1. CH. IJAZ AHMAD, J.---The brief facts out of which the present appeal arises are that the respondent filed a suit for recovery of damages amounting to Rs.87,15,920 on the basis of malicious prosecution before the Civil Judge, Ferozewala on 25-9-1997. The appellant appeared before the trial Court on 13-10-1997 and filed an application under Order 11, rules 12, 14 and 16, C.P.C. With the prayer to produce the documents relied upon by the plaintiff/respondent. The plaintiff/respondent also filed an application under Order VIII, rule 10, C.P.C. On the said date. The learned trial Court directed the parties to file replies of the aforesaid applications and fixed the next date of hearing as 13-1-1998. The parties failed to file replies of the aforesaid applications on 13-1-1998 and the case was adjourned for 5-2-1998. The parties submitted their replies of the aforesaid application before the trial Court and the case was adjourned for 14-2-1998 for arguments on the said applications.
2. The appellant did not appear before the trial Court and ex parte order was passed against the appellant by the trial Court on 14-2-1998 and adjourned the case for ex parte evidence for 16-3- 1998. On 16-3-1998 appellant filed an application for setting aside the order, dated 14-2-1998. The trial Court directed the plaintiff/respondent to file reply of the application and adjourned the case for 10-4-1998 and finally the application was allowed as the respondent/plaintiff did not oppose the setting aside of order, dated 14-2-1998 as is evident from order, dated 9-7-1998 subject to payment of cost of Rs.300. The case was adjourned for 20-7-1998 for tiling written statement. On 20-7-1998 learned counsel of the appellant requested more time to file written statement and the case was adjourned for 25-7-1998. Ex parse decree was passed against the appellant on 27-7- 1998. The appellants tiled application under Order IX, rule 13 read with section 12(2), C.P.C. For setting aside the decree before the trial Court on 30-9-1998. The trial Court dismissed the application of the appellant vide order, dated 18-1-1999. Hence the present appeal.
2. Learned counsel of the appellant submits that case was adjourned by the trial Court on 20-7- 1998 for 25-7-1998. The appellant's counsel appeared before the trial Court on 25-7-1998. The case was not mentioned in the cause list and the Reader of the trial Court informed the' appellant's counsel that the next date of hearing was fixed as 27-9-1998. 27-9-1998 was Sunday. The appellant appeared before the trial Court on 28-9-1998 and came to know that the decree had already been passed against the appellant on 27-7-1998. Learned counsel of the appellant submits that learned trial Court fixed the date 25-7-1998 on 27-7-1998. Therefore, trial Court erred in law to pass the decree against the appellant on 27-7-1998. The trial Court passed the decree against the appellant on 27-7-1998 as is evident from the judgment and decree and order, dated 27-7-1998 in Urdu. Date of decision was typed 27-7-1998 on the title of the judgment, date of announcement and also in Urdu order which was subsequently corrected by the trial Court at the time of deciding the application of the appellant by pen on 18-1-1999. He further submits that trial Court could not pass the decree against the appellant unless and until the applications filed by the parties had been decided by the trial Court. Therefore, trial Court erred in law to pass the impugned decree against the appellant on the date which was not fixed and is not in accordance with the law laid down by the superior Courts. In support of his contention he relied upon the following judgments: Hashim Khan v. National Bank of Pakistan 1992 SCMR 707 and Qazi Muhammad Tariq v. Hasin Jahan 1993 SCMR 1949.
3. He further submits that no specific order was passed by the trial Court to direct the appellant to file written statement. Therefore, trial Court erred in law to proceed against the appellant. In support of his contention he relied upon the following judgments:-- Azad Hussain v. Haji Muhammad Hussain 1994 CLC 1817; 1992 MLD 2026 and Mutali v. Manzoora PLD 1994 Lahore 298.
4. He further submits that the limitation prescribed in the present case as three years in view of Article 181 of the Limitation Act and Article 164 is not attracted in the present case. He relied upon the following judgments:-- Rehman's Weaving Factory v. I.D.B.P. PLD 1981 SC 21 and Syed Razi Haider Naqvi v. Wasi Ali 1985 CLC 2330. not attracted. In support of his contention he relied upon the following judgments:-- State Life Insurance Corporation v. Messrs Ibrahim Management 1990 CLC 206; Tariq Mahmood v.
5. Zarda Begum 1995 CLC 1102 and Abdul Ghani v. Haji Saley Muhammad PLD 1960 (W.P.) Karachi 594.
6. He further submits that onus of proof is upon the respondent/plaintiff to establish the contents of the plaint but the onus was not discharged by the respondent/plaintiff as the respondent/plaintiff did not appear in the witness-box. In support of his contention he relied upon the following judgments:-- Abdul Rauf v. Abdul Razzak PLD 1984 SC 476 and Sardar Sakhawatuddin v. Muhammad Iqbal 1987 SCMR 1365.
