MIRZA VIQAS RAUF , J. This regular second appeal is directed against the judgment and decree dated 17 of December , 2014, whereby the learned Additional District Judge, Lahore, while dismissing the regular first appeal filed by the appellant upheld the judgment and decree dated 07 of March, 2013 passed by the learned Civil Judge 1 Class, Lahore, resulting into rejection of plaint.
2. Precisely the facts necessary for adjudication of instant appeal are that the appellant instituted a suit for declaration, permanent and mandatory injunction against the respondents challenging the memorandum of gift deed dated 22 of July, 1997 and claiming ownership upon the suit property . The respondent No.2, being one of the defendants in the suit moved an application under Order VII Rule 11 of The Code of Civil Procedure (V of 1908)
(hereinafter referred as "C.P.C.") for rejection of plaint. In pursuance to said application, plaint was rejected vide judgment and decree dated 07 of March, 2013. The petitioner assailed the said judgment and decree before the learned Additional District Judge, Lahore through regular first appeal, however , the same was dismissed vide judgment and decree dated 17 of December , 2014, being barred by time, hence this regular second appeal.
3. Learned counsel for the appellan t submitted that rejection of plaint was unwarranted. He added that the appellant has been non-suited on the basis of technicalities though plaint was competent under the law. Learned counsel maintained that first suit was withdrawn with permission to file afresh and there was no occasion for the learned trial court to reject the plaint under Order XXIII Rule 1 of "C.P.C.". Learned counsel contended that impugned order was void and though no limitation runs against such an order but the learned Additional District Judge has failed to take note of this material aspect, while dismissing the appeal filed by the appellant.
4. Conversely , learned counsel for respondents No.1 & 2 submitted that plaint was rightly rejected, as no permission was accorded to the appellant for filing a fresh suit. It is contended that initially plaint was rejected vide order dated 25 of July, 2012 which was not assailed. Learned counsel added that the appellant in the first instance filed appeal before this Court which was returned on 17 of May, 2013 but memorandum of appea l wasth th st nd th th th th not presented before the learned Additional District Judge within prescribed limitation period. Learned counsel maintained that appeal was thus rightly dismissed, being barred by time.
5. Learned counsel for respondent No.3, while defending the impugned judgments and decrees also adopted the arguments advanced by learned counsel for respondents No.1 & 2.
6. I have heard learned counsels for both the sides and also perused the record with their assistance.
7. The appellant in the first instance instituted a suit for declaration on 03 of March, 2004, however , same was dismissed as withdrawn vide order dated 12 of April, 2004. Record is indicative of the fact that the appellant moved an application under Order XXIII Rule 1 of "C.P.C." for the withdrawal of the said suit with a prayer that he be allowed to file afresh. The learned Civil Judge, seized with the matter , after recording of statement of the counsel for the appellant, dismissed the suit by way of order dated 12 of April, 2004 as withdrawn. Order dated 12 of April, 2004 clearly reflects that it was passed in pursuance to an application filed by the appellant. Law is well settled that whenever an application for withdrawal of the suit is filed with a prayer , seeking permission to file afresh, the court simply orders "dismiss ed as withdrawn" without adverting to the contents of application and without recording any reasons it shall be presumed that despite non-granting of specific permission to this effect in the order disposing of the suit, permission for filing afresh suit is deemed to be granted with reference to prayer clause embodied in the application move d for this purpose. Reliance in this respect, if needed can be placed on "MUHAMMAD YAR (DECEASED) throu gh L.Rs. and others versus MUHAMMAD AMIN (DECEASED) through L.Rs. and others" ( 2013 SCMR 464 ).
8. Now adverting to the other merits of the case, it is noted that pursuant to withdrawal of first suit, the appellant instituted another suit on 24 of April, 2012, however , on the applicati on of respondent No.1 plaint was rejected vide judgment and decree dated 25 of July, 2012. The appellant instead of challenging the said judgment and decree instituted third suit on 27 of September , 2012 qua the same cause. This suit was resisted by respondent No.2, who filed an application under Order VII Rule 11 of "C.P.C.", seeking rejection of plaint. By way of judgment and decree dated 07 of May, 2013, plaint was rejected in terms of Order VII Rule 11(d) of the Code ibid, being barred by the provisions of Order XXIII Rule 1(3) of said Code. The appellant then filed regular first appeal before this Court on 16 of May, 2013 which was returned on the next date i.e. 17 of May, 2013 on account of lack of pecuniary jurisdiction. It is evident from the record that the appellant instead of presenting the appeal to the learned District Judge, Lahore within stipulated time, showed gross negligence and filed the same on 21 of June, 2013 which was barred by time and thus was dismissed on this score alone.
