1. ' The applicants in this revision application have assailed the judgment dated 8-5-2000, passed by learned IInd Additional District Judge, Sukkur in Civil Appeal No,9 of 2000, whereby the order passed by IInd Senior Civil Judge, Sukkur, rejecting the plaint under Order 7, Rule 11, C.P.C. Filed by respondent was reversed and thereby remanded the suit for trial.
2. ' The brief facts giving rise to this revision are that the respondent Yar Muhammad filed a suit for specific performance of contract and permanent injunction in the Court of Senior Civil Judge, Ghotki in respect of agricultural land comprising Survey No,73/4 and others admeasuring about 8.03 acres of Deh Chichro, Taluka Pano Akil. He claimed to have purchased the said land from applicant No,1 Muhammad Usman, through a sale agreement dated 28-9-1991, duly attested by the Mukhtiarkar and F.C.M. Pano Akil.
3. ' The applicants/Defendants contested the suit and filed their joint written statement, wherein they denied the assertions of respondent made in the plaint. They raised several pleas including the plea that the suit was insufficiently stamped. The applicants moved an application under Order 7, Rule 11, C.P.C., seeking rejection of the plaint on that score. Later on in the year 1994, the said suit was transferred to the Court of IInd Senior Civil Judge, Sukkur after creation of the District Ghotki.
4. ' The learned IInd Senior Civil Judge after hearing the parties directed the respondent to pay the court-fee for seeking the relief of possession, within fifteen days from the order dated 17-9-1997.
5. The review application was moved against said order but it was also dismissed on 4-3-1998. The trial Court ultimately on 12-6-1998 allowed the application under Order 7, Rule 11, C.P.C. And thereby rejected the plaint of respondent. The respondent did not challenge the said order but filed C.P.
6. No,D-995 of 1998 in this Hon'ble Court on 17-8-1998. This petition was dismissed in limine but it was observed as under:-- "In the above circumstances, we would like to observe that if an appeal against the impugned order and decree is tiled before the Appellate Court, and an application for condonation of delay is accompanied with such appeal, the Appellate Court while dealing with the question of condonation of delay shall take a lenient and sympathetic view keeping in mind the fact that if the petitioner is knocked out of litigation on a purely technical ground, serious prejudice will be caused to his interest and he will be made to suffer due to a prima facie illegal order and decree of the trial Court."
7. ' That the respondent, in view of the above observations made by Division Bench of this Court, filed an appeal under section 96 C.P.C. In the Court of District Judge, Sukkur, who had been pleased to transfer the same to the Court of learned lInd Additional District Judge, Sukkur. The application under section 5 of Limitation Act was allowed and the Civil Appeal filed by respondent was admitted to regular hearing.
8. ' The said Civil Appeal bearing No,9 of 2000 was ultimately allowed on 8-5-2000 and the suit filed by the respondent was remanded back to the trial Court for proceeding with it on merits. The applicants through this civil revision have challenged the said order.
9. ' It is contended by the learned counsel for the applicant that the original order whereby the application under Order 7, Rule 11, C.P.C. Was allowed was not challenged in appeal by the respondent. The Civil Appeal was time-barred and the time was condoned without hearing the applicant. As such, the appeal could not have been admitted under the law.
10. ' It is submitted that civil appeal was barred by time and the Court was not empowered to condone the delay and admit the same. The limitation is not a mere technicality but it creates a substantive right to the other side which cannot be lightly brushed aside in discretionary powers of the Court.
11. The reliance is placed upon the cases of Rahmatullah v. Muhammad Ikram and 7 others 1999 M LD 1622; Nasir Raza Jaffery v. Messrs Macter Pharmaceutical (Pvt.) Ltd. Through Managing Director and 34 others PLD 1998 Kar. 250 and Inam-ur-Rehman Shah, Assistant Entomologist, Agriculture Department, Muzaffarabad v. The State PLD 1989 SC (AJ&K) 32.
12. ' Mr. Khadim Hussain Mangi, learned counsel for the respondent has argued that the order was passed in Constitutional petition by this Court wherein it was observed that if an appeal against the impugned order is filed before the appellate Court alongwith an application for condonation of delay, the appellate Court shall take a lenient and sympathetic view keeping in mind the fact that if the petitioner is knocked out of litigation purely on technical ground, the serious prejudice would be caused to his interests and he will be made to suffer due to illegal orders and decree of the trial Court. The judgment and decree dated 17-9-1997 was illegal, void and without lawful authority, therefore, the time would not run against the void and erroneous order.
13. ' The respondent filed an appeal and the same was admitted for regular hearing. The parties were heard at length and ultimately the appellate Court allowed the appeal and remanded the suit of respondent for its trial. It is maintained that the order is quite legal and is based on sound and logical reasoning in view of the observations made by Division Bench of this Court.
14. 'The perusal of record shows that respondent filed a suit for specific performance of contract, possession and permanent injunction but the court-fee for the relief of possession was not paid.
15. Hence the application under Order 7, Rule 11, C.P.C. Was moved. The trial Court allowed 15 days' time to the respondent to pay the deficit court-fee but he failed to pay the same and as such the application under section 7, Rule 11, C.P.C. Was allowed and the plaint was rejected. Although, the appeal was not preferred against that order but subsequently Constitutional petition was moved wherein Division Bench of this Court made observations which are reproduced above. The parties were heard and appeal was allowed. The case was remanded to trial Court for proceeding with it on merits.
16. ' It is pertinent to note that the substantive rights of the parties are involved and the said controversies can only be resolved by adducing the evidence. The Court fee has been paid and the parties have been allowed to produce their evidence in the trial Court. In the peculiar circumstances and facts of the instant case, the trial of suit would be in the interest of both the parties to resolve the outstanding controversies. The appellate Court has passed an elaborate order in the matter which does not suffer from any illegality or irregularity.
17. ' The argument that that time cannot he condoned by the appellate Court in spite of directions of Division Bench of this Court as substantive right had already accrued to the applicant is not tenable. The case law cited at the bar is distinguishable from the facts and circumstances of the instant case and has no relevancy to it.
18. ' It would, however, be just and proper that the issue of limitation in respect of the right already accrued to the applicants is to be resolved by the trial Court after considering the evidence adduced by both the parties irrespective of being influenced by the orders passed by this Court.
19. ' The trial Court is directed to conclude the trial within six months after the receipt of this order.
20. ' The point of limitation is mixed question of fact and law but no illegality has been pointed out by the learned counsel appearing for the applicants. No mis-reading or mis-appreciation of evidence has been seen on the record. The civil revision had no substance and was dismissed by a short order on 13-4-2001. These are the detailed reasons.