Ali Akbar Qureshi, J:- This Regular Second Appeal calls in question the validity of judgment and decree dated 21.06.2003 and 06.10.1987, whereby the learned courts below allowed an application under Order 7 rule 11 CPC and rejected the plaint, being barred by time.
2. Shortly, the facts for the disposal of this appeal are, that the appellant instituted a suit for recovery of sum of Rs.3,33,543/99 against the respondent, on the ground, that the Federal Government acquired a project, wherein the petitioner had 85112 shares and it was agreed, that the certificate of entitlement to compensation of the aforesaid amount of the shares will be given.
Subsequently, it was agreed, that Rs.600,000/- would be adjusted at the cost of the transformers against the amount due from the respondent to the appellant, whereas remaining amount of Rs.3,33,543.99 would be adjusted against the certificate of entitlement to compensation. Neither the certificate nor the amount was paid, therefore, the appellant filed a suit before the learned Civil Court at Lahore in the year 1975, as the Head Office of respondent-department was situated in Lahore and other transactions were also took place at Lahore. The respondent while filing the written statement of the suit, taken a specific objection regarding the jurisdiction of the Civil Court at Lahore which was contested by the appellant and finally, on 12.08.1986, the plaint was returned to the appellant under Order 7 rule 10 CPC for its presentation before the court of competent jurisdiction. The appellant, after receiving the plaint, presented the same in the Civil Court, Multan, on 19.02.1986. At this stage, the respondent filed an application under Order 7 rule 11 CPC on the ground, that the suit filed by the appellant was hopelessly barred by time. The application was contested by the appellant. Finally, the application was allowed and the plaint of the appellant was rejected under Order 7 rule 11 CPC being barred by time.
Being dissatisfied of the judgment and decree, the appellant filed an appeal which too was dismissed by the learned Addl. District Judge, Multan.
3. Learned counsel for the appellant argued the case mainly on the ground, that the appellant in good faith, filed the suit in the Civil Court, Lahore, as the cause of action also arose at Lahore and the moment, the plaint was returned by the leaner Civil Court, Lahore, the same was presented in the Civil Court, Multan, within seven days. Learned counsel further submits, that there is no mala fide on the part of the appellant, therefore, the appellant cannot be held responsible for filing the case in the Civil Court, Lahore. Reliance is placed on Mst. Anwar Bibi and others v. Abdul Hameed (2002 SCMR 144), Princess Zohra Bakhte v. Shaukat Ali Khan and another (1988 CLC 332), Trustees of the Port of Karachi v. Messrs Fatima Sugar Mills Ltd. and 2 others (PLD 2011 Karachi 426).
4. Conversely, learned counsel for the respondent submitted, that the suit filed by the appellant in the Civil Court, Multan, is hopelessly barred by time, therefore, the learned trial court as well as the learned appellate court rightly rejected the plaint under Order 7 rule 11 CPC. Reliance is placed on Mst. Khadija Begum and 2 others v. Mst. Yasmeen and 4 others (PLD 2001 Supreme Court 355).
5. As evident from the findings of the learned courts below, the appellant mainly has been non- suited on the ground, that the appellant did not act in good faith and failed to perform his duty with due diligence, utmost care and caution while pursuing the case. Although the learned appellate court while recording the findings, has referred the instances and the law declared by the Hon'ble Courts but has not taken care of the important facts, that the respondent, at the time of filing the written statement, had taken a specific preliminary objection regarding the jurisdiction of the court but the learned trial court, who was under legal obligation to decide the question of jurisdiction at first, took eleven years to decide the question of jurisdiction of the court. It is the primary duty of every court, as observed by the Hon'ble Supreme Court of Pakistan many a times, that the court should first assume the jurisdiction before proceeding further with the case. It is also pertinent to mention here, that the appellant contested the objection taken by the respondent regarding the jurisdiction of the court and the same was decided by the learned Civil Court, Lahore, whereby finally the plaint was returned to the appellant.
6. The learned appellate court has mainly decided, as observed earlier, on the ground, that the appellant did not act in good faith and with due diligence, therefore, is not entitled for any relief.