9. Learned counsel for the appellant though emphasized that delay in filing the appeal before the learned Additional District Judge was on account of ill-advice and the appellant therefore, is entitled for condonation of delay under Section 14 of The Limitation Act, 1908 but I am afraid this argument at the face of it is fallacious and ill- founded. Section 14 of The Limitation Act, 1908, has nothing to do with appeals and its application was confined to suits, the same is reproduced below :-
14. Exclusion of time of proceeding bona fide in Court without jurisdiction. (1) In computing the 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 of first instance or in a Court of appeal, against the same party for the same relief shall be excluded, where such proceedi ng 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. "
From bare perusal of above referred provision of law it can safely be inferred that in computing the period of limitation prescribed for a suit, the time spent by the plaintif f in prosecuting, with due diligence, another civil proceeding shall be excluded; if other conditions regarding cause of action are fulfilled.rd th th th th th th th th th st 11
10. The term "suit" used in Section 14 ibid is of significance importance for tracing out the true impact of the said provision. "Suit" is defined in Section 2(10) of The Limitation Act, 1908 as under :-
(10) "suit" does not include an appeal or an application; and"exclusion is allowed only if a suit, not an appeal, has to be instituted. If a person filed a suit and showed to the Court that he had been, with due diligence, prosecuting a civil suit and subsequently an appeal, the time spent not only in prosecuting the civil suit but also the appeal would be excluded. However, if a person has filed a civil appeal and wished to seek exclusion of time which he spent, even with due diligence, in another civil suit or appeal, section 14 would not be applicable. While section 14 applies to civil suits, section 5 of the Limitation Act is applicable to appeals, applications and review petitions. When it becomes crystal clear that Section 14 of The Limitation Act, 1908 is not applicable at all, the appellant can only invoke provisions embodied in Section 5 of The Limitation Act, 1908 for the condonation of delay but for the said purpose, he is obliged to explain delay of each and every day by demonstrating sufficient cause. Now the paramount question which arises here is whether the principles of Section 14 of the Act ibid can be resorted to for the purpose of determining sufficient cause? For resolution of this question, I see no cavil to seek guidance from the latest view of the Honourable Supreme Court of Pakistan in the case of "ICHUSHI MUHAMMAD through L.Rs. and others versus Mst. FAZAL BIBI and others" (PLD 2016 Supreme Court 872) wherein after threadbaring discussion it is held that:- "34. Having discussed in detail the case law pertaining to the propositions at hand from the sub-continent, we proceed to a resolution of the said propositions.
Question No.1:- Whether Section 14 of the Act applies to appeals and if not, whether the principles enshrined therein (Section 14) can be made applicable while considering if a sufficient cause has been made out under Section 5 of the Act.
35. In the preponderance of the cases cited above it has been categorically held that the application of Section 14 ibid is restricted to suits and the provision shall not be attracted to appeals. Howeve r the ratio of some cases is that because an appeal is the continuation of a suit therefore on the basis thereof the section can be extended to appeals. But there are catena of judgments (which are cited by both the sides and also researched by our office) propounding the view that although Section 14 has no direct application to appeals the principles enshrined therein can be taken into consideration by the courts while deciding whether a sufficient cause for condonation of delay has been established in terms of Section 5. As per the salutary rule of interpreta tion of statutes, for construing a provision/section the ordinary dictionary meaning should be assigned to a word/expression appearing therein; however if such word/expression has been defined in the statute itself it should be given the same restrictive meaning. From the word the "suit" which appears in Section 14, it is abunda ntly clear that the said section applies to suits and there is no mention of appeal or revision etc. "Suit" has been defined in Section 2(10) of the Act (definition clause) as:- "2(10) "suit" does not include an appeal or an application:"
Thus from a plain reading there is no ambiguity that Section 14 is exclusively and solely restricted to suits and suits alone. If it is taken to apply to appeals also, this would be tantamount to reading into the section the word "appeal" which does not appear in the said section and such a reading would be contrary to the definition of the word "suit" in the statute. It is not permissible in law to defeat the express provisions of law by resorting to any rule of interpretation which would have the convoluted effect of rendering an appeal a continuation of the suit for the purposes of attracting the application of Section 14. Besides as per the rule of casus omissus , the courts are not entitled to read words into an Act of Parliament unless clear reasons for it are found within the four corners of the Act itself. In the instant case we do not find any such reasons. It may pertinent to state here that while referring to Section 2(10) ibid it was held in the judgment of this Court reported as Dr. Syed Sibtain Raza Naqvi (supra) , that:- "11. On reading Section 14 of the Act along with section 2(1), it appears that legislature specifically excluded the appeal or an application from the purview of "Suit". We left no doubt in our mind that benefit of section 14 of the Act cannot be extended to exclude the time consumed in prosecuting an appeal before wrong forum having no jurisdiction, for the purposes of filing an appeal before a forum having jurisdiction."11 This is an apt expression of law and the judgments of this Court which provide to the contrary (that the provisions of Section 14 are applicable to appeals) are per incuriam because in none of those cases was Section 2(10) ibid noticed or its effect considered. Thus our candid and firm opinion is that the applica tion of Section 14 is restricted to suits only and has no direct and independ ent application to cases where an appeal has been filed before a wrong forum.
