' MAZHAR ALAM KHAN MIANKHEL, J.--- The petitioner being plaintiff of a suit for recovery against the defendant/respondents, feeling himself aggrieved of the findings of two Courts below, whereby his suit was rejected by Civil Judge-IX, Peshawar vide his judgment/order dated 24-10-2005 and appeal thereagainst was also dismissed by the Additional District Judge-VII, Peshawar vide his judgment and decree dated 30-5-2007, has impugned the same through present revision petition.
2. The learned counsel for the petitioner submitted that he initially filed a suit for recovery against the defendant/respondents which was returned by the civil Court on 19-2-2004 for want of jurisdiction. Consequent upon the said order of return of plaint, he accordingly filed a suit for recovery in the Court of Judge Banking Court, Peshawar which too was returned to the petitioner on 26-11-2004 again on the question of jurisdiction that the Banking Court has got no jurisdiction and being a civil matter be presented in Civil Court. The petitioner again in compliance of the order of Judge Banking Court, filed a suit in the Court of Senior Civil Judge, Peshawar on 11-12-2004 which was rejected by the. Court vide judgment dated 24-10-2005 by declaring it to be time-barred and his appeal against the same was also dismissed. After giving the entire picture of the case, he submitted that the petitioner while acting in good faith complied with the decisions of the Courts.
The decisions of the Courts regarding return of plaint consumed sufficient time, such delay in no way can be attributed to the petitioner. He under the law, in the peculiar circumstances of the case, is entitled for condonation of delay under section 14 of the Limitation Act IX of 1908 as his legal rights cannot be refused because of act of Court as he remained the rolling stone since May, 2003 on the question of jurisdiction. In support of his submissions, the learned counsel for the petitioner placed reliance an cases Miss Shah Begum v. Ashraf All Naz (PLD 1993 Karachi 151), Mst. Hawabai and 6 others v. Abdus Shakoor and 8 others (PLD 1981 Karachi 277), Messrs Pakistan Agro Forestry Corporation Ltd. v. T.C. PAF Pakistan (Pvt.) Ltd. And others (PLD 2003 Karachi 284), Tanveer Jamshed and another v. Raja Ghulam Haider (1986 CLC 456), Riaz-ur-Rehman Khan v. Lufthansa German Airlines, Quaid-e-Azam International Airport, Karachi (PLD 2002 Karachi 434), Bahadar Alam and others v. Abdul Razzak and others (2001 YLR 331), Salawal Khan v. Wall Muhammad and others (2002 SCMR 134) and Mst. Anwar Bibi and others v. Abdul Hameed (2002 SCMR 144).
3. As against that, the learned counsel for the respondents submitted that the petitioner is not entitled for the relief under section 14 of the Act of 1908 as the original order of return of plaint attained finality against the petitioner and the same was not challenged in appeal or revision before the higher forum. He further submitted that the original plaint, returned to him by the Courts below was not presented in original which is a public document which cannot be retained by him or amended without the prior permission of the Court. He further submitted that it was incumbent upon the petitioner to have filed the suit before the Banking Court as early as possible but he filed the same with a delay of 42 days and again he filed the present suit after a delay of 17 days and such delay cannot be condoned and submitted that the findings given by the Courts below are in accordance with law which do not call for interference. In support of his contentions, the learned counsel for the respondents placed reliance on cases of Mst. Qudsia Begum (through L.Rs,) v.
Hazoor Ahmad. Khan and another (1989 MLD 1073), Mst. Khalida Begum and 2 others v. Mst.
Yasmeen and 4 others (2000 CLC 1290), Miss Shah Begum v. Ashraf Ali Naz (PLD 1993 Karachi 151), Muhammad Nawaz Khan and another v. Mst. Farrah Naz (PLD 1999 Lahore 238), Sardaraz Khan and 36 others v. Amirullah Khan and 34 others (PLD 1995 Peshawar 86) and Mst. Hawabai and 6 others v. Abdus Shakoor and 8 others (PLD 1981 Karachi 277).
4. The learned counsel for the parties were heard and record of the case was perused.
5. Record of the case would reveal that the petitioner filed a suit for recovery against the defendant/respondents in May, 2003 and since then he has been dealt with like a rolling stone by the Courts below and his case was not considered on merits. The impugned orders of the two Courts below would further reveal that lastly his suit was rejected being barred by law of limitation and in appeal too, the findings of the lower Court were upheld on the same analogy.
5-A. Before we discuss the merits of the case, the relevant portion of the original order of return of plaint appears to be necessary which is reproduced as under:--- "The matter under fire relates to contract/agreement involving money allegedly executed with the managing director corporate etc. The Stock Exchange Karachi as well as Peshawar deals with sale and purchase of shares of different listed companies for the purpose of investment. The defendants are Investment Company and financial institution in view of Financial Institutions (Recovery of Finances) Ordinance, 2001. It fulfils all the salient features of financial institutions u/s 7 subsection (4), Financial Institutions (Recovery of Finances) Ordinance, 2001. All the cases instituted against financial institutions fall beyond jurisdiction of the civil Court and are exclusively triable by Banking Courts. Hence upon partial acceptance of the application the plaint is returned in original to the plaintiff for presentation before the proper forum."
