1. MRS. QAISAR IQBAL, J. --- This IInd Appeal is directed against the judgment dated 20.5.2006 passed by IVth Additional District Judge (East), Karachi in Civil Appeal No. 119/2005, whereby the appeal filed by the respondent No. 1 was allowed and the judgment passed by the Senior Civil Judge in Civil Suit No. 514/2002 decreeing the appellant's suit as against the respondent No. 1 was dismissed.
2. Succinctly the facts leading to the case are that the appellant since 1981, was working as Assistant Secretary to the Sindh Workers Welfare Board (hereinafter refer as the Board) i.e. Respondent No. 3.
3. The Secretary of the Board was being appointed on deputation basis from the Labour Department of Government of Sindh. However, after imposition of ban by the Federal Government, the appellant was assigned additional charge of Secretary on 12.6.1997 and thereafter was confirmed a permanent Secretary of the Board on 12.7.1997. Appellant worked as Secretary to the Board uptill 2000 under the control of the Director Labour (A&F). However, when the post of Secretary was reactivated, she was demoted to BPS-17 and was forced to work as lady instructor. However, the appellant did not accepted the said demotion and challenged the demotion order before Federal Service Tribunal vide Appeal No. 478/99 which is still pending. On demotion of appellant, one Mr. Salahuddin Mughal was appointed as Secretary to the Board, on deputation at ad hoc basis.
4. Soon after taking over charges as Secretary by breaking open the lock, Salahuddin Mughal became the blue eye person for the then Secretary Labour. Mere-reversion of appellant was not a sufficient for acrimonious satisfaction for the officials of the Board and Labour Department, they planned permanent elimination of appellant from the service of the Board and firstly they started a campaign of constant harassm ent of. The appellant by issuing illegal explanation letters through the Section Officers of the Labour Department, complaints to Anti-Corruption Department, Government of Sindh. Letter to the high officials, while falsely imputing and uttering fabricated charges including illegal allotment of plots. Even, the then Secretary Labour issued a show-cause notice for taking disciplinary action against the appellant for dismissal from service.
5. Appellant was being victimized and exposed to administrative tyranny for the period when she performed duties as Secretary in BPS-18, that too under the direct control/supervision of Director (A&F). She was made scapegoat/discriminated and was being terrified to the ulterior objective that either the appellant should reign or be dismissed from the services of the Board so that the post of the Secretary should become vacant and be filled-up through deputation/illegal posting by the Officials of the Labour Directorate to the prejudice of service right of appellant.
6. Appellant was never officially communicated to participate in the inquiry proceedings despite of communication address furnish by the applicant, as such no statement of the appellant was recorded by the Inspection Team.
7. The respondents Nos. 1 and 2 are the land grabbers mafia of Korangi, they in active connivance of the Officials of the Board, in the year 2001-2002, firstly committed forgery of the allotment letters, coined the Official Seal of the Board, used it on frged documents for the purpose of illegal sale of un-aliotted plots, to cover their illegalities, planned a complaint against Mr. Salahuddin Mughal, and got referred the same to the Governor's Inspection, Enquiries and Implementation Team. The Governor's Inspection Team finalized the ex parte report on the basis of the Complaint Team finalized the ex parte report on the basis of the complaint made by the respondents Nos. 1 and 2 in which appellant was falsely implicated in the scam of forged allotment in the Board: So-called report prepared by the Governor's Inspection is based on the false statements given in absence of the appellant by the respondents before Mr. Ikhlaq Ahmed, one 'of the Member of Governor's Investigation, Enquiries and Implementation Team. The respondent Nos. 1 and 2 have done so with ulterior motive to retain ill-gotten money which these respondents grabbed from innocent citizen by committing acts of forgery of allotment letters and power-of-attorney and other documents of the Board.
8. Apart from above false implication to achieve the ulterior design, the respondent defamed the appellant and scandalize the fabricated story in the press, which has come to the knowledge of every citizen of the city. The applicant, before registration of formal F.I.R., filed Civil Suit No. 514/2002 against the respondents Nos. 1 and 2 on the basis of their false and implicating statement before Inspection Team, seeking following relief:--
(a) To declare that the defendants are involved in the illegal sale of plots of the Board through fake documents and in order to cover their illegal gains with mala fide intentions have implicated the plaintiff.
(b) To pass a money decree in favour of plaintiff against the defendants for an amount of Rs. 2.5 million (i.e. Rupees twenty five Iacs).
(c) Grant any other appropriate additional relief to the plaintiff, which under the facts of the case will serve the purpose of proper administration of justice.
9. After service of summons, the respondents Nos. 1 and 2 filed their written statements. On the basis of the pleadings, the Trial Court framed following issues:-- "(1) Whether no cause of action was accrued to the plaintiff to file instant suit against defendants?
(2) Whether the Court got no jurisdiction to proceed with the matter?
(3) Whether officers of the Board mala fidley deprived to be promoted or posted as Secretary to the Board?
(4) Whether by any act the defendant has caused any damages to the person of the plaintiff as such are liable to pay damages to the tune of Rs. 2.5 million?
(5) Whether the plaintiff is entitled to the relief as prayed for?"
10. Mr. Siddiq Mirza learned counsel for appellant has raised following points in support of the appeal:- -
(1) First Appellate Court did not consider the point of limitation as appeal was hopelessly time- barred, as Court-fee was not paid within the time prescribed under the law.
(2) Without recording any reasoning on the ground of maintainability of the suit the First Appellate Court has proceeded to dismiss the suit.