36. Coming to the second part of this question; whether the principles of Section 14 ibid can be resorted to for the purposes of determining sufficient cause . We have given due and thoughtful consideration to all three views and are of the opinion that for the purposes of determining whether sufficient cause for condonation of delay is made out, no hard and fast rule can be laid down; there cannot and should not be a simple test for determining the same.
The establishing of sufficient cause is not amenable to mathematical formulae. Courts are called upon in individual cases to apply their judicial faculties to the facts placed before them and weigh the same in order to decide whether that ephemeral threshold has been crossed which means that the petitioner has convincingly established sufficient cause for condonation of delay. This is the reason that in the precedent case law, the superior courts have held that it would be unwise and unadvisable to state for all times to come that what may or may not constitute a sufficient cause; each case ought to be decided on its own merits vis--vis the plea of sufficient cause. For the purposes of determining whether in a given case sufficient cause has been made out when an appeal has been filed before a wrong forum, there does not seem to be any bar in law that the conditions or the limitation prescribed by Section 14 ibid cannot be looked into. However as stated later, while attending to question No.2, the conditions laid down in the section must be satisfied and established on the record. Mr. Gulzarin Kiyani also adopted this position and he has relied upon the case of Ramlal, Motilal and Chhotelal (supra) in this regard. Mr. Malik Muhammad Qayyum appearing for the other side which pleaded in favour of the proposition that time should not be condoned, has refrained from adopting the position that the principles of Section 14 cannot be resorted to at all. Only Mr. Munir Piracha has adopted such a stance but we are not persuaded to agree with him for the reason that the term sufficient cause has to be given the widest possible amplitude and in so doing the conditions/principles of Section 14 ibid cannot be left out."
This leaves no ambiguity that plenary applicability of Section 14 of The Limitation Act, 1908 is restricted and confined to suits and suits alone.
11. While dealing with the question as to whether the institution and the pendency of appeal on the wrong advice of counsel before a wrong forum i.e. one lacking jurisdiction constitutes a sufficient cause for condonation of delay in terms of Section 5 of The Limitation Act, 1908, the Hon'ble Apex Court observed as under :- "Question No.2:- Whether the institution and the pendency of the appeal on the wrong advice of the counsel before a wrong forum i.e. one lacking jurisdiction constitutes a sufficient cause for condonation of delay in terms of Section 5 supra.
37. The purpose of the laws of limitation is to establish certainty in the affairs of men, to bring repose and to bring an end to litigation after a certain time period has expired from accrual of an actionable right. Both Sections 5 and 14 of the Act are exceptions to the laws of limitation. A person claiming under the aforesaid exceptions must establish that he or she is not disentitled to the discretionary relief which may be awarded by the Court. Therefore a claimant seeking condonation of delay must explain the delay of each and every day to the satisfaction of the Court, establish that the delay was caused by reasons beyond the person's (or counsel's) control and that he was not indolent, negligent or careless in initiating and pursuing the actionable right which had accrued in his favour .
