MUHAMMAD YOUNIS THAHEEM, J.--- Through this judgment this Court disposes of the Regular first Appeal No.5-3/2010 alongwith CM No.625 for condonation of delay against the judgment and decree dated 21.12.2009 of the learned trial court of Civil Judge-I Karak vide which Civil Suit No.211/1 of 2007 for recovery of Rs.15,29,000/- was dismissed.
2. Brief facts of the case arc that the present Appellant instituted a civil suit for the recovery Rs.15,29,000/- against present respondents according to averments of the plaint plaintiff/ appellant was the owner of Datsun SSRX vehicle bearing Registration No.DR-9265 which was rented out to some company on monthly rent @ of Rs.39000/- and respondent/defendant No.2 was driver and the plaintiff/appellant was informed that above said vehicle alongwith documents has been snatched from him. Afterward it came to knowledge of plaintiff/appellant that his driver/respondent No.2 is himself involved in the theft of above said, vehicle. So the matter was put to the elders of the locality and was decided by them with the consent of both parties and in consequence thereof the defendants/ respondents paid Rs.4,00,000/- to the plaintiff and afterward elders/Arbitrators appointed by the parties directed respondents/defendants to take oath in their defence or pay Rs.11,00,000/- to the plaintiff and for this purpose defendants were given time till 22.7.2007 but despite giving opportunity, they did not comply the directions/decision of Arbitrators hence this suit was instituted.
3. The learned trial court summoned the defendants who appeared before the learned trial court and contested the suit by filing their joint written statement.
4. The learned trial court after framing of issues, recording pro and contra evidence, hearing arguments of learned counsel for the parties, dismissed the suit of the appellant/plaintiff, vide impugned judgment dated 19.12.2009, hence the instant RFA.
5. Arguments heard and record perused.
6. The record reveals that the learned trial court though had mentioned in the order sheet dated 01.4.2009 that issues framed' but those issues' are not available on trial court file and after conclusion of trial all the documents relating to the proceedings are paged in the Index. A Perusal of same Index also reveals that issues were not available and paged, however, while on the other hand, the learned trial court has delivered issue wise judgment on 21.12.2009. so the issues were properly framed, parties led evidence and issue wise judgment was passed, wherein issues are mentioned. which is sufficient to believe that issues were framed and only for this purpose case could not be remanded back.
7. The other aspect of the case is that after announcement of judgment the present appellant filed Regular civil appeal before the learned Additional District Judge Takht-e-nasrati which was returned to the appellant/petitioner on the ground of lacking pecuniary jurisdiction being subject matter involved is more than Rs.10,00,000/- and thereafter instant Regular First Appeal has been filed before this Court alongwith application for condonation of delay.
8. The learned counsel for respondent raised preliminarily objection that instant appeal has been filed beyond the prescribed period of limitation and application for condonation of delay is against fact and law is liable to dismissal. He further asserted that the learned Additional District Judge, Takht-e-Nasrati returned the appeal after preliminary hearing on 27.10.2010 and instant appeal has been re-filed on 10.11.2010 after lapse of 13 days and in this respect has not forwarded or shown any sufficient cause for this further delay, as after the lapse of prescribed period of limitation the judgment and decree dated 21.12.2009 has attained finality and due to efflux of time valuable rights have been accrued to him, so this appeal being barred by time is not maintainable and is liable to dismissal. The learned counsel for the respondent referred the judgment of Hon'ble Supreme Court of Pakistan cited as PLD 1987 SC 284(b).
9. In response to this preliminary objection, the learned counsel for appellant submitted his arguments that his client Obtained certified copies well before the expiry of prescribed period of limitation and filed his appeal just after six days of obtaining certified copies. The appellant filed regular civil appeal before the learned Additional District Judge Takht-e- Nasrati well within time through his counsel with all due care and bonafide; that appellant filed said appeal on 19.01.2010 after the receipt of copies which were obtained on 13.01.2010, while the appellant applied for copies on the next day of judgment i.e. 22.12.2010; that after 19.01.2010 i.e. the date of filing of appeal he had so many days available to him and if the office of the learned Additional District Judge has returned the said appeal forthwith he could have filed it before the proper competent forum having pecuniary jurisdiction and due to this act of Court, appellant should not be suffered adversely. Ile placed reliance on Mst.
