1. ' MUZAFFAR ALI, J,--- This civil first appeal has been preferred against judgment/decree, dated 17- 9-2004, passed by the learned Civil Judge Shigar/Kharmang, whereby, the learned Civil Judge has dismissed the suit for recovery of damages filed by the present appellants and the "set off" made in the suit, by the present; respondents for want of cause of action against each others, hence this appeal.
2. ' The gist of the facts abstracted from the pleadings are that; the present appellants filed Suit No,73 of 1999 before the Civil Court Shigar/Kharmang against the present respondents for recovery of Rs,11,50,000 as damages for malicious prosecution and the respondent filed the "set off" of Rs,25,000 in the same nature, against the present appellants. The learned trial Judge proceeded the matter in the suit and framed as many as 6 issues including the prayer and finally, after hearing the parties dismissed the suit as well as the "set off" in the suit.
3. ' The present appellants went into appeal before the Court of learned Additional District Judge, Skardu, against the dismissal order passed by the learned Civil Judge, Shigar/Kharmang, but the appeal was disposed of by the learned Additional District Judge as withdrawn vide his order, dated 24-11-2005, for want of pecuniary jurisdiction of the District Court, hence this appeal before this Court. When the appeal came before me for the first time on 8-4-2006, I issued a pre-admission notice to the respondents. Today the parties along with their counsel attended the Court and the learned counsel for the parties argued the appeal on preliminaries. The main stress of the learned counsel for the appellants on the points is that:-
(a) The present appeal is well within time, if this Court condones, the period spent in the Court of Additional District Judge, Skardu, by accepting, the application under sections 5 and 14 of Limitation Act, with the appeal.
(b) The appellants have cause of action against the respondents to file the suit, but the learned trial Court has discussed the issue, which was not framed in suit.
4. ' The learned counsel for the respondents strongly opposed the contention of the appellants and urged that, the appeal is apparently time-barred, and the lapse of the appellants in filing of the appeal cannot be condoned under sections 5 and 14, 'Limitation Act, for the reason that, the appellants have not stated any cogent reason in their application, while under law they are bound to account for each and every day of the delay in filing the appeal. He further stated that, the appellants have no cause of action, against the respondents to file the suit and this issue has been determined by the learned trial Court with full cogent reasons.
5. ' I have gone through the record to determine the above points. The record transpires that, the first appeal preferred before the learned Additional District and Sessions Judge, has been disposed of as withdrawn by accepting the request of the counsel for the appellants in this regard, while under the law, the appeal was to be returned for presentation before the Court having pecuniary jurisdiction to entertain the same. The enabling provision of law, in this regard is Order VII, rule 10, C.P.C. Though the provision is applicable to the suits and plaints but the appeal being the continuation of original cause or suit, the Appellate Court is empowered under section 107 subsection (2), C.P.C. To return the appeal under Order VII, rule 10 and it provides a procedure through its sub-Rule (2) to be followed at the time of returning the plaint as that "the concerned Judge shall endorse thereon date of its representation and return, the name of the party filed the suit, brief statement and reasons for returning it". In the case in hand, neither the counsel for the appellants seems, to be acquainted with relevant law such as he requested, the Court to dispose of the appeal as withdrawn for want of pecuniary jurisdiction of the Court, nor the learned Additional District Judge has acted upon the relevant law and has followed the proper procedure as stated above. In this context PLD 2001 SC page 355 is relied upon.
6. ' This tendency of violating and ignoring the law by the Judicial Officers and the Advocates, is deplorable, which may cause trouble and irreparable losses to the litigant public, hence, the Judicial Officers in the area are strictly intimated to be well versed of relevant law, while passing judicial orders.
7. ' Since the appeal presented before the learned Additional District Judge, has not been returned, but has been disposed of as withdrawn, as such the period consumed in the Court of learned Additional District Judge cannot be condoned under law. Furthermore, for arguments sake, if the period consumed, in the Court of Additional District Judge, is considered to. Be condonable, then too, the appeal before this Court is, time-barred, for the reason that, the appeal before the Additional District Judge Was disposed of on 24-11-2005, while the appeal before this Court has been filed on 8-4-2006, which means after lapse of 3 months and the same has not been requested for condonation in the application.
8. ' As far the second point of the learned counsel for the appellants is concerned, it needs not to be discussed or considered, for the reason that, the present appeal is hit by limitation, but for academic appreciation of the legal dictum adopted by the learned trial Court, in arriving at conclusion that, the appellants have no cause to file the suit. I just want to say that, the learned trial Judge who is a young, and newly appointed Judicial Officer has very properly quoted the conditions laid down by Salmond, regarding the suit for damages on the ground of malicious prosecution and in addition, I would say that, the declaration of malicious prosecution by the Judge or the Magistrate in the judgment, is also a precondition to file a suit on the 'basis of malicious prosecution.
9. ' What the above discussion follows, is that the E in limine as time-barred and the application for condonation is also rejected.