' M. JAVED BUTTAR, J.--- This appeal, by leave, is directed against the impugned judgment, dated 21-12-2000 passed by a Division Bench of Lahore High Court, Lahore, whereby R.F.A. No,265 of 1997 of the appellant was dismissed as not maintainable.
2. Relevant facts have been given, with remarkable clarity, in the leave granting order, dated 27-4- 2001 passed by this Court, which reads as under:--- "Respondent Muhammad Arif had been allowed the work: "Reconditioning of Pucca Road from Narang to Muridke, Lambray to Chohra and Kot Yaqoob to Manga Road and construction of culverts on Muridke Narang Road", vide acceptance letter, dated 18-6-1980, which was followed by an agreement between the petitioner-Zila Council Sheikhupura and him. The Agreement contained an Arbitration Clause for resolution of disputes between the contracting parties concerning the work. On such disputes arising between the parties, Executive Engineer, 1st Provincial Building Division, Lahore was appointed as sole Arbitrator by the Court on 27-11-1990 to resolve the same. The Arbitrator gave Award on 18-3-1991 finding the respondent entitled to Rs,6,49,809 in all. Respondent Contractor's claim for payment of interest/ compensation on the amount which remained withheld during the running payments subsequently released was rejected as not permissible under the agreement. The Award was filed in the Court. The respondent-contractor did not raise any objection thereto but the petitioner-Zila Council did. The Award was made rule of the Court on 21-2-1995 and, in consequence, he was allowed interest at the rate of 14% per annum on the awarded amount from the date of decree till the date of realization of the amount.
(2) The petitioner-Zila Council released the amount with interest, in terms of decree, dated 21-2- 1995.
(3) After receipt of the decretal amount with interest the respondent claimed interest at the rate of 14% per annum on the decretal amount w.e.f, 1-1-1986 to 21-2-1995, ascertaining the same at Rs,12,72,655 and brought a civil suit against Zila Council for recovery thereof. The petitioner-Zila Council resisted the suit by denying the liability and raising other objections to the suit. The trial Court overruled the objections raised by the petitioner-Zila Council in defence and decreed the suit of the respondent for Rs,12,72,655 as compensation on 7-7-1997.
(4) Aggrieved of judgment and decree dated 7-7-1997 petitionerZila Council filed R.F.A. No,265 of 1997 in the High Court which was admitted to regular hearing on 24-9-1997 and, in Civil Miscellaneous No,1/C of 1999, notice was also issued and execution of the decree stayed, meanwhile. The stay order was confirmed on 21-1-1998 and the main appeal directed to be heard in March, 1998.
(5) It appears that an undated Civil Miscellaneous No,1/C of 1999 was filed by another Advocate on behalf of the Chairman Zila Council seeking withdrawal of appeal pleading that "... It has come to notice of the appellant that the appeal has not been properly filed, nor it has been signed by the appellant which defect is crucial and needs to be rectified as such appellant may kindly be allowed to withdraw this appeal for filing afresh". The prayer clause of Civil Miscellaneous No, 1/C of 1999 reads thus: "In view of the above, it is respectfully prayed that the appeal in question be allowed to be got withdrawn with permission to refile the same".
The High Court disposed of Civil Miscellaneous No,1/C of 1999 on 20-4-1999 observed: "Allowed. The appeal stands dismissed as having been withdrawn".
(6) Pleading that petitioner-Zila Council was unaware of the preceding development and it was only when respondent-contractor applied for execution of decree that they (Zila Council) filed an application under section 12(2), C.P.C. Bearing Civil Miscellaneous No,2/C of 1999 for recall of dismissal of appeal as withdrawn with the assertion that withdrawal was an unauthorized act of the then counsel for petitioner-Zila Council.
(7) Civil Miscellaneous No,2/C of 1999 as also Civil Miscellaneous No,3 and Civil Miscellaneous No,4 of 1999 for stay were dismissed in limine with the following observation:- "The learned counsel for the appellant has relied on Maula Bakhsh, Muhammad Zahid and another PLD 1990 SC 596 to contend that if the application (for) withdrawal of a case is dismissed it will be presumed that the permission has been granted to file an appeal afresh. If this be so, the appellant shall file a fresh appeal. There is no provision under which the appeal can be returned for filing.