Nazeeran I3ibi v. Additional Judge Okara", (2006 YLR 216(c)); (PLD 1988 SC 20), the judgment of this Court in case titled "Dilawar Shah Vs Nasrullah Khan" (PLD 2011 Peshawar 256) and Sherin's case 1995 SCM R 584.
10. To this court primary question for determination is as to whether instant appeal is time barred and application for condonation of delay is not worth consideration.A
11. It is admitted fact that appellant/plaintiff is ordinary litigant who applied for certified copies just next day after the announcement of judgment by the trial court on 22.12.2010.
So his time will run after excluding the time spent for obtaining certified copies. The returned certified copies of impugned judgment alongwith decree sheet placed on instant file shows receiving date of certified copies as 13.01.2010. The present appellant filed appeal before the learned Additional District Judge, Takht-e-Nasrati on 19.01.2010 just after six days of receiving certified copies, hence, the appellant having sufficient period with him. B In such like circumstances act or conduct of appellant, act and conduct of his advocate through whom appeal has been filed and the act of the Court receiving such like appeal had its own significance and are not absolved from their respective legal obligations particularly the Court, who seized of matter. As in the appeal, which was returned later on, the learned Presiding Officer of that appellate Court in oblivion of High Court rules by not returning appeal on the very first day when it was filed and checked i.e. on '19.01.2010, has committed irregularity and illegality.
12. From the perusal of order sheet No.1 dated 19.01.2010 of Civil Appeal No.6/13 (the returned appeal) it transpires that it was presented by an advocate. The order sheet is reproduced as below.
"Civil appeal presented by Mr. Arsala Khan advocate, checked. Be registered in relevant register. To come up for preliminary hearing."
So it has been shown to be checked and not returned on the same day and if it was properly checked in the light of High Court rules and orders and it would have been returned forthwith could be have re-filed by the present appellant in' prescribed period of limitation before this Court. In this regard wisdom is derived from the judgment of Peshawar High Court in Dilawar Shah Case, PLD 2011 Peshawar 256.
"10. It is the initial and foremost duty of the office to see and check whether the appeal being filed is within the period prescribed by law, and then it becomes the duty of the court to see and determine as to whether it has got the jurisdiction to entertain and hear the appeal as office is not supposed to examine the jurisdictional side of the appeal and it is the sole responsibility of the Presiding Officer of the court to determine the question of its jurisdiction, as was held by their lordships in Sherin's case (supra).
High Court (Lahore) Rules and Orders--- ----Vol.I Chap.1-B, R.5 and Chap. 14-B, R.5"---Appeal--- Jurisdiction of Court---Determination-- -Duty of Court---Held, so far as the jurisdictional side was concerned, it was none of the functions of the Court officials to examine the memorandum of appeal from that angle but it was the sole responsibility of the Presiding Officer of the Court, to pass an order admitting or rejecting the appeal.
If an appeal once filed in a court, the office reports to have competently been filed and then the court also issues notices to the respondents after hearing the same then in that situation whether the party or his counsel filing appeal could be held responsible and the party can be refused the benefit of condonation of delay. Simple 'No' would be the answer to such questions as in such like situation the fault would be of the office and then of the court. The counsel or party in the circumstances could not be held responsible because, had it been properly checked and seen then the same would have been returned on the first day of its presentation or at its earliest and then the appellant would have sufficient time to approach the proper forum as the period of time prescribed under the law is ninety days for filing regular first appeal in the High Court. The appeal of the appellant kept on. pending adjudication from 29-7-2005 to 30-11-2006 almost about 16/17 months and return of appeal for want of pecuniary jurisdiction at such a juncture would be nothing else except the negligent and careless attitude of the office and then of the court. So, the appellant in the circumstances cannot be held responsible for such a delay as it is settled principle of law that none can be prejudiced by the act of the court. Reliance in this regard could be placed on Taza Gul's case 2006 SCMR 504 (supra)."
13. This Court noticed that this appeal remain pending before the learned appellate court for a period of more than nine months and then on 27.10.2010 it was returned to the appellant to approach the proper forum upon discovering that it lacks pecuniary jurisdiction. Same appeal was filed before the learned Additional District Judge well within time and many days were available to appellant to file it before the High Court.