The "borrowed" applicability of the provisions of Section 14, where its principles are taken into account to set the standard for sufficient cause , proceeds on the conditions precedent of due diligence and good faith which must be present before the court grants condonation of delay on the basis of time spent before wrong fora; even if such principles are not taken into consideration the court is not supposed to exercise its discretion in any arbitrary , whimsical and fanciful manner but has to see if a case was made out by the appellant which prevented and precluded him from approaching the right forum of appeal. The overwhelming case law cited in the earlier part of this opinion concludes that the institution and the pendency of an appeal before a wrong forum on counsel's wrong advice i.e. one having no jurisdiction does not constitute a sufficient cause for condonation of delay in terms of Section 5 of the Act, but there is considerable case law that supports the contrary view. In my opinion, the gulf betwixt the divergent views must be bridged by employing proportionality and balancing. It can neither be held that condonation is absolutely ruled out in such a situation nor that the appellant shall be entitled to condonation as a matter of course and right, rather the Court must look into the facts and circumstances of each case as to whether sufficient cause has been made out. Because any exercise of discretionary jurisdiction in favour of a person seeking relaxation of the application of the laws of limitation as of right etc. would be prejudicial to the interests of the respondent. A valuable vested right accrues in favour of the respondent the moment a relevant period of limitation expires in that the respondent is then free from the hanging sword of an actionable claim. In order to wrest away this valuable right from a respondent the person seeking condonation of delay must establish sufficient cause. However, sufficient cause is a term wide enough to encompass within it the principles enshrined in Section 14 of the Act or indeed independent thereto. Time spent pursuing an appeal before a wrong forum, in good faith and with due diligence ought in our view to constitute sufficient cause for condonation of delay. But the act of approaching a wrong forum must be accounted for: it should be established that due to some honest, bona fide and genuine ambiguity in the law or in fact, a party or his counsel was led astray in terms of approaching a wrong forum. Mere incompetence of the counsel, inadvertence, negligence or ignorance of law attributable to him and/or overlooking of the record by the counsel cannot constitute sufficient cause ipso facto , but the factor(s) which misled the legal counsel, including any ambiguity in the law, causing him to file the appeal before the wrong forum must be indicated. Mere wrong advice of counsel is not an adequate ground per se to constitute sufficient cause because if this rule is accepted, the centuries tested rule that ignorance of law is no excuse would stand violated. Besides, the above factors which caused ambiguity and misled the appellant (or his counsel as the case may be) have to be stated with clarity and precision in the application for condonation of delay and proved on the record.
38. We are cognizant of the fact that a client is at a disadvantage with reference to a counsel on account of asymmetric information. There may be instances where there is a different period of limitation applicable to different fora of appeal, and an appellant whose appeal is time barred before an appropriate forum may instead deliberately approach another forum (knowing it to be the wrong forum) in order to lay claim that time spent before a wrong forum ought to be condoned on account of the fact that appellant had approached it (forum) on the advice of counsel. All Courts must keep these considerations in mind when deciding whether or not delay caused by virtue of alleged wrong advice by counsel should be condoned. Though legal counsel are professionals of some learning who are required to be au fait with the basics of law in terms of where to file an action, we are deeply conscious of the fact that at times certain counsel may unwittingly mislead litigants. Poor advice by a counsel may well cause hardship to a litigant and compromise his ability to seek redress in law. But hardship caused to a person on account of poor advice of counsel does not consti tute a sufficient cause for condonation of delay per se. Courts must insist that applications for condonation of delay must specify with particularity as to what factors misled the counsel and gave him cause to form his unfortunate opinion with respect to the (wrong) forum adopted and thereafter the said factors must be proved on record. It is then for the court to decide if, on the basis of such factors, sufficient cause has been made out or not. A case in point which could possibly constitute sufficien t cause is where whilst drawing the decree, the trial court on account of some clerical inadvertence/omission gives a valuation different from the actual valuation for the purposes of appeal, due to which a counsel is misled into believing that the appeal should be filed in the court as per the valuation in the decree sheet, which is in fact incorrect.
Therefore we are fortified in our view that mistaken advice of counsel does not constitute a sufficient cause for condonation of delay as a matter of course and routine and/or is automatic and per se, rather as mentioned above, the appellant has to specify the reasons with clarity and precision which prevailed with the counsel and led him to commit the mistake and such application must also be supported by an af fidavit. "
The above survey of law leaves no room for this Court except to hold that mere mistaken or ill advice of counsel does not constitute a sufficient cause for condonation of delay . The appellant has to satisfy the reasons with clarity and precision which prevailed with the counsel and led him to commit the mistake. The application under Section 5 of The Limitation Act, 1908 accompanyin g the regular first appeal when seen in this perspective, it clearly lacks such pre-requisite. Even otherwise as already observed that memo of appeal was returned to the appellant on 17 of May, 2013, but the same was presented to the learned lower Appellate Court on 21 of June, 2013 with a considerable delay without any lawful excuse. Thus it can safely be inferred that appellant has failed to demonstrate a cause which can be termed as sufficient to condone the delay in presenting the appeal before the learned Additional District Judge. Reliance in this respect can be placed on "Dr. Syed SIBTAIN RAZA NAQVI versus HYDROCARBON DEVELOPMENT and others" (2012 SCMR 377), "KARACHI ELECTRIC SUPPLY CORPORATION LTD. versus LAWARI and 4 others" (PLD 2000 Supreme Court 94) and "SHERIN and 4 others versus FAZAL MUHAMMAD and 4 others" (1995 SCMR 584).
