' AMIN-UD-DIN KHAN, J.---This appeal has been filed against the order dated 12-10-2011, passed by the learned Senior Civil Judge, Sialkot, whereby application filed by the appellant/ defendant for setting aside ex parte decree was dismissed. In appeal also the ex parte judgment and decree dated 9-4-2010, and order dated 20-1-2010, for ex parte proceedings have been challenged.
2. Brief facts of the case are that the respondent/plaintiff filed a suit for specific performance with regard to the suit land on 28-7-2005. The defendant/appellant was served. She filed written statement on 15-11-2005. On 2-1-2010, due to non-appearance of any one on behalf of the defendant ex parte proceedings were ordered against the defendant/ appellant and vide judgment and decree dated 9-4-2010, the suit was ex parte decreed but the appellant/defendant on 3-2-2011, filed an application for setting aside the ex parte judgment. And decree as well as ex parte proceedings order. Reply was filed. The learned trial Court after hearing both the parties dismissed the application vide order dated 12-10-2011. Against the said order appellant filed revision petition before the learned District Judge, which was accepted vide judgment dated 17-5- 2012. Plaintiff/respondent challenged the order dated 17-5-2012, passed by the learned Additional District Judge through W.P. No,14018 of 2012, mainly on the ground that the pecuniary jurisdictional value of the suit was Rs,36,00,000, therefore, learned Additional District Judge was having no pecuniary jurisdiction to entertain and decide the revision petition. The writ petition was heard on 27-11-2012, by this Court, the same was allowed and judgment dated 17-5-2012, passed by the learned Additional District Judge was set aside and also on the basis of the arguments of the learned counsel for the parties it was held that the order passed by the learned trial Court is correct and in accordance with record of the case. Now through this appeal, which has been filed on 20-12-2012, the appellant/ defendant has challenged the order dated 12-10-2011, passed by the learned trial Court whereby application for setting aside the ex parte judgment and decree and ex parte order was dismissed. Along with the appeal C.M. No,1-C of 2013, under section 14 of the Limitation Act, 1908, for condonation of delay has been filed.
3. Learned counsel for the appellant argues that inadvertently the revision petition was filed against the order dated 12-10-2011, before the learned District Judge, who was not having the pecuniary jurisdiction, office of the learned District Judge was contributory to this negligence when no objection was raised and when the Court was not having jurisdiction the revision petition should have been returned forthwith, which was not done, therefore, when there is a contributory negligence on the part of the counsel and the Court the delay should be condoned in the interest of justice.
' When questioned to the learned counsel that if the delay between the filing of the revision petition as well as judgment dated 27-11-2012, when W.P. No,13150 of 2012, has been allowed is condoned then what is explanation with the learned counsel for condonation of delay from 28-11-2012 to 20- 12-2012, when the appeal has been filed before this Court, learned counsel is unable to explain the delay of each day. I have noticed that the same has been pleaded in his application for condonation of delay. When further questioned that when this Court while exercising constitutional jurisdiction has held that the order of the learned trial Court is in accordance with law how while hearing this appeal against the order of the learned trial Court, the order of this Court can be set aside which was passed while exercising constitutional jurisdiction, no response to this question.
4. On the other hand, learned counsel for the respondent has stated that against the order dated 27-11-2012, whereby W.P. No,13150 of 2012, has been accepted the appellant has challenged the same before the august Supreme Court of Pakistan through C.P.L.A. No,2280-L of 2012, which is still pending and appeal in hand is not maintainable.
5. I have heard the learned counsel for the parties and gone through the record. The appellant has not given any explanation with regard to the delay from 27-11-2012 to 20-12-2012. It was the duty of the appellant to explain delay of each day. The application is filed under section 14 of the Limitation Act, 1908, only. This provision of law is helpful with regard to the period when the proceedings were filed in a wrong forum. If it is liberally stretched the delay of filing the revision petition before the wrong forum till 27-11-2012, at the most can be condoned as on 27-11-2012, this Court clearly held that the Additional District Judge was not having pecuniary jurisdiction to entertain and try the revision petition. Furthermore, when the appeal was competent against the order passed by the learned trial Court revision petition was not competent and the appellant himself opted to file the revision petition and that too before the wrong forum. If the delay from the filing of the revision petition before the wrong forum and till the decision by this Court on 27-11-2012, be condoned the appellant was bound to explain the delay of each day from 28-11-2012 till the filing of this appeal on 20-12-2012. I have earlier noted that not a single word has been mentioned in the application and even no explanation has been forwarded during the arguments. In this view of the matter, when this Court while exercising constitutional jurisdiction has found that the order passed by the learned trial Court is in accordance with law and furthermore against the order of this Court a petition for leave to appeal has been filed before the august Supreme Court of Pakistan and no explanation for condonation of delay has been forwarded in this matter C.M. No,1-C of 2013, is not helpful to the appellant as with regard to the crucial period, i.e,28-11-2012 to 20-12-2012, as discussed above the delay cannot be condoned through the application under section 14 of the Limitation Act, 1908, therefore, this application as well as appeal are not maintainable and the same are dismissed.
6. When questioned to the learned counsel that why court fee of Rs,15,000 has been paid on this appeal when the appeal was against the order, the learned counsel states that the office of this Court raised an objection that court fee be paid, therefore, in order to save the time appellant opted to pay the court fee and not to contest the office objection, therefore, prays that the court fee be returned to the appellant. In this view of the matter, that is why court fee was not required to be affixed upon this appeal as the appeal is against the order, therefore, office is directed to return the court fee to the appellant in accordance with law.