14. Further the appellant had performed his obligation by applying for certified copies just next day of announcement of judgment and handed over it to his counsel reposing complete confidence upon his counsel and the judicial system knowing nothing about legal requirement with regard to proper appellate forum, so the conduct of the party, who remained vigilant showed not any negligence on his part and should not be suffered from the act of Courts. In this respect wisdom is derived from case titled, "KESC Ltd. v. LAWARI and 4 others" (PLD 2000 SC 94).
"This Court made it clear in the case of Sherin v. Fazal Muhammad (supra) that filing of an appeal in a wrong Court on account of mistaken advice tendered by the counsel canvassed on behalf of the appellant for condonation of delay by itself would not attract section 5 of the Limitation Act, but when the litigant and the counsel have acted with due care and caution and their conduct does not smack of negligence, the institution of the appeal in the wrong forum may constitute sufficient cause within the meaning of section 5 for condonation of delay."
15. With regard to act of court the omission on the part of Presiding Officer of the learned appellate Court to not take timely action is surfacing also which became the major cause for re-filing of instant appeal beyond time, which furnishes sufficient cause under section 5 of the Limitation Act, 1908, for condonation of delay. The other objection about the fact that instant appeal has been filed after delay of 12 days of return from the wrong forum has not any adverse effect upon the appellant as his conduct shows that he remained vigilant so the delay occasioned in re-filing instant appeal is hereby condoned. In this respect reliance is placed on Sherin's case 1995 SCM R 584; PLD 2000 SC 94 and PLD 2011 Peshawar 256 (supra).
16. Now on merit, from the perusal of record it reveals that appellant instituted a civil suit for recovery of Rs.1529000/- including price of vehicle, expenses incurred on search for it and expected per month income from its plying for about 11 months @ Rs.39000/- per month.
17. As per averments of plaintiff the arbitrators resolved the matter and plaintiff received Rs.400000/- from defendants and time was given to defendants to take public oath on Holy Quran, in presence of 25 notables of the locality which they refused to act upon which prompted the plaintiff to institute the present suit, however, to prove above narration the plaintiff himself appeared in the witness box as PW-1,and produced PW-3 Wali Jan Shah son of Rajan Shah, PW-4 Razem son of Norej Khan, while defendant No.1 Khalid Rehman had deposed as DW-3, and produced two other witnesses one Rashid Nawaz son of Muhammad Nawaz as DW-1 and Haji Khial Badin son of Anar Gul as DW-2.
18. From the evidence produced by the plaintiff it is proved that no record relating to registration of vehicle has been produced from proper custody as to whether it was custom paid and legally registered vehicle under motor vehicle laws of the land in the name of plaintiff, as plaintiff Rustam Khan during examination in chief stated that he owned said vehicle but during cross-examination stated differently by replying to a suggestion that this vehicle is in the name of his son namely Tawakali Khan, so plaintiff/appellant failed to prove that said vehicle was his ownership, while his son Tawakali Khan has not asserted any right to vehicle before any Court of law and also had not bothered to appear and depose as a witness in this respect in the instant case. Plaintiff also failed to produce any tangible evidence that he purchased the same vehicle on such amount from such person.
19. The record further reveals that plaintiff also had not provided III any documentary proof regarding renting it out at the rate of Rs.39000/- per month to some company.
20. The only documentary proof provided by the appellant/plaintiff is Ex:PW2/1, which is decision apparently in between plaintiff and Khalid Rahman defendant No.1, consist of three sheets. Same document I is signed by PW Wali Jan Shah, PW Gul Razem, PW Gul Fiyaz and DW Khiyal Badin but has not been signed, or endorsed by the defendants/respondents.
21. Plaintiff as PW-1 during cross-examination admits that Ex.PW2/1 has not been signed by defendants. Plaintiff has also not proved that how this vehicle was handed over to Khalid Rahman or upon his request to defendant No.2 Kamran Ahmad. File said award/decision if not signed by defendants then it is not admissible in evidence under the law. Plaintiff had not lodged any FIR for the theft of said vehicle in Police Station and had not produced any believable evidence that he had spent Rs.400000/- on search of said vehicle.
22. So after reappraisal of entire evidence, this Court hold that findings rendered by learned trial court below are based on correct appreciation of evidence and law, hence, need no interference. So this appeal being devoid of merits is dismissed with cost.