MAZHAR ALAM KHAN MIANKHEL, J.---This single judgment of mine will dispose of R.F.A. No,296 of 2006 and. C.R. No,1068 of 2007 as common questions of facts are involved in both the cases in between the same parties and this would also exclude the chance f contradictory findings as it happened when both the cases were tried, heard and decided independently by the courts below which is an irregularity and illegality apparent on the face of the record.
2. The present plaintiff/appellant (hereinafter called appellant) had filed a suit for specific performance of an agreement to sell dated 21-3-1999 regarding sale of a house fully described in the head note of the plaint., The claim and the agreement to sell in favour of the appellant was not specifically denied by the defendant/respondent (hereinafter called respondent) but he alleged that the appellant in spite of receiving back the entire sale consideration paid by him has filed the instant suit. Besides, he alleged yet another fact that the appellant has to pay him an amount of Rupees Nine lacs which he had received from him as a loan. After recording of pro and contra evidence, the suit of the appellant was dismissed by the trial Court vide its judgment and decree dated 30-6-2005.
3. After dismissal of his suit, the appellant challenged the judgment and decree of the trial court dated 30-6-2005 by way of an appeal in the Court of learned District Judge, Kohat on 29-7-2005, the same was entertained and registered by the Addl. District Judge on 30-7-2005. After preliminary hearing on 15-10-2005, the same was admitted to regular hearing but the same was returned to the appellant on 20-11-2006, after about sixteen months, for want of pecuniary jurisdiction and on 9-12-2006 instant appeal was filed in this court.
4. The respondent herein (plaintiff in suit for recovery) also filed a suit for recovery of rupees Nine lacs out of total of rupees Fifteen lacs on the strength of an agreement dated 13-2-1999 allegedly advanced as loan to present appellant (defendant therein). The respondent in the very head note of his plaint admitted the -receipt of rupees six lacs through Cheque No,872882 dated 3-5-1999 of National Bank of Pakistan. His suit was initially dismissed by the trial Court vide his judgment and decree, dated 30-6-2005 but his appeal there against in the Court of Addl. District Judge, Kohat was allowed vide judgment and decree dated 18-7-2007 and his claim in the recovery suit was decreed in his favour against the present appellant (defendant in that suit). The present appellant feeling himself aggrieved of the said judgment and decree filed instant C.R. No,1068 of 2007 on 2-8- 2007.
5. Before hearing of both the cases, the learned counsel for respondent raised preliminary objections regarding maintainability of present appeal being barred by law of limitation by submitting that the appellant on the wrong advice of his counsel filed his appeal against the judgment and decree dated 30-6-2005 in the Court of District Judge, Kohat on 29-7-2005, in a wrong forum having no pecuniary jurisdiction. So, under the law, he was not entitled to claim the benefit of condonation of delay under section 14 of the Limitation Act, IX of 1908 as wrong advice of counsel is not a valid ground for condonation of delay. The learned counsel for the respondent by explaining his point of view submitted that the order dated 15-1-2007 of this Court in C.M. No,504 of 2007 was passed behind his back so he filed his separate C.M. Bearing No,204 of 2007 on 28-5- 2007 in this regard. The main contention of the learned counsel for the respondent was that the appeal of the appellant was barred by 16/17 months and the appellant is not entitled for any condonation of delay as no sufficient and reasonable ground was raised in the above referred C.M.
No,504 of 2006. He further submitted that the provisions of section 14 of the Act of 1908 are applicable to the suits only so the appellant at this stage cannot seek benefit of the same in instant appeal. In support of his submissions, the learned counsel placed reliance on the cases of Masud Ahmad and 2 others v. United Bank Limited (1992 SCMR 424), Furon Habib and others v.
Government of Pakistan and others (2006 SCMR 460), Monazah Parveen v. Bashir Ahmad and 6 others (2003 SCMR 1300), Mehtab Khan and others v. Faiz Muhammad (PLD 2003 Peshawar 46) and M.C. Tank through Town Nazini Town II, Tank and another v. Waris Khan and 2 others .(2005 CLC 154).
6. The learned counsel for the appellant while refuting the objections raised by the learned counsel for the respondent was of the view that filing of appeal in the court having no pecuniary jurisdiction within the prescribed period of limitation though was the fault of the appellant on the face of it but the same was entertained by the Clerk of the Court by treating the same to have correctly been filed. The same was then entertained and registered by the Additional District Judge. The same was later on admitted to full hearing. Notice to the respondent was also issued by the court but finally on 20-11-2006 after 16/17 months, the same was returned to the appellant for want of pecuniary jurisdiction. So, there was no fault of the appellant in this regard and the appellant or his counsel in the circumstances cannot be burdened for such delay; it is the settled law of the land that a party should not suffer because of the act of the court by submitting that the appellant is entitled for the condonation of delay under section 14 of the Act IX of 1908. He in support of his submissions placed reliance on the cases of Sherin and 4 others v. Fazal Muhammad and 4 others (1995 SCMR 584) and Taza Gul and others v. Haji Fazal Subhan (2006 SCMR 504).