6. Accordingly when the suit was filed in the Banking Court, the same was once again returned to the petitioner by the Banking Court vide its judgment dated 26-11-2004. Relevant portion whereof is also reproduced as below:- ' In my view the Civil Judge, Peshawar has passed the said order due to lack of knowledge on the subject. The definition of Financial Institution is laid down under section 2 of "Financial Institutions (Recovery of Finances) Ordinance, 2001 and not in section 7, subsection (4) of the said Ordinance as mentioned by the Civil Judge in her order dated 19-2-2004. In my view the Stock Exchange does not fall within the definition contained under section 2, clause (a), sub-clauses (i), (ii) and
(iii) of the "Financial Institutions (Recovery of Finances) Ordinance, 2001. Moreover the Banking Courts under the said Ordinance are dealing to resolve disputes between the Financial Institutions which transacts the business of Banking and the customers to whom a finance has been extended by such Financial Institution. In the present case the defendant/Stock Exchange has extended no finance to the plaintiff but contrary to this the plaintiff has invested an amount Rs,310000/- with the defendant/Stock Exchange. In such state of affairs, the jurisdiction of the Banking Court to resolve the present dispute is ousted.
' Consequently, the suit is hereby returned to the plaintiff for its presentation before the proper forum. All the relevant record be returned forthwith to the plaintiff after getting photocopies of the same from him. No order as to costs. The present file be consigned to record room after its necessary completion."
7. A look at the above said order would reveal that the petitioner lc has been knocked down on mere technicalities. The perusal of impugned orders would further reveal that delay in filing of suits after its return was given much weight by the Courts below but the important aspect which went unnoticed that the petitioner acted in good faith by complying with the orders of Court. No doubt, against the order under Rule 10 of Order VII of C.P.C., he could have filed appeal but instead of challenging the same, he acted in accordance with the directions of the Court. His first plaint was returned by the Civil Court on 19-2-2004 after more than nine months. Similarly, the Banking Court again took about eight months to decide the question of jurisdiction and he was once again referred back to submit himself to the jurisdiction of civil court and he, accordingly, once again; approached the civil court and that too, on the directions of Banking Court. The question requiring consideration before this court would be whether the petitioner by filing his claim initially in the civil court, then in Banking Court and again in civil court has not acted in good faith and with due diligence.
8. The perusal of the entire record would make it clear, that the petitioner to seek his remedy, has acted in good faith and was pursuing his case with due diligence. When this is the situation, then the petitioner cannot be refused benefit of section 14 of the Act of 1908. Object behind the provision of section 14 of the Act IX of 1908 is to protect a litigant against bar of limitation who is pursuing his case bonafidely and in good faith but was unable to get his case decided on merits on account of defect in jurisdiction of Court or any other cause of alike nature. Reference in this regard could be made to the case of Mst. Anwar Bibi v. Abdul Hamid (2002 SCMR 144). He deserves the benefit of condonation of delay in the circumstances of the case specially when the properly instituted suit of the petitioner was kept pending before the civil Court and then Banking Court for more than 16/17 months. Such a delay in no terms can be attributed to the petitioner. He complied with the orders of the Court within reasonable time. The argument of the learned counsel for the respondents that the petitioner filed the suit in Banking Court with a delay of 42 days and after return of the same by the Banking Court, present suit was filed after 17 days would have no substance when his suits remained pending for about one and a half year. The argument of the learned counsel for respondents that fresh and amended plaint cannot be presented in the Court and it is the original returned plaint which requires to be presented, is misconceived as there is no such legal compulsion provided in the relevant law. It can be accordingly amended for presentation of the same in the court of competent jurisdiction. Any such part/portion can be deleted/removed which made it outside the jurisdiction of the court which returned the same. Yes, the returned plaint can well be annexed with the newly filed plaint just to reflect his good faith and due diligence for claiming benefit under the law of limitation. If after return of plaint, the plaintiff has a sufficient time prescribed under the law of limitation, then in that case, there is no need to annex the returned plaint as the same is not the requirement of law as discussed above. Filing of fresh plaint and non- filing of previous plaint at the most could be held as a technicality which cannot be allowed to hinder and get in the way of dispensation of justice. Reliance in this regard can be placed on Mst.
Hawabai and 6 others v. Abdus Shakoor and 8 others (PLD 1981 Karachi 277).
' So, the question of jurisdiction of the Court between the parties is hereby settled. Let the trial Court proceed with the case and decide the case on merits.
9. The case-law referred to by the learned counsel for the respondents is distinguishable and cannot be made applicable in the facts and circumstances of the present case. The right of the petitioner cannot be left to suffer because of technicalities and act of Court. It is the settled principle of Mw that the act of Court shall prejudice no man. (Actus curiae neminem gravabit) as was deliberated and held by the apex Court in the case of Sajawal Khan v. Wali Muhammad and others (2002 SCMR 134).
10. For what has been discussed above, this revision petition is allowed, the judgment/orders of the Courts below are hereby set aside and the case is remanded back to the Court of Senior Civil Judge, Peshawar with the direction that suit of the plaintiff he decided on merits in accordance with law as early as possible but not later than four months as the parties are in litigation since May, 2003. No orders as to costs.