MUHAMMAD ATHER SAEED, J. --- This civil appeal has been filed against the judgment of the learned Lahore High Court, Lahore dated 28.9.2006 in Civil Revision No. 140 of 2006 whereby the revision filed by present respondent against the judgment of the Civil Judge 1st Class, Lahore was allowed and the respondent's application for rejection of plaint under Order VII, Rule 11, CPC was accepted.
2. This appeal is barred by a period of 49 days and the application for condonation of delay has been filed.
3. We have heard Sh. Naveed Shahryar, learned ASC assisted by Ms. Najma Parveen, ASC for the appellants and Mr. Ejaz Feroze, learned ASC for respondent No. 1 whereas respondents No. 2 and 3 have been declared ex parte.
4. We first asked learned ASC for the appellants to argue on the condonation of delay application.
He submitted that he had filed civil petition for leave to appeal within the period of 60 days but the office had returned the civil petition for leave to appeal as it was not competent and in fact civil appeal was maintainable and therefore the instant civil appeal was filed. He submitted that appellants were of the bona fide belief that civil petition for leave to appeal was competent as in the earlier round of litigation between the same parties he had filed civil petition for leave to appeal in which leave had also been granted and no objection was raised. He relied on judgment of five members Bench of this Court in the case of Mst. Gul Jan and others v. Naik Muhammad and others reported as PLD 2012 SC 421 specifically relying in paragraph 9 of the judgment.
5. Learned ASC for respondent No. 1 submitted that ignorance of law is no excuse and therefore the ignorance of the learned counsel that civil petition for leave to appeal was to be filed and not civil appeal cannot be made basis of condonation of delay. He submitted that without prejudice to his above arguments, the appeal was filed after 49 days of the return of the civil petition for leave to appeal by the office and the appellants if acting bona fidely they should have filed the appeal immediately if objection had been raised. He submitted that law favours the vigilant and cannot be used to benefit the one sleeping over his right. Referring to the judgment relied on by the learned ASC for the appellants, he drew our attention to last few lines of paragraph 9 were this Court has observed that in the petition proceeding before the Court, the petitioner may apply for converting the petition filed under Article 185(3) on the Constitution to civil appeal filed under Article 185(2) of the Constitution or the relevant statute and may also apply for extension of time or condonation of delay in filing of such appeal and it shall then be for this Court to decide such application keeping in view the peculiar circumstances of each case. This case is distinguishable as it applies where civil petition for leave to appeal has been filed but in the present case civil petition for leave to appeal was not entertained and civil appeal was filed 49 days later. He therefore contended that the application for condonation of delay may be dismissed.
6. Having examined the contention of the learned ASCs we are of the opinion that appellants have not be able to make out a case for condonation of delay and the judgment relied on by them also does not support their case and he has not been able to satisfy us that why it took 49 days after the office objection has been raised to file civil appeal and we are of the opinion that this Court in its judgment relied on by the learned ASC has made it clear that it shall be decided keeping in view the peculiar circumstances of the case. So even on this point the application for fails and as a consequence to this disallowance the civil appeal should be dismissed.
7. We, therefore, decided to examine the merits of the case also and examine whether the learned ASC for the appellants could make out a case for interference on merits.
8. This case has a chequered history and this is second round of litigation, initially on the death of Dr. Ghulam Yaseen who had left behind number of properties, some properties out of which were in the name of present respondent, the present appellants filed an administration suit on 22.8.1977 which was decreed in favour of the appellants on 16.4.1983. An appeal was preferred by the present respondent against the above judgment and decree and this appeal was allowed and the decree of the Trial Court was amended on 12.11.1987. Against the above order of the Appellate Court a civil revision was filed before the learned Lahore High Court which was dismissed on 04.6.1998. This order was assailed in this Court through civil petition for leave to appeal and leave was granted on 01.12.1999. However, when the appeal came up for final hearing on 27.4.2005, the appellant's counsel sought permission for withdrawal of the appeal, which was allowed as follows:--- "Learned counsel for the appellants in Civil Appeal No. 1583/1999 stated that permission be accorded to him to withdraw the instant appeal as the appellants contemplate to file civil suit for redressal of their grievance. Other side has no objection. The appeal is accordingly dismissed as not pressed in view of the statement of the learned counsel for the appellants."
After the withdrawal of the appeal before this Court, the present appellants filed a suit for declaration before the Trial Court in which proceedings were initiated and during these proceedings an application was filed under Order VII, Rule 11, CPC by the present respondent for rejection of the plaint, inter alia, on the following grounds:- "That the suit is barred (i) by limitation; (ii) provision of Section 11, CPC, (i.e) provision of Section 12(2), CPC and (iv) provision of Order 23, Rules 1 & 2, CPC."
The learned Trial Court dismissed the application on 21.11.2005, which order was assailed before the learned Lahore High Court and the learned High Court by the impugned judgment allowed the revision, set aside the order of the Trial Court and accepted the application under Order XII, Rule 11, C.P.C.
