' SAHIB KHAN, J.--- This civil 1st appeal has been preferred by the appellants/defendants, against the order dated 16-9-2004, passed by the learned Civil Judge 1st Class, Skardu, whereby, he dismissed the petition under Order IX, rule 13 read with section 151, C.P.C.
2. The brief facts of the case are that respondents/plaintiffs had filed a civil suit against the appellants/defendants before the Civil Judge 1st Class Skardu, for recovery of Rs,9,00,000 on account of compound interest on compensation money. Defendant No,4 filed conceding written statement, while due to non-appearance of counsel as well as representatives of appellants/defendants Nos.1 to 3 on four consecutive dates the trial Judge passed an ex parte decree on 14-5-2004, in favour of plaintiffs against defendants.
3. Feeling themselves aggrieved from impugned order/decree, appellants/defendants filed an application on 8-6-2004 for setting aside the ex parte decree, dated. 14-5-2004. This application also met the same fate on 16-9-2004. The appellants/defendants approached District Court by filing an appeal on 18-10-2004, for setting aside the order, dated 16-9-2004 and remittance of the case to the trial Court, but this appeal was returned to appellants on 6-8-2005, due to lack of pecuniary jurisdiction in the presence of the counsel for appellants. The relevant dates are given under to make it convenient for conclusion of period of limitation:-- Impugned order of Civil Judge, dated 16-9-2004 Date of appeal before District Judge = 18-10-2004 Date of return of appeal by the District Judge = 6-8-2005 Date of filing of appeal before this Court = 22-10-2005.
4. The order dated 6-8-2005 being much material and relevant is reproduced hereunder:- "6-8-2005. Appellant present through counsel Mr. Waqar, Advocate. Respondent in person along with counsel Syed Tahir Ali Shah present. Appeal was fixed for arguments but in the meanwhile counsel for the respondent raised the objection that the instant appeal has wrongly been filled in this Court which should have been filed in the apex Court of Northern Areas. The counsel further contended that the pecuniary jurisdiction of this Court is within the limit of Rs,2,50,000 whereas appeal is exceeding this value may be filed in the Northern Areas Chief Court. Counsel for the appeal conceded the points. The appeal is, therefore, returned to the appellant for presentation in the competent Court of jurisdiction if so advise."
5. Appellants instead of filing the same memo. Of appeal as was returned by the District Judge, Skardu, well within reasonable time in this Court, amended the memo. Of appeal and presented it in this Court on 22-10-2005, accompanied with an application under sections 5/14 of Limitation Act, seeking condonation of delay of 8 months and 13 days. They took the plea in the petition that this time was consumed due to seeking permission from competent authority for filing of appeal. The operative part of application dated 22-10-2005 is as under:-- "(6) That after return of appeal it took a period of 76 days to come instructions from Secretary Defence for filing of appeal before Honourable Chief Court Northern Areas."
6. We heard the learned Standing Advocate-General at length who submitted that the delay was occasioned due to filing of appeal before incompetent forum and as such the time consumed in that process is condonable under section 14 of the Limitation Act. The learned counsel for respondent opposed the contention and pointed out that the appellants have filed a fresh memo.
Of appeal before this Court, instead of filing the same presented in the Court of District Judge, Skardu hence, in law they are not entitled for concession under section 14 of Limitation Act, as the scope of section 14 is restricted with the time actually consumed before incompetent forum. He referred case-laws. We reproduce the above provision of law to know its scope and nature as under:--- "14. 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 proceeding, whether in a Court of 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.It prosecuted in good faith in a-Court-which, from defect jurisdiction-,...Of other cause of a like nature, is unable to entertain it.
(2) .......
7. As the reproduced para. Of the petition at para. No,6 reveals that the appellants have alleged that the delay for filing of appeal was occasioned due to seeking permission from the competent authorities but today it was urged before us that the delay was happened due to filing of appeal before wrong forum and delayed period of limitation is condonable under above provision of Limitation Act.
8. It is settled principle of law that the parties cannot depart from their pleadings and the appellants have in unequivocal words maintained that the cause of delay i,e, seeking permission from high-ups. On our query from the Standing Advocate-General that in such a situation as maintained in the petition any concession can be claimed under law his answer was of course in negative.
9. To meet the claim of pardons of time consumed in proceeding before incompetent forum a legal provision in shape of section 14 of Limitation Act is provided by the Legislature which is restricted to the cases where time actually spent before wrong forum in good faith. This provision further' restricts that the parties should be vigilant in presentation of their memos. Of appeals/plaints before the competent forum as and when it is returned. The order, dated 6-8-2005 of the learned District Judge, Skardu, indicates that the appeal was ordered to return in the presence of counsel, but the party remains mum for a period which cannot be presumed as vigilant and careful presentation within reasonable period.
10. The most significant aspect of this appeal is, that the appellants besides considerable delay in filing of appeal before this Court after its return changed and amended the original memo.
Presented before District Judge, rather a fresh memo. Has been filed before this Court. It is nowhere in law that such amended and fresh drafted memo. Amounts to be a returned memo-. For the purposes of section 14 of Limitation Act. It would be treated as fresh appeal and limitation will run as provided for filing of fresh appeals. We fully agree with the view taken in the following case-laws along with a number of other case-laws:-- 2000 CLC (Lahore) p.1290, PLD 1995 Pesh. P.86 and 1982 CLC (Karachi) p.214.
11. Iii the result we were forced by the law to dismiss the application under section 5/14 of Limitation Act being meritless and resulting it that the appeal is time-barred.
42. No order as to cost. These are the reasons of our short order dated 26-4-2007.