Even otherwise, section 12(2), C.P.C. Has absolutely no applicability. All these application are dismissed".
' This happened on 24-11-1999.
(8) Order, dated 24-11-1999 was made the subject-matter of C.P.S.L.A. 2171-L of 1999 by the petitioner-Zila Council which was disposed of by this Court on 4-4-2000, as below:-- "Learned counsel for the petitioner when confronted with the above situation asked for making an observation to the effect that the petitioner-Zila Council can bring a fresh appeal, learned counsel for respondent stated that it is to the same effect that the order impugned through this petition has been passed by the learned Members of the Division Bench of the High Court. In this view of the matter, this petition is disposed of with the observation that as the disposal of the civil miscellaneous application vide order, dated 24-11-1999 clearly talks of the availability of a right of the petitioner-Zila Council to file a fresh appeal against the judgment and decree made by the trial Court on 7-7-1997, the petitioner, if so advised, may seek its remedy by filing a fresh appeal before the High Court".
(9) Petitioner-Zila Council submitted fresh memo. Of appeal in the High Courtalong with an application for condonation of delay under section 14 of the Limitation Act (No,IX of 1908) on 13-4- 2000 which was entertained and stay of execution was also ordered. Respondent-contractor submitted in opposition Civil Miscellaneous No,3/C of 2000, on which notice was issued for 6-11- 2000. It was on the latter date that the High Court repelled the contention of petitioner-Zila Council that they had been allowed by the High Court as well as this Court to file fresh appeal and, therefore, the amended memorandum of appeal has been rightly submitted, with the following observations:-- "(6) There is no merit in the stand taken by the learned counsel for the appellant. Admittedly on the application filed by the appellant itself, the appeal was dismissed by this Court as having been withdrawn on 20-4-1999. The application under section 12(2), C.P.C. Was dismissed on 24-11-1999.
The Supreme Court of Pakistan, however, observed that the appellant can file a fresh appeal in terms of the order dated 24-11-1999. The appellant instead of filing a fresh appeal moved a miscellaneous application along, with which amended memorandum of appeal was appended. It is not understandable as to how the amended memorandum of appeal could have been filed without obtaining permission from the Court. Be that as it may, the appeal stood dismissed as withdrawn as far back as 20-4-1999 and there was no cause pending before this Court after the dismissal of the application under section 12(2), C.P.C. On 24-11-1999. Consequently, neither the amended memorandum of appeal nor any miscellaneous application could be moved in a matter which already stood decided.
"In view of what has been said above, it is directed that the amended memorandum of appeal and Civil Miscellaneous No,1/C of 2000 and Civil Miscellaneous No,2/C of 2000 are dismissed as being not maintainable".
(10) Hence this petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 seeking leave to appeal against judgment, dated 21-12-2000.
(11) Mr. Gul Zarin Kiani, learned Advocate Supreme Court appearing on behalf of petitioner-Zila Council has contended that the learned Members of the Division Bench of the High Court are in error in passing the impugned judgment is that the defect in drawing of the memorandum of appeal could be rectified by return thereof and its presentation again within a specified period of time in terms of Order XLI, rule 3, C.P.C. As also in the exercise of inherent jurisdiction of the High Court in that behalf, as held in General Manager, heavy Vehicles Factory, Avadi, Madras and another v. T. Shadrak AIR 1979 NOC 55 (Mad.), Chintapatla Venkatanarsimha Ramchandra Rao and others AIR 1933 Mad. 358, Hans Raj Akrot v. State of Himachal Pradesh AIR 1989 HP 43, Haji Muhammad Islam v. Muhammad Rafique and 2 others 1991 CLC 84, Khushi Muhammad and 4 others v. Khairat Hussain and 6 others 1990 CLC 813, Qadir Shams v. Winston Bakhsh PLD 1989 Lah.