9. Learned ASC for the appellants argued that the learned High Court fell in error when it held that the cause of action accrued to the appellants on 08.6.1977 when Dr. Ghulam Yasin whose properties were in dispute expired and therefore the present suit which was filed on 22.7.2005 is hopelessly barred by time. He submitted that the cause of action had accrued to the appellants on 27.4.2005 when their counsel withdrew the appeal filed before this Court and sought permission to file a suit for redressel of their grievance and the appeal was dismissed as not pressed in view of the statement of the learned counsel for the appellants. He submitted that he filed the new suit on the basis of permission granted by this Court and the limitation will run from the date when permission was granted. He further argued that his case is covered under Section 14 of the Limitation Act as he had exercised due diligence and good faith in pursuing his remedy before the wrong Court and therefore the period spent before wrong forum will be excluded from the period of computation of limitation and therefore the suit has been filed within time. He also submitted that limitation is a mixed question of law and fact and cannot be resolved without framing of issues and no such exercise was undertaken by the learned Lahore High 2014 Mrs. Akram Yaseen V. Asif Yaseen 671 (Muhammad Ather Saeed, J.) Cour,. He, therefore, prayed that the impugned order may be set aside and the order of the Trial Court be restored.
10. Learned ASC for the respondent vehemently opposed the arguments of the learned ASC for the appellant and supported the impugned judgment. He relied on a judgment of this Court in the case of Mst. Anwar Bibi and others v. Abdul Hameed reported as 2002 SCM R 144 where this Court has held that the provisions of Section 14, Limitation Act was not applicable in view of provision of Order XXII, Rule 2, CPC. He, therefore, prayed that the civil appeal may be dismissed.
11. We have examined the case in the light of the arguments of the learned ASC and have carefully perused the records of the case including the impugned judgments.
12. We have seen that in the first round of litigation the learned Additional District Judge vide his judgment dated 12.11.1987 allowed the appeal of the present respondent and held that ownership of properties cannot be determined in an administration suit and the Court has no jurisdiction to decide the ownership of properties in an administration suit. While dismissing the revision against this judgment the learned High Court vide its judgment dated 04.06.1998 also held that title of properties mentioned in the suit could not have been determined in the administration suit filed by the appellants. The appellants then filed civil petition for leave to appeal against this judgment in which leave was granted but when the appeal came up for hearing on 27.04.2005, the learned counsel for the appellants sought permission for withdrawal of the appeal to file present suit.
13. We will now examine whether the new suit fails within the ambit of Section 14 of the Limitation Act. Section 14 of the Limitation Act which is reproduced for the sake of convenience as under:- period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court first instance or in a Court of appeal, against the same party for the same relief shall be excluded, where such proceedings is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.
Explanation I.---In excluding the time during which a former suit or application was pending, the day on which that suit or application was instituted or made, and the day on which the proceedings therein ended, shall both be counted.
Explanation II.---For the purposes of this Section, a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding.
Explanation III.---For the purposes of this Section mis-joinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."
Sub-section (1) of Section 14 provides that if the litigant is prosecuting with due diligence and good faith in another civil proceeding, a Court which for the defect of jurisdiction or other cause of a like nature is unable to entertain it, then the period spent before wrong forum shall be excluded for the filing of fresh suit. The words which are important in the above Section are the words "with due diligence" and "good faith". Apparently the information that the Civil Court in an administration suit is not competent and lacks jurisdiction to determine the ownership of the properties in an administration suit came to knowledge of appellants for the first time on 12.11.1987 when the Appellate Court held that it was not possible in an administration suit to determine the ownership of properties but instead of abandoning these proceedings and filing a civil suit, the present appellants chose to file a civil revision before the learned Lahore High Court and then when the learned High Court vide judgment dated 04.6.1988 dismissed the revision on the same basis that it was not possible to determine the title of the properties in an administration suit, the appellants again approached the Court instead of filing a civil suit and finally withdrew it on 27.4.2005. We fully agree with the observations of the learned Lahore High Court that the appellants were not perusing the proceedings before the wrong forum with due diligence and good faith because even if law was examined in the light of the above judgment, the appellants would have abandoned the proceedings and filed a civil suit. Even if we very favourably consider as from which date the limitation will run for filing of civil suit than it will be from the date of the judgment of the learned Lahore High Court dated 04.6.1998 although we are of the definite view that time for filing civil suit will start running from 12.11.1987 when the Appellate Court allowed the appeal of the respondent. Even if the date of the judgment of the learned High Court is considered, the last date the civil suit could have been filed was 03.06.2004 and this suit was filed on 22.7.2005 which is much beyond the period of limitation and therefore the learned High Court has rightly held that the application under Order VII, Rule 11, CPC has to be accepted.
14. Another aspect of the Case is that Order XXIII, Rule 1, CPC provided for the filing of fresh suit with the permission of the Court. However, under Order XXIII, Rule 2, CPC, the plaintiff is bound by the law of limitation in the same manner as if the first suit, had not been instituted and the plain interpretation of this rule is that period of limitation would have started from 08.6.1977 i.e, the date when Dr. Ghulam Yasin expired. This principle at law has also been laid down by this Court in the case of Mst. Anwar Bibi (quoted supra), in this judgment this Court has held as under:- "Besides the first suit was withdrawn, under Rule 1 of Order XXIII, C.P.C., therefore, Section 14 of the Limitation Act was not applicable in view of the provisions of rule 2 of said Order which provides that in any fresh suit instituted on permission granted under rule 1 the plaintiff shall be bound by law of limitation in the same manner as if first suit has not been instituted."
We respectfully agree with the above judgment of this Court. We, therefore, are of the considered opinion that even on merits the present appellants have no case and the impugned judgment is unexceptionable and no interference is called from this Court.
15. As a result of the above discussion, this civil appeal is dismissed both on limitation and on merits. No order as to costs.