(3) impugned judgment is based upon the reading of the evidence adduced by the parties, therefore, not sustainable in law.
11. Adverting to the first contention of Mr. Siddiq Mirza, it was legal obligation of the respondent No. 1 to pay the Court-fee in the first Appellate Court, Section 149, CPC has been applied time and again, numerous opportunities were afforded to defaulting parts to pay the Court-fee even than the orders were not complied with so much so the appeal was dismissed for non-prosecution alongwith application for payment of Court-fee on 26.2.2005, an application for restoration was filed, the suit was restored almost six months of the above order on the same day the Court-fee paid by the respondent No. 1. In this context reliance has been placed in the case of Muhammad Siddiq Khan Vs. Abdul Shakoor Khan (PLD 1984 SC 289), Muhammad Boota Vs. Farzand Ali (1980 CLC 1124). In case of Executive. Engineer Vs. Muhammad Nawaz Khan and Company (PLD 1994 SC AJ&K 32) while dealing with the same objection it has been held that there are two views on the question whether limitation for filing a suit or appeal has any nexus for making a Court-fee. The view of Hon'ble Supreme Court of Pakistan is that bar of limitation is not a factor in context of the failure of a party to supply proper Court-fee under the Court-Fees Act and Section 149 and Order VII, Rule 11 of the Code of Civil Procedure. The august Court in Muhammad Rafiq's case cited supra has observed as under:- "Section 149, CPC has no reference to the explanation of time for payment of Court-fee. It only refers to the permission to pay the Court-fee which could be paid at any stage on the basis of the exercise of discretion vested by the section. If payment of Court-fee is made as a consequence of the permission granted by the Court on the memo. Of appeal it would have the same force and effect as if such Court-fee was paid at the time of filing of the appeal."
12. It is well-settled law that mere poverty or ignorance or inability to pay full Court-fee at time of presentation of a suit or appeal is not a ground for seeking indulgence of the Court under Section 149, CPC. The appeal before the first Appellate Court was filed, alongwith an application under Section 149, CPC for extension of time for payment of Court-fee which was granted time and again suit the suit was dismissed in default and was restored after six months, with the revival of the suit the application under Section 149, CPC was also allowed and the fee if so paid by the respondent No. 1 on the same day. In the circumstances of the case the respondent No. 1 was not only neglected but his conduct was contumacious and there existed no reason to show any indulgence to him for payment of Court-fee on the memo. Of the appeal after the expiry period of limitation. It is an admitted fact that the appeal remained dormant for a period of six months until it was restored to its original position. The learned Trial Court condoned the delay recklessly exercised the discretion without taking into consideration the provisions of Limitation Act without applying its mind carefully, negligence or mala fides on the part of the respondent No. 1 and indulgence ought not to have been shown. In support of the above contention reliance is placed in the following case-law:--
(1) State Life Insurance Corporation of Pakistan Vs. M/s. Zainab Khatoon and 5 others (1997 PLC 489).
(2) Assistant Commissioner and Land Acquisition Collector, Badin Vs. Haji Abdul Shakoor and others (1997 SCMR 919).
(3) H. Feldman Vs. Province of East Bengal (PLD 1970 Karachi 295).
(4) Almas Ahmed Faiz Vs. Secretary Government of Punjab Housing and Physical Planning Development, Lahore (2006 &OMR 783).
13. The rule enunciated in the above authorities has clearly laid down that explanation in terms of Section 149, CPC cannot be allowed to be condoned after the expiry of the period of limitation, condonation of the delay to pay the Court-fee after the expiry of the period of limitation' tantamount to destroy the provision of limitation and for keeping the parlance between the two statements, the discretion ought to have not been exercised without independent application of the amount more particularly when the respondent No. 1 was guilty of contumacious conduct based upon negligence and male fides therefore the respondent No. 1 was required to pay Court- fee before the first Appellate Court within the limitation provided under the law as such the impugned judgment is not sustainable in law.
14. Adverting to the merit of the case the appellant was charged in misappropriation and allowed Industrial Plots meant for Industrial Worker, one false complaint was made by one Muhammad Akram thereafter appellant filed suit for cancellation the document No. 1115/95 which was decreed.
15. The respondent resident of Korangi area became inimical and a complaint was lodged by Khurshid Labour Leader against illegal allotment of the plots by the then Secretary. The inquiry was held statement of the respondent No. 1 was recorded by the Inquiry Officer, during the period of inquiry the appellant was posted in the Board as Secretary as she was intentionally involved in the matter of illegal allotment of the plots. The respondent No 2 levelled false allegations against the appellant in the inquiry exhibit P/17 as well as in exhibit P/19 the appellant's allegations were levelled to involve the appellant in illegal sale and purchase of the plots of the Board. The statement of the appellant has gone unchallenged and unrebutted before the Trial Court. So far as the quantum for damages is concerned the same properly determined by the Trial Court the appellant has suffered the agony of torture and malicious transaction in the litigation launched against her before the Anti-Corruption Court Provincial, Karachi culminating in her acquittal. In view of what has been discussed above, I am of the view that the impugned judgment is not sustainable in law, which is hereby set aside and the judgment and decree recorded by the Trial Court as against the respondent No. 1 is hereby maintained. The respondent No. 2 was proceeded ex parte, the judgment passed by the Trial Court as against him was not assailed before first Appellate Court, the judgment of the Trial Court. With the above observations IInd Appeal No. 36/2006 stands allowed in above terms with cost. .