' This petition under section 115 of the Civil Procedure Code, 1908, is directed against the judgment dated 12-8-1997 passed by Ilnd Additional District Judge, Karachi, Central, in Civil Appeal No,103 of 1991 (Karachi Development Authority v. Mst. Unsiat Begum and others). That appeal was dismissed through the impugned judgment on the ground of delay.
2. The only question involved is that of delay in filing the first appeal, therefore, I would not like to discuss the merits of the parties' case. Although Mr. Syed Muzzaffar Imam, Advocate, attempted to argue this revision on facts as it was appeal but I had reluctantly permitted him in order to ascertain whether there is gross misreading. It was strenuously argued that the trial Court failed to consider material evidence in the shape of Exh.P/4, therefore, the judgment/decree dated 1-9-1999 passed by the IInd Senior Civil Judge, Karachi, Central, in Suit No,1244 of 1988 being void no limitation would run against such order. It was further contended the applicant has also filed an application under section 5 of the Limitation Act, 1908, along with its first appeal where sufficient grounds were given for not filing appeal within the time. In such circumstance it was prayed on behalf of the applicant that this revision application be accepted and two orders of the subordinate Courts be set aside. Reliance is placed on the following cases:-- (i)Malik Khawaja Muhammad and 24 others v. Marduman Babar Kahol and 29 others (1987 SCMR 1543).
(ii)Mst. Rehmat Bibi and others v. Punnu Khan and others (1986 SCMR 962).
(iii)The Commissioner of Income Tax, Central Zone 'B' Karachi v. M/s. Asbestos Cement Industries Limited, Karachi (1993 SCMR 1276).
3. Mr. Zaffar Alam Khan, Advocate, appearing on pre-admission notice, argued on behalf of the respondents that the judgment/decree was passed by the trial Court on 1-9-1990 and admittedly the first appeal was filed on 11-11-1991 after an unexplained delay of more than 14 months. It was further argued that the ground of illness of an Advocate is no ground for condoning such long delay. It was further pointed out that before the same trial Court in execution proceedings No,50 of 90 arising out of same judgment and decree, one Mr. Inayatullah Khan, Advocate, had appeared for the K.D.A. In addition to this fact, it was admitted by Mr. Muzzaffar Imam that in the year 1990 they were four other Advocates working in the office of K.D.A. In addition to a full-fledged legal department. Mr. Zaffar Imam has referred to the case of Government of Punjab and another v. Muhammad Saleem (PLD 1995 SC 396) wherein it was held by a Full Bench of Hon'ble Supreme Court that an applicant seeking condonation of delay under section 5 of the Limitation Act is required to explain delay of each and every day. (If any further reference is needed, please see Province of East Pakistan v. Abdul Hamid Darji and another (1970 SCMR 558 at 562) Muhammad Saeed v. Shaukat Ali (1982 SCMR 285) and Mst. Khursheed Begum v. Settlement Department and others (1976 SCMR 102).
4. In the case of Malik Khawaja Muhammad (supra) the Hon'ble Supreme Court declined to grant leave against the order of Balochistan High Court on the ground that the High Court found that the decree in the suit was passed in utter contravention of mandatory provisions of law, such order being nullity in law no limitation would run. Reference was made to the case of Mst. Rehmat Bibi (supra). The ratio of the case of Mst. Rehmat Bibi (supra) is that the limitation will not run when an order is nullity in law. It was further held that where an order has been passed without hearing and notice to a necessary party whose presence was necessary before the authorities concerned, such order will be a nullity in the eyes of law and no question of limitation would arise. In the instant case this is not case of applicant/defendant who has all along contested the case before the trial Court.
The last case referred by Mr. Muzzaffar Imam is the case of Commissioner of Income Tax, Central, Zone 'B' Karachi v. M/s. Asbestos Cement Industries Limited, Karachi, which lends no help to the applicants' case. In the instant case, non-consideration of one piece of document will not make the impugned judgment a nullity in eyes of law. There is a difference between a void order and an erroneous order. A void order is an order which is passed without jurisdiction in violation of the principle of natural justice and in contravention of a provisions of law. Recently, it was held by a Full Bench of Hon'ble Supreme Court in the case of Muhammad Shafi v. Mushtaque Ahmed and others (1996 SCMR 856) that the question of limitation may not arise in respect of judgments which are nullity in law, void or ultra vires and that the bar of limitation may be ignored in respect of void orders but not in respect of erroneous orders. (For further reference see Ali Muhammad v. Hussain Buz and others (PLD 1976 SC 37), Farouq Inayat and another v. Haji Abdul Sattar and 9 others (PLD 1996 Karachi 429),
5. Earlier to the impugned judgment, the first appellate Court had set aside the judgment/decree of the trial Court without going into the question of limitation against which respondents filed R.A.
No,144 of 1993 (Mst. Unsiat Begum and others v. K.D.A.) which was heard and disposed of by my learned brother Dr. Ghous Muhammad, J., who was pleased to remand this case to the Appellate Court with the following directions:-- There is considerable force in the submission of the learned counsel for the applicant that the application under section 5 of the Limitation Act was not at all decided by the learned appellate Court according to law. He further submitted that so far the judgment of the trial Court is concerned by. No stretch of imagination it can be treated as nullity in law because the learned- trial Court had the jurisdiction to pass the said judgment. I also find that without deciding the application under section 5 of the Limitation Act the learned appellate Court could not have exercised any power under Order 41, Rule 33, C.P.C. Thus the impugned order beside being illegal is also without jurisdiction and is liable to be set aside. Accordingly this revision is allowed. The matter is remanded to the learned appellate Court. It is further clarified that Appeal No,102 of 1991 as well as application under section 5 of the Limitation Act shall be deemed to be pending and the learned appellate Court is directed to decide the question of limitation afresh according to law. There shall be no orders as to costs....."
6. I have heard both the learned counsel at length and have gone through the case law as well as through the several documents filed in support of this civil revision petition. In my considered view where a Civil Court fails to consider some material evidence or if there is a case of misreading, an order/judgment/ decree passed in such a manner could not be termed to be a void order. There was a judgment/decree of the trial Court and the applicant was required to file an appeal within the prescribed time. It is no ground that an Advocate was ill and that he had not informed the legal department of the K.D.A, and therefore, appeal was not filed within the specified time. It is correct, then the K.D.A. Should have filed suit for damages and could have removed him; but this will not enlarge the time for filing of the appeal. I have gone through the order of the 1st Appellate Court.
Neither any illegality nor an irregularity was pointed out in such order.
7. As a result of above discussion, this revision application is dismissed in limine with no order as to costs.