Civil Miscellaneous No,2/C of 2007 ' On 29-10-2008, before the learned counsel for the appellant could open his case, learned counsel for respondent No,1 raised a preliminary objection to the effect that instant appeal is barred by time. Appellant had filed Civil Miscellaneous No,2 of 2007 for the condonation of delay, therefore, arguments were partly heard on the said date and the case was adjourned for 30-10-2008 and detailed arguments were heard on this application. We propose to decide the same.
2. Brief facts of the case are that respondent No,1 initially filed a suit for permanent injunction, thereafter, by way of amendment prayer for possession was also added and accordingly valuation of the suit for the purpose of jurisdiction and court-fee was fixed by respondent No,1/plaintiff as Rs,35,00,000. Learned trial Court after the conclusion of trial vide judgment and decree, dated 28- 11-2006 decreed the suit. This decree was challenged by the petitioner and respondents Nos.2 to 5 through an appeal before the learned District Judge filed on 7-2-2007. Along with the appeal an application under section 5 of the Limitation Act was also filed before the learned District Judge for condonation of delay in filing appeal before the said forum. Respondent No, 1/plaintiff filed two applications on 20-4-2007 and 29-5-2007 for the dismissal of appeal as the said Court had no pecuniary jurisdiction. These applications were contested by the appellant and respondents Nos.2 to 5. However, the learned trial Court ultimately vide order, dated 30-6-2007 returned the appeal for its presentation before the appropriate forum. The appeal was presented only by Muhammad Ramzan while his co-appellants have been arrayed as respondents Nos.2 to 5 in the memorandum of appeal filed before this Court on 21-7-2007.
3. It is submitted by the learned counsel for respondent No,1 that appeal filed by the appellant and respondents Nos.2 to 5 before the learned District Judge was even barred by time as the impugned judgment of the learned trial Court was passed on 28-11-2006 and the application for copies was made on 20-1-2007, which were prepared and delivered on 22-1-2007 and the appeal was filed on 7-2-2007, therefore, for the purposes of the said Court the appeal was barred by time. It is next argued that after the conversion of suit from permanent injunction to suit for possession its valuation was changed to Rs,345,00,000, therefore, the appeal was only competent before this Court and not before the learned District Judge, therefore, wrong forum chosen by the appellant has created a right in favour of respondent No,1 for seeking dismissal of appeal on this score alone.
4. On the other hand, learned counsel for the appellant/applicant contends that the decree-sheet drawn by the learned trial Court was inherently defective, inasmuch as, it did not contain the valuation of suit for the purposes of court-fee and jurisdiction as required by Rule 4 of Chapter 3-B of Volume-I of the High Court Rules and Orders. It is next submitted that although Issue No,7 with regard to valuation was framed but it also did not contain any findings.
5. It is next submitted that it was the duty of the learned Appellate Court under Rule 2 of the same part to ascertain the valuation to determine its pecuniary jurisdiction before proceeding further in the appeal and in case of any doubt the record of trial Court should also be summoned.
6. It is further submitted that since decree-sheet did not contain the valuation of the suit, an application was filed by the petitioner/appellant before the learned trial Court for its correction/incorporation in the decree-sheet which according to him is pending.
7. We have considered the arguments of the learned counsel for the parties.
8. Undoubtedly, if an appeal is barred by time, a right accrues in favour of the respondent, which should not be lightly interfered with A unless there are sufficient grounds for the condonation of delay in the presentation of appeal before the proper forum. If the period already spent before the learned District Judge from 7-2-2007 till the return of appeal i,e, 3-6-2007 is excluded for sufficient reasons shown by the appellant, the time spent comes, to 87 days i,e, within prescribed limit for filing appeal before this Court. However, if this period is not to be excluded then appeal would be certainly barred by time.
9. Law requires a litigant to be vigilant in pursuit of his rights but at the same time it is the command of law for the Courts as well to be careful in handling the cases strictly in accordance with law. In this case we have observed that the learned trial Court was necessarily required to have mentioned the valuation of suit on the face of the decree-sheet which it has failed as required by Rule 1 of Chapter 3-B of Volume I of the Lahore High Court Rules and Orders. The learned Appellate Court was also required under Rule 2 of the same Chapter to ascertain the value.
If the copies supplied with the memorandum of appeal do not disclose the value then it should have sent for the record to ascertain the same. Handling of the case by the learned Appellate Court is also not up to the mark. We have noted that the case was received by entrustment to the learned Additional District Judge on 17-2-2007 when he directed its registration, presumed the appeal to be a revision and directed to issue notice to respondents for pre-admission hearing for 23-2-2007. Record does not indicate that any notice was issued to the respondents for 23-2-2007.
On this date again an observation was made by the learned Judge for the registration of the appeal by entrustment which he had already done on 17-2-2007. In complete disregard to his earlier order on the basis of submissions made by the learned counsel for the appellants, he admitted the appeal to regular hearing and summoned the record. When first application on 20- 4-2007 was filed by the respondent for dismissal of appeal on account of lack of pecuniary jurisdiction the record was still not available with the learned Appellate Court and it was again requisitioned. Then again another similar application was filed on 29-5-2007 and after obtaining its reply ultimately the appeal was returned on 30-6-2007.
10. There is undoubtedly a lapse on the part of the appellant/ petitioner of having chosen wrong forum but this lapse has a contribution of the learned trial Court as well for not incorporating the jurisdictional value of the suit on the face of the decree-sheet. Then the appeal remained pending with the learned District Judge from 7-2-2007 to 30-6-2007 there is a contributory lapse on the part of the learned Appellate Court as well in mishandling the appeal as observed above with reference to its orders, dated 17-2-2007 and 23-2-2007. Apart from this when the fact of lack of pecuniary jurisdiction was brought to its notice the learned Appellate Court was required to act with promptitude instead of lingering on the process till 30-6-2007.
11. It is thus, evident from the above discussion that if the learned trial Court had mentioned the jurisdictional value on the decree-sheet the learned District Judge on presentation of appeal on 7- 2-2007 would have returned the same immediately and the appellant could have filed the appeal before this Court. Likewise, learned Appellate Court has also played a role in the delay of return of appeal. It is thus, concluded that undoubtedly there is a lapse on the part of the appellant in choosing the wrong forum but certainly there are contributory lapses on the part of two Courts below as well, therefore, in these circumstances period from 7-2-2007 to 30-6-2007 is condoned.
Resultantly, appeal filed is held to be within limitation. Our analysis of this case and conclusion drawn is on the basis of guidelines provided by the Honourable Supreme Court in case reported as 1995 SCM R 584.