by the learned trial Court on 29-6-1998, whereas the respondents filed an appeal before the learned Additional District Judge on 1-2-2002, after lapse of almost 4 years, and on the face of the record was barred by limitation. He further submits that the respondent did file an application under section 5 of the Limitation Act, 1908, seeking condonation of delay but this provision of law was not applicable to the cases, the like one in hand, whereas it could have been condoned under section 14 of the Limitation Act, 1908 on furnishing sufficient cause, in this behalf.
He goes on elaborating his submission and contends that application under section 5 of the Limitation Act, 1908 was not filed by the respondent, itself but it was moved by the counsel and was not supported by any affidavit. It is also a grievance of the petitioner that the learned Additional Judge while deciding the point of limitation did not provide the petitioners, an opportunity of filing the reply to the application under discussion and according to him, due to this lapse, all the material facts relevant for determination of condonation of delay, could not be taken note of by the appellate Court. It is also contended that the application filed by the respondent on the face of it, does not make out a case for condonation of delay, as respondent itself insisted before this Court, by filing different applications for entertaining the appeal (RFA No,337 of 1998) in the High Court, in spite of the fact that increase in pecuniary jurisdiction of District Court and shortfall of it, in the jurisdiction of the High Court, had come to its notice.
5. The learned counsel appearing on behalf of the respondent, refuting submissions of the petitioner, argued that the appeal was within time as it was returned on 29-1-2002 by the High Court and was re-filed on 1-2-2002, but out of abandoned caution respondent filed application under section 5 of the Limitation Act, 1908. The learned counsel for the respondent relied on the judgment reported as AIR 1971, Allahabad 473, and argued that the limitation for filing an appeal shall be computed from the date when it is returned to the appellant.
6. I have considered the arguments of the learned counsel for the parties and have perused the record appended herewith. Objection of the petitioners that application by the respondent was not competent under section 5 of the Limitation Act, 1908, and instead he should have filed application under section 14 of the Act has no substance in it, because this application cannot be dismissed merely because section 14 of the Act was not mentioned thereover. Courts have to see the gist and substance of the application. If it makes out a case for interference under section 14 of the Act, then it cannot be dismissed, on such, objection. Since I intend to remit back the matter for fresh decision on this application, I refrain from commenting any further on maintainability of this application under section 14 of the Act and it will also be decided by the appellate Court.
7. The learned counsel for the respondent could not refute the fact that his application under section 5 of the Limitation Act was not supported by an affidavit and the learned Additional District Judge proceeded to decide the question of limitation, without obtaining any kind of reply from the petitioner and without giving them an opportunity to produce document, if any, in support of their stance. Submissions of the learned counsel for the petitioners that the respondent insisted for entertainment of the appeal by this Court, in spite of order of return of memorandum of appeal by filing C.M.5 and C.M.6 of 1999 and the fact that the order of return was passed by this Court on 21- 9-1999, respondent received back the memorandum of appeal of 29-1-2002, are borne out from the record but were not taken into consideration at the time of passing of the impugned order, most probably for the reason that no reply was filed by the petitioners to the application under section 5 of the Limitation Act.
8. No doubt appellate court has taken a view, in the impugned judgment that there were two decree sheets, one for Rs,1,38,869/13 and the other for Rs,11,15,941/44 and thus respondent was misled about the forum of appeal but above referred conduct of the respondent whereunder, in spite of order of return of memo. Of appeal by this Court, if it was not received back and was not, immediately presented to the Court of learned District Judge has not been adverted to, by the appellate Court. Since the order impugned was passed without comprehending all the facts and circumstances of the case and thus is illegal and suffers from material irregularity, amenable to revisional jurisdiction of this Court. 1, accordingly set aside the judgment/order dated 6-2-2002 passed by the learned Additional District Judge Lahore, remit the case back to it for fresh decision on the application of the respondent, filed by it under section 5 of the Limitation Act, 1908 which shall be deemed to be pending and shall be decided after getting a reply to this application from the petitioners and providing both the parties an opportunity to produce evidence in form of documents, if any, in support of their case. This revision petition is accordingly accepted, with no order as to costs.
9. Suit under adjudication was filed in the year 1958 and since then parties had been litigation over a question of entitlement of damages, suffered by the predecessor of the petitioners, therefore, I direct the learned Additional District Judge to conclude decision on appeal, expeditiously.