' MUHAMMAD AKHTAR SHABBIR, J.-- This R.F.A has been filed by the defendants/appellants from the judgment and decree of the trial Court, dated 26-31996, whereby, the suit for partition of the suit property brought by the plaintiffs/respondents (herein) against the appellants was decreed.
2. Briefly stated the facts of the case are that respondents have instituted a suit for possession through partition alleging therein that Mushtaq Alam son of Muhammad Saddique predecessor- in-interest of the plaintiff/respondents and defendants/appellants Nos.1 to 3 was owner of the suit property of Plots Nos.83 and 85 situated in street No,21 Block 'S'. New Multan Colony, Multan and Property No,363 situated in Street Hafiz Noor Din Wali, Chowk Bazar, Multan. The predecessor-in- interest has died on 7-2-1991 and the respondents and appellants Nos.1 to 3 being his legal heirs are co-owner of the suit property The respondents have further alleged that the suit property is in possession of appellants Nos.1 to 3 and they (respondents) have not been getting any benefit from the suit property, therefore, they are entitled to get their share in the suit property. The defendant/respondent No,4 is bound to transfer the suit property in their names. The plaintiffs/respondents have prayed for permanent injunction, restraining the defendants/appellants from alienating the specific portion of the suit property.
3. The defendants/appellants Nos.1 to .3 had contested the suit, filed their written statement and denied the averment of the plaint. They averred in the written statement that said Mushtaq Alam, predecessor-in-interest of the plaintiffs and defendants Nos.1 to 3 had given the Property No,363 to the defendant No,1 in lieu of her dower and the Plot No,85 was not belonging to said Mushtaq Alam.
It was in the ownership of his sister and Mushtaq Alam as attorney of his sister has sold the plot.
The Property No,83 was transferred by way of registered will by Mushtaq Alam in favour of defendants Nos.1 to 3 and now the said defendants/appellants are in possession of the suit property as owners. They claimed that plaintiff No,3 was not the widow of deceased Mushtaq Alam.
In fact, he has divorced her in his life-time.
4. From the factual controversy appearing on the pleadings of the parties, the learned trial Court framed the following issues:--
(1) Whether the deceased Mushtaq Alam was owner of the suit property at the time of his death?
OPP
(2) Whether the deceased has discovered the plaintiff No,3? OPD.
(3) Whether the plaintiffs are co-owners in the suit property? If so what is their share? OPP
(4) Whether the suit is bad for non-joinder and misjoinder of necessary parties? OPD.
(5) Whether the plaintiffs have got no cause of action to file this suit? OPD
(6) Whether the suit is not properly valued for the purposes of court-fee? If so what is the correct value of the suit? OPD
(7) Whether the suit is barred by time? OPD
(8) Whether the suit is mala fide and vaxatious and the defendants are entitled to get special costs? OPD.
(9) Whether the plaintiffs are entitled to the decree for partition as prayed for? OPP
(10) Whether the .Suit property is partitionable? If so what is the mode of partition? OPP.
(11) Relief.
' After recording and appreciating the evidence of the parties, pro and contra, the Court decreed the suit vide impugned judgment and decree. The trial Court observed on issue No,6 that the share of the plaintiffs in the suit property was worth of more than three lacs and directed the plaintiffs to make up the deficiency of court-fee of Rs,15,000 within sixty days, from the date of the order. The findings of the trial Court on issue No,6 were challenged by respondents Nos.1 to 3 through R.I.A.
No,111 of 1996 in the High Court Multan Bench. This appeal was accepted on 17-11-1996 and the High Court has set aside the findings of the trial Court on Issue No,6 in toto while the appeal was only against the order to the extent of direction to pay the court-fee. Then, the respondents Nos.1 to 3 filed a Miscellaneous Application No,1320/C of 1996 under section 152, C.P.C. Which was accepted by the Court vide order, dated 2-4-1997. The High Court through the above referred miscellaneous application, has modified its earlier order to the extent of valuation of court-fee only.
6. The appellant had challenged the impugned judgment and decree of the trial Court before the Additional District Judge, Multan, through an appeal, where respondents Nos.1 to 3 preferred an application that the valuation of the suit for the purpose of jurisdiction would remain more than three lacs and the learned Additional District Judge has no pecuniary jurisdiction to try the appeal therefor the memo. Of appeal be returned to the appellant to present the same in the High Court.
The Additional District Judge vide its judgment, dated 1-10-1997 accepted the application and returned the appeal to the present appellants to present the same in. The High Court.
7. The appellants instead of presenting the memo. Of appeal in the High Court filed separate appeal challenging the judgment and decree, dated 26-3-1996 and the judgment of the appellant Court, dated 1-10-1997 returning the appeal to the appellants.
8. At the very outset, learned counsel for respondents' Nos.1 to 3 has raised two preliminary objections that the original memo. Of appeal has not been presented by the appellants in the High Court and the appeal is awfully barred by time. Learned counsel for the respondents contended that the Additional District Judge had passed an order under Order 7, Rule 10, C.P.C., returning the appeal for its presentation before the proper forum and has not disposed of the appeal on merits.