Needless to mention, that the good faith, due diligence and utmost care and caution are mix question of facts and law and can only be decided by recording the evidence, whereas in this case, no such exercise has been done by the courts below. As regard the exclusion of time of proceedings, bona fide consumed in court having no jurisdiction can only be proved through actions, the Hon'ble Supreme Court of Pakistan has observed in a judgment cited as Mst. Anwar Bibi and others v. Abdul Hameed (2002 SCMR 144), the relevant esteemed observation deals with the matter of the Hon'ble Supreme Court of Pakistan on this issue is as under: "Section 14 of Limitation Act applied to a case where the Court by its own order has terminated the suit or proceedings on the ground that it has no jurisdiction to entertain it or that there is some other cause of like nature which makes it impossible for the Court to entertain it. The object behind is the protection against the bar of limitation of party bona fide pursuing his case and seeking adjudication on merits but nevertheless prevented from getting decision on merits on account of defect of jurisdiction or other cause of like nature."
7. In another judgment cited as Princess Zohra Bakhte v. Shaukat Ali Khan and another (1988 CLC 332,) it is ruled by the learned Sindh High Court, that the filing of the plaint before a court of competent jurisdiction, would be continuity of the previous suit: "10. It may also not be out of place to mention here that the plaint that was filed before the First Class Court was returned by the order of this Court to the plaintiff for presentation to proper Court under Order VII, Rule 10, C.P.C. The plaintiff presented that plaint alongwith another newly-drafted plaint and the balance of court-fee which he was required to pay in this Court only after two days of its return to him. The said presentation of the said plaint in these circumstances cannot be said to be filing of a new suit. It will have to be treated as a continuity of the previous suit. The time taken by the plaintiff in that Court will have to be excluded but even if the said time is not excluded it would not make any difference for the reasons already shown by me."
8. In another judgment titled Trustees of the Port of Karachi v. Messrs Fatima Sugar Mills Ltd. and 2 others (PLD 2011 Karachi 426), the question of bona fide proceedings has been discussed and in view of the principle laid down by the Hon'ble Courts and even otherwise it appears from the record, that there is no mala fide on the part of the appellant and further it was otherwise duty of the learned courts below and particularly the learned trial court to record the evidence to decide the question of bona fide proceedings/mala fide proceedings, good faith, due care and diligence.
The learned counsel for the respondent has relied upon Mst. Khadija Begum and 2 others v. Mst.
Yasmeen and 4 others (PLD 2001 Supreme Court 355). But the facts of the case are quite distinguishable as in this case, there appears no mala fide on the record which can be attributed to the appellant. As regard the concurrent findings argued by the learned counsel for the respondent, the Hon'ble Supreme Court of Pakistan in plethora of judgments has observed, that if the concurrent findings are result of misreading and non-reading of evidence or jurisdictional defect, those can be corrected while exercising the revisional jurisdiction. The latest judgment on this point is Muhammad Nawaz alias Nawaza and others v. Member Judicial, Board of Revenue and others (2014 SCMR 914) wherein the Hon'ble Supreme Court of Pakistan, has laid down the principle to interfere with the concurrent findings of facts recorded by the forums below. The relevant portion of the judgment is reproduced as under: "The argument that when all the fora functioning in the revenue hierarchy concurrently held that the appellants were occupying the land in dispute in their capacity as tenants, such finding being one of fact could not have been interfered with by the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, has not impressed us as a finding does not become sacrosanct because it is concurrent. It becomes sacrosanct only if it is based on proper appraisal of evidence. The finding of the fora functioning in the revenue hierarchy despite being concurrent was not based on proper appraisal of evidence and due application of law, therefore, the High Court was well within its jurisdiction to interfere therewith. For the very condition for conferment of jurisdiction on a Court of law is to render a finding on proper appraisal of evidence and due application of law. If and when it would do otherwise, it would go outside its jurisdiction. Such order can well be quashed in exercise of Constitutional jurisdiction of the High Court."
9. Resultantly, the judgment and decrees passed by learned courts below are set aside, the case is remanded to the learned trial court to decide the same afresh after framing issues and recording the evidence of the parties. No order as to cost.