SYED ARSHAD ALI, J.---The petitioners through the instant revision petition have called in question the judgment and decree of learned Additional District Judge-VII, Abbottabad dated 18.06.2014 whereby the learned Additional District Judge, dismissed the appeal filed by the petitioners against the judgment and, decree of learned Civil Judge-II, Havelian dated 20.11.2012.
2. Brief but essential facts of the case are that plaintiff/ respondent No.1 filed a suit against appellants/defendants for declaration to the effect that he is owner in possession of the suit property, detailed in the heading of the plaint, consisting upon shops and boundary wall including pillars. That the sale deed No. 945 dated 21.05.2010 is illegal, against the law and without payment of sale consideration and on the basis of fraud, hence, liable to be cancelled. Similarly, on the basis of above mentioned registered sale deed attestation of Mutations No.12734 dated 12.09.2010, 12733 dated 17.09.2010 and 12631 dated 23.06.2010 in favour or defendants Nos. 1, 4 and 5 are against law and without the payment of sale consideration are illegal, and liable to be cancelled. Possession as an alternative relief was also solicited.
3. The suit was contested by the defendants. The learned trial Court framed issues from the divergent pleadings of the parties and after recording pro and contra evidence, decreed the suit as prayed for in favour of plaintiff/respondent vide judgment and decree dated 20.11.2012. Feeling aggrieved of the said judgment and decree, the appellants preferred an appeal/RFA No. 133-A of 2019 before this: Court which came up for hearing before this Court on 07.10.2013, on the said date, this court ordered for return of the appeal to the Appellants by holding that the value for the purpose of Court fee and jurisdiction has specifically mentioned in the heading of the plaint as well as its Para. No.12 as Rs.10,000, hence as per section 18(2) of the Civil Courts Ordnance, 1962, the forum of appeal has to be determined in view of the valuation of the subject matter for the purpose of jurisdiction given in the plaint and not on the basis of the actual value of the property.
Instead of presenting the said memo. of which was returned to him to the District Judge, the present petitioners filed a fresh appeal before the learned, District Judge/the Appellate court on 22.10.2013. The learned appellate court dismissed the appeal on 18.06.2014, holding the same to be barred by time.
4. Arguments heard and record perused.
5. The learned trial Court, through judgment dated 22.11.2012 decreed the in favour of plaintiff/respondent and against the present petitioner. The said decree of the trial Court was challenged before court through R.F.A No. 133-A/2012, despite the fact that the suit was valued for the purpose of jurisdiction in the heading of the plaint as 10,000/-rupees. Hence, there was no confusion in determining the forum of appeal as it is settled law that the forum of appeal is determined on the basis of valuation of the suit, for the purpose of jurisdiction, as given in the plaint. The only exception to the afore said rule is that if the trial Court re-determine the value of the suit for the purpose of jurisdiction, during the proceedings. In "Muhammad Ayub v. Dr. Obaidullah and others 1999 SCM R 394" the august Supreme Court of Pakistan has held:- "In order to resolve the controversy in hand, it will be advantageous to reproduce section 18 of the Civil Courts Ordinance, 1962, which read as under:-- "18. Appeals from Civil Judges.---(I) Save as aforesaid, an appeal from a decree or order of a Civil Judge, shall lie--
(a) to the High Court if the value of the original suit in which the decree or order was made exceeds five hundred thousand rupees; and
(b) to the District Judge in any other case."
The important aspect is to note "value of the original suit" occurring in the above provision. 'Value' has been defined in clause (h) of section 2 of the aforesaid Ordinance, which says that with reference to a suit, it means, the amount or value of the subject-matter of the suit. Plethora of case-law discussed by the High Court in the impugned judgment fortifies the view that the forum of appeal is to be determined according to the value of the suit as mentioned in the plaint and the fixation of the price of the disputed property by the trial Court totally irrelevant, because the judgment is yet to attain finality. In this view of the matter, we are also of the view that the Additional District Judge erroneously returned the memo of appeal."
The same was the view in judgments reported as PLD 2003 SC 46 and 2003 M LD 168.
6. However, the moot question for determination of this court is whether the filing of appeal before a wrong forum and the time consumed in pursuit of the appeal can be excluded/condoned from the prescribed period of limitation for filing appeal, in terms of section 14 of the Limitation Act, 1908.
This issue has been elaborately answered by the larger bench of the apex court in "Khushi Muhammad v. Fazal Bibi, PLD 2016 SC 872 the following manner:-- "In the preponderence 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. However 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 interpretation 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 abundantly 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 far 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 specially 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."
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 application of Section 14 is restricted to suits only and has no direct and independent application to cases where an appeal has been filed before a wrong forum."
7. There is yet another material negligence attributable to the petitioner that instead of presenting the appeal which was returned to them, to the learned appellate court (District Judge), they filed another/fresh appeal before the learned District Judge on 22.10.2013 against the judgment and decree of the learned trial Court dated 20.11.2012 and retained the origin memo. of appeal with them, which too without filing an application for condonation of delay. Hence the fresh appeal filed against the impugned judgment and decree of the trial court was patently time barred. Indeed, the requirement of the law was to present the same memo. to the appropriate appellate court which was returned to him, this gross negligence on the part of the Petitioners cannot fall within the realm of sufficient cause of delay in filing the appeal. Astonishingly the Petitioner did not file any application for Condoning delay in filing of the appeal. In "Mst. Khalida Begum v. Mst. Yasmeen 2000 CLC 1290", the honourable Lahore High Court has held:--.
"In the instant case, the delay was on account of appellants own negligence and not due to the act of the Court. The Court has passed the order on 1-10-1997 for returning the appeal for its presentation in the High Court (proper forum). It was incumbent on the appellants to present the same memo. of appeal on the very next day but they instead of filing the same in Court retained it with them, reasons best known to them. The delay of filing the appeal in the High Court in such circumstances would not be condoned on the ground that the learned counsel for the appellants had not been able to establish the sufficient reason, for retaining the memo. of appeal with them and filing the appeal in wrong forum.
8. In view of the above this petition has no merits, which is accordingly dismissed.