523, Mian Fazal Ealhi v. Additional District Judge and another PLD 1988 Lah. 239 and Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289. He also referred to section 107(2) read with Order XXIII, rule 1, C.P.C. To contend that these provisions also apply to the case of his clients for filing a fresh appeal in the High Court. He also referred to Order VII, rule 10 and section 107(2), C.P.C. And contended that in view of Mst. Hawabai and 6 others v. Abdus Shakoor and 8 others PLD 1970 Kar. 367, Abdul Shakoor and others v. Mst. Hawabai and others 1982 SCMR 867, Miss Shah Begum v. Ashraf Ali Naz PLD 1993 Kar. 151, Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102 and unreported judgment rendered by this Court in Civil Appeal No,824 on 1-12-2000, his clients were entitled to file a fresh or amended memo. Of appeal. The precise plea was that a joint-reading of the orders, dated 24-11-1999 of the High Court and dated 4-4-2000 of this Court in C.P. 2171-L of 1999, does bring it to the fora that his clients had the right to refile the appeal in the High Court which could not be negated through the impugned judgment. He concluded his arguments with the assertion that his client's application seeking withdrawal of appeal with permission to refile the same after removal of the alleged defects (1) could have been acceded by the High Court in toto or (2) it could reject the application and proceeded with hear the appeal on merits, as found in the cases reported as Karim Gul and another v. Shahzad Gul and another 1970 SCMR 141, Moula Bakhsh v.
Muhammad Zahid and another PLD 1990 SC 596, Hans Raj Akrot (supra), Khairat Hussain (supra), Haji Muhammad Islam (supra) and Qadir Shams (supra).
(12) Mian Hamid Farooq, learned Advocate Supreme Court appearing on behalf of the respondent/caveator referred to Mahboob Khan v. Hassan Khan Durrani PLD 1990 SC 778 to contend that filing of a 'fresh appeal" by the petitioner-Zila Council has not been established on the record and that in any case, section 14 of the Limitation Act, 1908 was not attracted to the facts and circumstances of this case, therefore, petitionerZila Council has no right to ask for grant of leave to appeal against the impugned judgment, dated 21-12-2000.
(13) Leave to appeal is granted to consider the respective pleas raised on behalf of the parties.
Civil Miscellaneous No,59 of 2001
(14) Until the hearing of the appeal within three months from today, the execution proceedings are stayed. This disposes of Civil Miscellaneous No,59 of 2001."
3. We have heard the learned counsel for the parties and have also seen the available record with their able assistance.
4. The arguments of the learned counsel for the parties are to the same effect which have been recorded in the leave granting order reproduced above. Learned Advocate Supreme Court for the appellant has further relied on Mst. Khadija Begum and 2 others v. Mst. Yasmeen and 4 others PLD 2001 SC 355.
5. In the previous round of litigation, the High Court vide its order, dated 20-4-1999 while allowing Civil Miscellaneous No, 1/C of 1999 dismissed the then appeal of the appellant as having been withdrawn. The prayer in the above application was that the appellant be allowed to withdraw the appeal with the permission to refile the same.The effect of allowing the said application was that the appellant was given the permission to file a fresh appeal. This Court vide its order, dated 4-4- 2000 while disposing C.P.L.A. No,2171-L of 1999 filed by the appellant, which had arisen out of appellant's application under section 12(2), C.P.C., had also observed that the appellant had a right to file a fresh appeal before the High Court against the judgment and decree passed by the trial Court and it was further observed that the appellant, if so advised, may seek its remedy by filing a fresh appeal before the High Court. In these circumstances, the High Court, in the impugned judgment, correctly observed that how could appellant, instead of filing a fresh appeal, move a miscellaneous application along with which amended memorandum of appeal was appended because the appeal stood dismissed as withdrawn as far back as 20-4-1999 and there was no cause pending before the said Court. Meaning thereby that the appellant could avail the remedy only of filing a fresh appeal. Since the remedy of filing fresh appeal before the High Court is still available to the appellant, although the learned Advocate Supreme Court for the respondent has reservations about it, therefore, we fail to understand the grievance- of the appellant. We do not see any legal defect in the impugned judgment. We also observe that filing of a "fresh appeal" by the appellant before the High Court has not been established on the record. We are deliberately not going into the question of limitation or of the applicability of section 14 of the Limitation Act, 1908, which according to the learned Advocate Supreme Court for the respondent, is not attracted to the facts of the present case, because if and when the remedy of fresh appeal is availed by the appellant before the High Court against the judgment and decree passed by the trial Court the respondent shall have an opportunity to raise all possible legal and factual pleas and objections.
Consequently, this appeal is dismissed with the observation that the appellant may, if so advised, seek its remedy by filing a fresh appeal before the High Court. There is, however, no order as to costs.