' MUHAMMAD TARIQ ABBASI, J. --- This revision petition is directed against the judgment and decree dated 12.6.2012 passed by the learned Additional District Judge, Taxila, District Rawalpindi, whereby the appeal filed against the judgment and decree dated 31.1.2011, made by the learned Trial Court has been dismissed, on the point of limitation.
2. The facts in short are that the respondents No, 1 & 2 filed a suit for possession through partition, against the present petitioners and the respondents No, 3 to 5. In the said suit, the preliminary decree was passed and on the basis of the report made by the local Commission, which was objected by the present petitioners, but ruled out, the final decree was made on 31.1.2011. Against the said decree, the petitioners preferred R.F.A. No, 82/2011, before this Court. An objection was raised by the respondents No, 1 & 2 that the appeal was not proceedable before this Court, rather acceptable before the learned District Court concerned. Consequently, the appeal through order dated 5.7.2011, passed by the learned Division Bench of this Court was sent to the learned District Judge, Rawalpindi for adjudication on merit. Accordingly, the Deputy Registrar (Judicial) of this Court through letter dated 12.7.2011 had sent the file of the appeal to the learned District Judge, Rawalpindi, from where it was entrusted to the learned Additional District Judge, Taxila. The proceedings in the matter were carried on by the learned Additional District Judge, Taxila and finally the judgment and decree dated 12.6,2012 was pronounced, whereby the appeal was dismissed on the sole ground and reason that it was time-barred.
3. Consequently, the instant revision petition has been preferred, with the contentions and the grounds that the regular first appeal was filed before this Court on the basis of the report made by the local Commission, whereby the value of the property in issue was determined as Rs, 3,17,50,000 being Rs, 50,000/- per Marla, hence was beyond the pecuniary jurisdiction of the District. Court concerned; that through order dated 5.7.2011, the appeal was sent by this Court to the learned District Judge, Rawalpindi and as such the period of limitation was to be considered regarding filing of the appeal before this Court and not the District Court; that the learned Appellate Court without considering the attending facts and circumstances and the, law on the subject has knocked out the petitioners from their valuable rights purely on technical grounds, hence the impugned judgment and decree is not sustainable in the eye of law.
4. The learned counsel for the petitioners has advanced his arguments in the above-mentioned lines, whereas the learned counsel, who has put appearance on behalf of respondents No, 1 & 2 has seriously opposed the revision petition, while supporting the impugned judgment and decree to be quite in accordance with law.
5. Arguments of both the sides have been heard and the record has been perused.
6. As stated above, the petitioners had challenged the judgment and decree dated 31.1.2011, passed by the learned Trial Court before shape of R.F.A. No, 82/2011, with the contention that in the light of the report made by the local Commission, value of the property in issue, was exceeding the pecuniary jurisdiction of the District Court.
7. As highlighted above, from the respondents' side an objection was raised, towards maintainability of the Regular First Appeal before this Court, which was upheld through order dated 5.7.2011. Consequently, the learned Division Bench of this Court had sent the appeal to the learned District Judge, Rawalpindi for adjudication on merits. Accordingly, the Deputy Registrar (Judicial) of this Court through letter No, 18310/Civil, dated 12.7.2011 had transmitted the record of the RFA to the learned District Judge, Rawalpindi, from where it was entrusted to the learned Additional District Judge, Taxila.
8. For filing R.F.A. Before this Court, the law prescribed a period of 90 days, whereas for filing an appeal before the District Courts, 30 days' period has been allowed by the law.
9. It has been observed that the appeal before this Court was filed within the above-mentioned prescribed period of 90 days.
' The learned Additional District Judge, Taxila has dismissed the .Appeal, which was transmitted by this Court to him, purely on the basis of limitation, with the contention that even in case of transfer of the appeal, the prescribed period of limitation was 30 days. There is a difference between the return of plaintas provided under Order VII, rule 10 of C.P.C. And transfer of a case as provided under Section 24 of the procedure. For convenience, both the provisions are reproduced herein below:--- ' Order 7, Rule 10, C. P. C.
' Return of plaint.-- (1) The plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.
' Procedure on returning plaint.-- (2) On returning a plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.
' Section 24, C.P. C.
' General power of transfer and withdrawal.-- (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage:---
(a) transfer any suit, appeal or other proceeding pending in any Court subordinate to it and competent to try or dispose of the same, or
(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and try or dispose of the same; or
(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or NO re-transfer the same for trial or disposal to the Court from which it was withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which thereafter tries such suit may, subject to any special directions in the case of any order of transfer, either re-try it or proceed from the point at which it was transferred or withdrawn.
(3) For the purposes of this Section, Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court.
(4) The Court trying any suit transferred or withdrawn under this Section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.
12. No doubt if a plaint/appeal is returned under the above-mentioned provision and the concerned fails to justify the filing of the plaint/appeal, before a wrong forum, then the period provided under Article 14 of the Limitation Act, 1908 shall not be excluded, from the period of limitation. But as per the above-mentioned Section 24, in case of transfer of a matter, unless, otherwise directed, the matter will proceed from the point at which it was transferred.
13. In ,the situation in hand, as stated above, the appeal was not returned by this Court, to the petitioners or its presentation before the proper forum, rather it was sent/remitted/transferred to the concerned learned District Court, and when filing of the appeal before this Court was within time, the learned District Court was obliged to proceed with the appeal, from the point it was sent to it and decide the same on merits.
14. If due to wrong advice or lack of knowledge, the petitioners have moved any application for condonation of delay, even then the learned Appellate Court should have realized the legal prosecution teat the appeal before this forum was filed within time and on its transfer, it has not become time-barred, and should have not decided the application for condonation of delay, the manner it has been decided.
15. For what has been discussed above, the revision petition' in hand is accepted, the impugned judgment and decree dated 12.6.2012 passed by the learned Additional District Judge, Taxila is set aside, with a direction to take up the appeal, hear both the parties and decide it on merits. Civil revision .