It would be heard and decided by a Court of competent jurisdiction. He further argued that the appeal presented in the High Court is a continuation of the appeal and it would debar the appellants from filing a different appeal in the proper Court. He further argued that the Additional District Judge has passed the order of returning the appeal on 1-10-1997 and the appeal was filed in the High Court on 11-10-1997 which was filed after the expiry of period of limitation. The appellants could not retain the memo. Of appeal with then. They were bound to present the same on the very next day in the Court when the order was passed. The delay in filing the appeal beyond limitation, would not be condoned on the ground of prosecution the appeal in the wrong forum. He relied on the cases of Mst. Hawabi and 6 others v. Abdul Shakoor and 8 others PLD 1970 Kar. 367, Sardraz Khan and 36 others v. Amirullah Khan and 34 others PLD 1995 Pesh. 86 and Muhammad Nawaz Khan v. VIst. Farrah Naz PLD 1999 Lah.
238.
9. On the other hand, learned counsel for the appellants has vehemently opposed the arguments of the learned counsel for the respondents and contended that the appellants should not be non- suited on mere technicality. He stressed that the value for the purpose of jurisdiction in the suit was fixed by the plaintiffs as Rs,25,000, and thus, the appeal was maintainable in the District Court. He further argued that the appellants have been prosecuting the appeal in good faith, with due diligence and there are sufficient reasons for the condonation of delay by filing the appeal under sections 5 and 14 of the Limitation Act. He relied on the cases of Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 and P.M. Amer v. Qabool Muhammad Shah and 4 others 1999 SCMR 1049.
10. We have heard the arguments of the learned counsel for the parties anxiously and considered the record.
11. The appeal filed by the appellants before the lower appellate Forum was returned to the appellants for presentation of the same in the High Court under Order 7, Rule 10, C.P.C. Which reads as under:-- "Return of plaint.--- (1) The plaint, shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.
Procedure on returning plaint.--- (2) On returning a plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it."
12. From the plain reading of the above said provisions of law, it is manifestly clear that the returning of the plaint or appeal is not final disposal of the matter. On the contrary, it would be heard and decided by the Court competent to hear it. As the effect of an order under rule 10 is, thus, to ensure the proper adjudication of the plaintiff's claim. The order under rule 10 is not a decree prima facie, therefore, no appeal would lie against the return of the plaint or appeal for presentation in the proper Court. It means that the plaintiffs or appellants had to file old plaint in the proper Court.
' It has been observed in the case of Hari Chand v. Madan Lal and others AIR 1930 Lah. 832 that no appeal lies from an order of an appellant Court returning a memorandum of appeal to be presented to the proper Court.
13. In the case in hand, learned Additional District Judge had returnee the appeal to the appellants for its presentation. In the High Court vid judgment and decree, dated 1-10-1997 and the appellants had retained the memorandum of appeal with them and not presented in the High Court. It a public document and part of the record of the Court. It would not become a private property. The appellants were under obligation to present the memo. Of appeal in the High Court as it is. Neither the appellants could file a fresh or amended appeal in, the proper Court. These arguments are strengthened by the dictum laid down in Hawabi and Sardraz Khan cases (supra).
14. The appellants have chosen a wrong forum. They could get the benefit of wrong advice and delay could be condoned on this ground provided they have been prosecuting the appeal in wrong forum with due C diligence but the learned counsel for the appellants himself has stressed that the appeal before the, wrong (lower) Forum was rightly filed, that is why, the judgment of the Additional District Judge has been challenged in this appeal, which in fact, was a wrong forum, therefore, the benefit would not be extended to the appellants in such circumstances'. This principle was settled by the Honourable Judges of he Lahore High Court in case of Muhammad Nawaz Khan (supra) and the Hounorable Supreme Court of Pakistan in Raja Karamatullah v. Sardar Muhammad Aslam Sukhera 1999 SCMR 1892 has observed in para. 13 of the judgment which is reproduced as under:-- "In the presence of section 18 of the West Pakistan Civil Courts Ordinance, there could be no doubt or complication to determine the forum of appeal. Sections 5 and 14 of the Limitation Act would come into play only if the delay appears to be condonable because of the appellants prosecuting their case with due diligence. The time consumed in pursuing the appeal in wrong forum, could not be condoned under section 5 of the Limitation Act. Ghulam Ali v. Akbar alias Akoor and another PLD 1991 SC 957 may be cited in this behalf. In Abdul Ghani v. Mst. Musarrat Rehana 1985 CLC 2529 it was observed that for bringing the case within the ambit of principles governing section 14, the appellant has to show that he prosecuted his remedy before the wrong forum in good faith. In Government of Pakistan v. Rafi Associates Ltd. 1985 CLC 2234 (Karachi) choosing wrong forum lacking due care and attention were not considered as acts done in good faith."
15. 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.
16. The cases referred to by the learned counsel for the appellants are not applicable to the present case and the appellants would not get the benefit of the same.
17. For the foregoing reasons and in agreement with the dictum laid down in the cases referred to above by the learned counsel for respondents. We are constrained to hold that appeal has been filed beyond the period of limitation which is, thus, dismissed. There shall be no order as to costs.