1. ' MUSHIR ALAM, C.J.---The petitioner has impugned the order dated 5-1-2011 passed by learned IIIrd Sr. Civil Judge Karachi (East), in Suit No,250 of 2003 as nullity having no such legal effect, wherein the plaint was rejected under clause (4) of Rule 11 of Order VII C.P.C. With no order as to costs and so also has challenged the administrative order dated 9-5-2008 passed by learned District Judge (Malir) Karachi, in reference dated 8-5-2008 available at page 129 of the file as nullity having no legal effect.
2. ' On 5-9-2012 this Court put learned counsel on notice that if he is not able to satisfy the Court as to the maintainability of the petition, he will be personally liable to pay cost. It was so ordered as the proceedings ere filed on his advice and apparently not on the instructions of the petitioner, being legal issue.
3. ' It was contended by the learned counsel for the petitioner that originally Suit No,733 of 1993 was filed in the High Court on 8-2-1993. Issues were framed on 17-8-1998. However, since pecuniary jurisdiction of the Court revised on the statement of the plaintiff dated 24-10-2007 (at page 123).
4. The suit was transferred to a Court falling in jurisdiction of District Malir, whereas claim in suit fell within the territorial jurisdiction of. District East. It is stated that at the motion of plaintiff learned Trial Court moved a reference to learned District Judge. On reference learned District on administrative side observed that the procedure is provided under Order VII Rule 10 C.P.C. For return of the plaint for its presentation before the Court having jurisdiction. Consequently on his statement having been made, the plaint was returned under Order VII Rule 10, C.P.C. On 21-12-2009. The Trial Court in consideration of the fact that once the plaint has been returned and it is presented to a Court having jurisdiction, it is not a continuation of the proceeding but it is treated as a fresh presentation and consequently in terms of section 3 of the Limitation Act, proceeded to examine the limitation and dismissed the suit as barred by time vide impugned order dated 5-1-2011.
5. ' Contention of learned counsel, that representation of plaint after return in terms of Order VII, Rule 10, C.P.C. And transfer of suit in terms of section 24, C.P.C. Are one and the same is not correct. It may be observed that consequence of return of the plaint in terms of Order VII, Rule 10, C.P.C. And transfer of suit under section 24, C.P.C. Are entirely different, where the plaint is returned under Order VII, Rule 10, C.P.C. On its representation to a Court of competent jurisdiction for all intent and purpose it is treated as a fresh institution, limitation would be computed from the day of representation of plaint in the Court, whereas consequent upon transfer of suit or proceeding from one Court to another in exercise of power under section 24, C.P.C. Is that the proceedings are deemed to be continued from the day when it is originally presented and not from the moment it stand transferred or proceeded by the transferee Court.
6. ' Another difference is, wherein a plaint is returned as in present case, it is only the plaint in suit is returned and not the written statement and or other proceedings that took placed prior to return of plaint, which are neither returned nor transferred and on representation of plaint in the Court of competent jurisdiction de novo proceedings commence; whereas/on transfer of suit/proceeding, entire proceedings are transferred and transferee Court continues the proceeding in suit from the stage it was transferred. The remedy available to the plaintiff was either to apply for the transfer of the case if it was within the jurisdiction of the same district before District Court or where the proceedings are pending in one district and are intended to be transferred to another district, then the jurisdiction to transfer vest in the High Court to entertain such application for the transfer. Such course was not adopted, on the contrary the plaintiff adopted the course, which entailed its own consequence and none else but learned counsel for the plaintiff is responsible. Another course open to plaintiff was to have invoked provisions of section 14 of the Limitation Act, to have sought condo nation of delay in pursuing the remedy before wrong forum; which also regretfully the learned counsel did not resorted, therefore, the petitioner even could have challenged the order passed by learned Trial Court in exercise of power under Order VII Rule 10 C.P.C. Before the Revisional Court and instead he chosen to approach this Court that is also much after limitation.
7. Therefore, petition is dismissed with cost. Taking a lenient view cost in the sum of Rs,10,000 is imposed on learned counsel to be deposited in the High Court Bar for pro bono litigation.