' FAROOQ ALI CHANNA , J.---- Appellant Abdul Malik Awan, through this IInd appeal, has called in question the judgment and decree dated 21-7-2012 and 25-7-2012 respectively passed by learned IIIrd Additional District Judge, Karachi West (hereinafter referred to as the Appellate Court) dismissing the Civil Appeal No,267 of 2010, filed by the appellant assailing the judgment and decree dated 20-9-2010 passed by learned IInd Senior Civil Judge, Karachi West (herein after referred to as trial Court) decreeing the Civil Suit No,488 of 2009.
2. The facts giving rise to file this IInd Civil appeal are that the respondent filed Civil Suit No,488 of 2009 against the appellant for recovery of Rs,2,75,000 (Two lacs, seventy five thousand only) claiming that they both jointly had purchased a Plot No,A-1-5/9, Sector A-1, measuring 200 sq. Yds.
Along with building structure raised thereon situated in Qasba Township, Karachi, from Syed Muhammad Naseem under sale agreement dated 14-2-2007, later on by consent of all the parties the sale agreement was cancelled and another agreement dated 29-9-2007 was executed whereby the appellant delivered a post-dated Cheque NO. 4081763 of Rs,2,25,000 drawn from Soneri Bank to the respondent against his 50% payment to Syed Muhammad Naseem as token money. It was also agreed by the appellant that if the said postdated Cheque on presentation is not encashed, the appellant shall pay to respondent further Rs,50,000 as penalty. The respondent in his plaint has further claimed that the said post-dated cheque on presentation was dishonoured and the appellant despite the repeated requests of respondent did not honour his commitment for payments, therefore, the respondent filed the suit for recovery as referred to hereinabove.
3. The appellant, in pursuance of notice appeared before the trial Court, filed his written statement wherein he has not disputed the claim of respondent however, his stance was that after the post- dated Cheque was dishonoured, he has paid Rs,2,25,000 to the appellant by Pay Order bearing No,0000000833508 dated 7-12-2007 of Muslim Commercial Bank, Ibn-e-Sena Road, Karachi.
4. The trial Court after framing of issues, allowed the respondent to file his affidavit-in-evidence the appellant and his counsel after filing written statement chosen to remain absent, they despite several opportunities did not turn up to cross-examine the respondent, the appellant also did not appear before the, trial Court for recording his evidence, therefore, the trial Court closed his side and decreed the suit of respondent as per his prayer.
' The appellant assailed the judgment and decree, passed by the trial Court, in Appeal No, 267 of 2010. The appellate Court dismissed the appeal being hopelessly time barred by 66 days.
' Learned counsel for, the appellant in his arguments before this mainly has stressed upon the findings of the trial Court on Issue No,6 and has contended '''that the trial Court had framed the Issue No,6 regarding the receipt of Pay Order bearing No, 833508 dated 7-12-2007 of Rs,2,25,000 by the respondent from the appellant and answered the same in affirmative, yet, the trial Court decreed the suit contrary to its findings on Issue No,6. Learned Counsel has further contended that the appellant assailed the above judgment and decree in appeal, which the appellate Court dismissed on the technical ground that the appeal was time-barred. Per learned counsel the trial Court has passed the judgment and decree in absence of appellant whereas the appellate Court has dismissed his appeal on technical ground of limitation as such, the appellant has been deprived of a free and fair trial guaranteed by Article 10-A of the Constitution of Pakistan, 1973. In the circumstance, learned counsel requests that the impugned judgments of both the lower Courts may be set aside and case 'may be remanded to the trial Court by directing to provide an opportunity to the appellant to plead his case and. Thereafter decide the case strictly on merits in accordance with law.
5. Conversely, learned counsel for the respondent has contended that although the trial Court in its findings has answered the Issue No,6 in affirmative, however, while recording the reasons, the trial Court has held that the appellant has failed to discharge his burden to prove the Issue No,6. Per learned counsel word "Affirmative" in the findings appears to have been typed erroneously/mistakenly. Learned counsel has further contended that the appellant was not vigilant to take care of the matter which is evident from the findings of both courts below, the trial Court has observed that the appellant after filing the written statement choosen to remain absent, he also did not appear for recording his evidence, likewise, the appellant has observed his negligence in filing the appeal after 66 days of the appeal period, as such the Appellate Court has rightly dismissed the appeal being hopelessly time-barred.
' I have considered the arguments advanced by the learned counsel for the parties and perused the record.
6. The trial Court while deciding the Issue No,6 by keeping in view a number of citations referred to in the judgment has observed that the burden to prove this issue lies upon the defendant (appellant herein), who did not come in witness-box for recording his evidence his written statement cannot be treated as part of the evidence to support his contention. In the concluding para, the trial Court has specifically stated that the defendant/appellant has not proved his case.
The above observation clearly indicates that the trial Court has decided the Issue No,6 in negative, but, apparently, due to clerical/typographical mistake the word "Affirmative" was typed in the findings of the trial Court's judgment.
7. I have also gone through the judgment dated 21-7-2012 wherein the Appellate Court, has observed that the trial Court had passed the judgment and decree on 20-9-2010, the appellant had obtained the copies whereof on 26-11-2010 whereas he has filed the appeal on 24-12-2010 with delay of 66 days. Such delay, learned Counsel for the appellant during the course of arguments has failed to explain, the appellant had also not filed application under section 5 of the Limitation Act seeking the condonation of delay in filing the appeal. Accordingly, the appellate Court, besides considering the merits of the case by referring certain citations in its judgment, has dismissed the appeal being hopelessly time.
8. For the above reasons and discussion, there appears no illegality or infirmity of the judgments passed by both the Courts below. Besides, second appeal under section 100, C.P.C. Has a limited scope, it is to be filed on the following grounds:---
(a) the decision being contrary to law or usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the procedure provided by this Court or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.
The bare perusal of section 100, C.P.C. Manifest that it clearly bars second appeal on question of facts rather confines to the competency of High Court to deal with question of law and substantial errors or defects of procedure which causes or may result in miscarriage of justice.
9. The learned counsel for the appellant has failed to point out the violation of any law or substantial errors or defects in the decisions upon merits of both the Courts below for considering the second appeal. Accordingly, the appeal is dismissed.