7. Since the preliminary objections raised by the learned counsel for the respondent had a great importance on the question of maintainability of appeal so before entering into merits of the case, this court would like to discuss and decide the above said preliminary objections first.
8. The perusal of the record in this regard would establish the fact that initially the appeal was filed before a forum having no pecuniary jurisdiction but well within the prescribed period of time. The same was entertained and registered as an appeal competently filed. The same was then heard and after preliminary hearing, notice to the respondent was also issued. The record available on the appeal file would further establish the fact that then this case was kept on adjourning till 22-2- 2006 because of transfer of the Presiding Officer. After the arrival of the successor in office, the case was fixed for hearing on 7-6-2006 and once again kept on adjourning till 13-11-2006. The same was finally heard on 20-11-2006 and the appeal along with relevant record was returned to the appellant. Such an exercise consumed about 16/17 months.
9. The objection as raised by the learned counsel for the respondent apparently seems to have great force and such a long delay of (17) months cannot be condoned and that too, on the wrong advice of the counsel which cannot be held as a valid ground for condonation of delay but keeping in view the facts and circumstances of the case as apparent from the face of the available record, same require a careful examination of the entire episode so that justice to the parties be done.
10. It is the initial and foremost duty of the office to see and check whether the appeal being filed is within the period prescribed by law and then it becomes the duty of the court to see and determine as to whether it has got the jurisdiction to entertain and hear the appeal as office is not supposed to examine the jurisdictional side of the appeal and it is the sole responsibility of the Presiding Officer of the court to determine the question of its jurisdiction, as was held by their lordships in Sherin's case (supra).
(j) High Court (Lahore) Rules and Orders---Vol.I, Chap.1-B, R.5 and Chap. 14-B, R.5---Appeal- Jurisdiction of Court-- Determination-Duty of Court---Held, so far as the jurisdictional side was concerned, it was none of the functions of the Court officials to examine the memorandum of appeal from that angle but it was the sole responsibility of the Presiding Officer of the Court, to pass an order admitting or rejecting ,the appeal. If an appeal once filed in a court, the office reports to have competently been filed and then the court also -issues notices to the respondents after hearing the same then in that situation whether the party or his counsel filing appeal could be held responsible and the party can be refused the benefit of condonation delay. Simple 'No' would be the answer to such questions as in such like situation the fault would be of the office and then of the court. The counsel or party in the circumstances could not be held responsible because, had it been properly checked and seen then the same would have been returned on the very first day of its presentation or at its earliest and then the appellant would have sufficient time to approach the proper forum as the period of time prescribed under the law is ninety days for filing regular first appeal in the High Court. The appeal of the appellant kept on pending adjudication from 29-7-2005 to 30-11-2006 almost about 16/17 months and return of appeal for want of pecuniary jurisdiction at such a juncture would be nothing else except the negligent and careless attitude of the office and then of the court. So, the B appellant in the circumstances, cannot be held responsible for such a delay as it is settled principle of law that none can be prejudiced by the act of court. Reliance in this regard could be placed on Taza Gul's case 2006 SCMR 504 (supra). The case-law referred and relied upon by the learned counsel for respondent in the peculiar circumstances of the case is distinguishable and cannot be made applicable.