12. Now viewing from another angle as it is emphasized by learned counsel for the appellant that since basic order dated 25 of July, 2012 was void, so no limitation runs in the instant matter , suffice to observe that there is a mark distinction between a void and illegal order . An order can only be termed as void if the court or forum adjudicated and decided a matter without jurisdiction and such decision would be of no legal effect, whereas a decision which is either erroneous or wrong but given by a forum or court having the jurisdiction in the matter is termed as illegal order . Reference can safely be made to "S.M. WASEEM ASHRAF versus FEDERA TION OF PAKIST AN through Secretary , M/O Housing and Works, Islamabad and others" (2013 SCMR 338). Even this Court has adopted the same principles in the case of "Mian MUHAMMAD SHARIF versus INCOME TAX APELLA TE TRIBUNAL, LAHORE" (2016 PTD 296). In the case of "Messrs BLUE STAR SPINNING MILLS LTD versus COLLECT OR OF SALES TAX and others" (2013 SCMR 587) the Honourable Apex Court, while dealing with the question of limitation against void order held as under :- "4 The Court specifically adverted to the argument raised by petitioner's learned counsel that no limitation runs against a void order and held that this is not an inflexible rule; that a party cannot sleep over to challenge such an order and that it is bound to do so within the stipulated/prescribed period of limitation from the date of knowledge before the proper forum in appropriate proceedings. This is in line with the law laid down by this Court in Chief Settlement Commissioner v. Muhammad Fazil (PLD 1975 SC 331) wherein it is observed that "direct proceedings for having a decision invalidated or set aside may be either by way of appeal, revision or review, initiated by the affected party, in accordance with the relevant law; or they may take the form of suo motu recall of the order by the Court or authority which made it; or, lastly, action to be taken by way of a regular suit before a Court of general jurisdiction for a declaration as to the invalidity of the order." Similarly in Muhammad Raz Khan v. Government of N.-W.F.P. (PLD 1997 SC 397) at page 400 this view was reiterated in terms as follows:-- "We earnestly feel that unless certain constraints apply against right of challengin g void order specially relatable period of knowledge, the same may create complication leading to dangerous results. Principle of justice and fair play does not help those who were extraordinary negligent in asserting their right and despite becoming aware about alleged void order adverse to their interest remain in deep slumber . Therefore, according to our considered opinion, facility regarding extension of time for challenging orders cannot be legitimately stretched to any length of unreason period at the whims, choices or sweet will of affected party . Thus, order termed as nullity or void could at best be assailed by computing period of limitation when he factually came to know about the same. When a person presumes that adverse order is a nullity or totally devoid of lawful authority and ignores it beyond the period specified by law of limitation, then he does so at his own risk. Therefore, in all fairness terminus a quo will have to be fixed, the date of knowledge of alleged void order; which too must be independently established on sound basis. In this behalf we derive strength from the observations contained in PLD 1975 Baghdad-ul-Jadid 29 (Sayed Sajid Ali v. Sayed Wajid Ali) and 1978 SCMR 367 (S. Sharif Ahmad Hashmi v. Chairman, Screening Committee)"."
In the light of collective analysis of the principles laid down in the above referre d cases, contention of learned counsel loses any ef ficacy .
13. This is a regular second appeal which has a very limited scope as provided under Section 100 of "C.P.C."
There are concurrent findings which can only be interfered if some procedural defect materially , effecting such findings is pointed out by the appellant. Even otherwise in regular second appeal, jurisdiction of this Court is limited to the extent of interference on a question of law and not on facts. Reliance in this respect can be placed onth st th "BASHIR AHMED versus Mst. TAJA BEGUM and others" (PLD 2010 Supreme Court 906) and "MUHAMMAD FEROZE and others versus MUHAMMAD JAMAA T ALI" ( 2006 SCMR 1304 ).
14. In view of discussion made hereinabove, it can safely be held that the appellant has failed to point out any of the legal infirmity hedged in Section 100 of "C.P.C" in the impugned judgments, warranting interference by this Court. This being so, the instant regular second appeal is dismissed with no order as to costs.