11. As far as application of the provisions of section 14 of the Act IX of 1908 to appeals is concerned, no doubt the language of the section reflects that it applies to suits and applications only and word appeal is not mentioned therein. But refusal of condonation of delay to a party no doubt who was in a wrong forum in the circumstances like the one in hand would amount to an injustice to the party who had the only fault that it chose a wrong forum at the advice of its counsel but vigilant enough that it approached well within the prescribed time. Had it been returned there and then, the party would have filed its appeal before proper forum. Law in this regard has since been developed. Such a relief is granted to the appellants who acted in good faith by considering the provisions of section 5 of the Act IX of 1908. The appellant is required to show that there was a sufficient cause within the meaning of section 5 of the Act IX of 1908 for not preferring the appeal in the High Court within the prescribed period of time. The cause of delay in filing appeal as discussed above, no doubt was sufficient enough for the purpose of condonation. His case is fully covered under section 5 of the Act ibid. Reliance in this regard could be placed on Sherin's case (supra), wherein their lordships held as under:--
(i) Limitation Act (IX of 1908)- ---S.5---Delay in filing appeals---Condonation----Sufficient cause---District Court held up the appeal for a period of over 10 months in discovering that it had no jurisdiction and that the appeal should have been filed in the High Court---Appeal instituted in the District Court was filed well within time and a period of more than two months was available to the appellant for filing the same in the High Court---Held, had the District Judge applied his judicial mind to the record before him; attended to the value of the appeal for jurisdictional purpose and returned the memorandum of appeal to the appellant, without undue delay, he could have easily filed it in the High Court within the period of limitation---Omission on the part of District Judge to take timely action was the major cause of re-filing of the appeal by the appellant in the High Court, out of time-- Appellants were thus victims of the act of the Court which furnished "sufficient cause" under S.5 of the Limitation Act, 1908 for condonation of delay---Fact that after receiving the memorandum of appeal from the District Court, some time was consumed by the appellant, in presenting same to the High COurt, in the circumstances, was inconsequential---Supreme Court condoned the delay in presenting the memorandum of appeal to the High Court.(pp.593,598) D, N & 0".
12. So, in this view of the matter, the delay occasioned in filing of instant appeal is hereby condoned and the instant appeal is hereby declared to have been filed within the prescribed period of limitation.
13. The learned counsel for the appellant while submitting on merits of the case was of the view that the two suits between the same parties should have been consolidated as a common question of fact regarding payment through Cheque No,872882 of rupees six lacs was involved in both the suits but with altogether different narration. In the suit for specific performance filed by the present appellant, the said payment has been alleged to have been made as a part payment of sale consideration on the strength of agreement to sell whereas the suit for recovery of rupees Nine lacs filed by the respondent against the present appellant, subject-matter in the above said Civil Revision, clearly shows that the respondent has admitted the receipt of said cheque but has alleged it to be an adjustment for his loan outstanding against the appellant. Relevant part of the judgment dated 30-6-2005 of Civil Judge, Kohat regarding payment through above cheque in the suit for specific performance of the contract is reproduced below:-: "In the light of above, it is clear that defendant has received Rs,6,00,000 through Cheque 'No, PLS- 10/APP 872882 on 3-5-1999 and plaintiff did not produce any receipt with regard to earnest money and payment dated 21-3-1999, therefore, rest of the amount is not proved by plaintiff , so defendant has received Rs,6,00,000 from plaintiff and he performed small part of contract. All these issues are decided accordingly".
14. Similarly in appeal against dismissal of recovery suit, the relevant para of the judgment is reproduced:- "He also admitted that fact to be correct that he put his signature on the Cheque in English, therefore, keeping in view the available record present on file, it is said that there is weight in the plea of the plaintiff because regarding the agreement deed the testifier Nadar Khan Khattak advocate, the marginal witness of the said deed who validate the factum of the scribing of the deed in their presence, the official - of the concerned Bank regarding the Cheque of rupees six lacs have been produced coupled with the fact that the defendant has also admitted in his cross- examination that he has put his signature over the Cheque in English. The marginal witness of the deed have also affirmed that they have put their signatures on the deed, therefore, with these observations; the findings of the learned trial court are not according to the available record/evidence. Resultantly, instant appeal is accepted; the impugned judgment dated 30-6- 2005 of the learned lower court is set aside and the suit of the plaintiff is hereby decreed in his favour against the defendant".
15. A look at the above quoted portion, of the judgment, in two different suits will make it clear that the same are entirely contradictory in nature. At such a juncture, the learned counsel for the respondent was called upon to clarify as to whether the findings in both the suits regarding payment of rupees six lacs are not contradictory but the reply of the learned counsel Messrs Shakeel Azam Awan, Haji Muhammad Zahir Shah and Hasin- ud-Din Khattak, advocates was not satisfactory enough as to convince this court. The learned counsel for the respondent though tried to make out their case by submitting that both the suits have been based on different and independent agreement but were unable to justify the above said payment through cheque.
16. So, in this view of the matter, findings rendered by the courts below cannot be held to have been based in accordance with law. The remand of the cases thus has become inevitable. So, by allowing the appeal and revision, the judgments and decrees passed in suit for specific performance and in suit for recovery are hereby set aside. Both the suits are sent back to the trial court to frame the consolidated issues and record the evidence of both parties in, this regard and decide the controversy between the parties. Parties are directed to appear before the Court of Senior Civil Judge, Kohat on 6-6-2011. Appeal allowed. The parties are in litigation .For more than a decade, so the trial Court is directed to decide the matter as early as possible but not later than (4) four months.