3. Learned counsel of the respondent has highlighted the conduct of the appellant qua non-filing the written statement and to this extent highlighted the facts in chronological order in the following manner. The suit was filed by the respondent/plaintiff before the trial Court on 25-9-1997; the service of the appellant/defendant was effected on 13-10-1998; copy of the plaint was handed over to the appellant on 29-10-1997; the trial Court fixed 12-11-1997, 26-11-1997, 9-12-1997 for filing written statement by the appellant/defendant and finally the appellant's counsel sought an adjournment for filing written statement as is evident from order, dated 20-7-1998 and the case was adjourned for 25-7-1998 for filing written statement. According to law the appellant/defendant has to file written statement within 30 days but the appellant/defendant did not file the written statement within the prescribed period and filed an application on 9-12-1997 to inspect the documents which were already on the record after two months from receiving the copy of the plaint. The appellant/defendant did not enter appearance on 14-2-1998 and ex parte order was passed against the appellant/defendant. The appellant submitted application for setting aside order, dated 14-2-1998 on 16-3-1998 which was finally accepted on the consent of the respondent/ plaintiff's counsel subject to payment of cost amounting to Rs.300. The appellant/ defendant did not pay the said cost till date. He further submits that case was fixed on 25-7-1998. Neither the appellant/defendant nor his counsel entered appearance. The Clerk of the appellant's counsel entered appearance which was not recognized by the trial Court and the trial Court stated that the order would be announced at the later part of the day. The trial Court orally announced the order on 25-7-1998. Although the trial Court mentioned the date in the order as 27-7-1998. Learned counsel of the respondent submits that respondent/plaintiff cannot be penalized by the act of the Court. He further submits that judgment relied upon by the learned counsel for the appellant Sardar Sakhawat-ud---Din and others v. Muhammad Iqbal and others 1987 SCMR 1365 is not supported the case of the appellant. In fact the same is in favour of the respondent/plaintiff. He further submits that judgments relied upon by the learned counsel for the appellant Sindh Industrial Estate Ltd. v. Provincial Ombudsman and others 1993 SCMR 949 and Hashim Khan v.
7. National Bank of Pakistan 1992 SCMR 707 are distinguished on facts and law as in the first case application for temporary injunction was fixed and the suit was also dismissed by the trial Court.
8. Similarly in the second case application of interlocutory matter was fixed but the trial Court also dismissed the suit. He further submits that appellant was granted seven opportunities including the last one to file written statement by the trial Court but the respondent failed to file written statement within the prescribed period, therefore, the trial Court was justified to pass the impugned judgment and decree against the appellant in view of amended Order 8, rule 1, C.P.C. As the Legislature has fixed one month to file a written statement. In support of his contention he relied upon Executive Engineer v. Messrs Tour Muhammad & Sons and others 1983 SCMR 619. He further submits that documents were attached by the respondent/plaintiff alongwith the plaint in view of Order 13 rule 1, C.P.C. The appellant/defendant did not file any application under the provisions of C.P.C. For acceptance or denial of the documents. The impugned judgment was passed against the appellant by the trial Court orally on 25th of July, 1998 and the clerk of the appellant's counsel entered appearance before the trial Court on the said date as is revealed from the impugned judgment and decree, therefore, question for noting wrong date did not arise. According to the appellant's counsel the date was noted as 27th September, 1998 which was admittedly a Sunday. It was the duty and obligation of the appellant or his counsel to find out the date from the trial Court within a week but the appellant/defendant did not adopt the said course. He further submits that law does not permit to give benefit to the litigants to achieve the benefit of his own misdeeds or negligence. The appellant mala fide filed application under Order 9, rule 13, C.P.C. Read with section 12(2), C.P.C. Simply to cover the period of limitation as admittedly by that time one month has already been expired to file an application under Order 9, stile 13, C.P.C. He further urges that it is settled principle of law that appellant/defendant has to explain the delay of each day with cogent reason as the vested right had already accrued to the respondent/plaintiff. He further urges that appellant did not file any application for condonation of delay before the trial Court. The revision as well as the appeal are highly time-barred and the appellant/defendant failed to furnish sufficient cause for condonation of delay. This Court has no jurisdiction to condone the delay in view of the law laid down by the superior Courts in such circumstances on account of the conduct of the appellant and other circumstances i.e. The earlier suit was dismissed which was restored on the concession of respondent/plaintiff counsel with cost of Rs.300. The appellant failed to pay cost till date. In support of his contention he relied upon the following judgments:- Federation of Pakistan v. United Sugar Mills, Karachi PLD 1977 SC 397; Rehman's Weaving Factory v.
9. Industrial Development PLD 1981 SC 22; Lahore Art Press v. N.B.P. PLD 1990 Lahore 300; Federation of Pakistan v. Gul Hassan Khan 1989 CLC 656; Chief Personnel Officer v. Anjum Farooq and 6 others 1997 SCMR 860; Jiwan Das v. Rekhmat Din and another. AIR 1941 Lahore 212; P. Rama Chandra Rao v.
10. Agricultural I.O. AIR 1961 Kirala 110; Government of Sindh. v. Ch. Fazal Muhammad PLD 1991 SC197; Pakistan through Secretary v. Messrs Azhar Brothers Ltd. PLD 1990 SC 1059; Sikandar A. Karim v. The State 1991 SCMR 396 and Chief Land Commissioner v. Makhdoom Syed Nazar, 1975 SCMR 352.
11. He further submits that the learned trial Court was justified to decree the suit in favour of the respondent/plaintiff with cogent reasons. In support of his contention, he relied upon "Muhammad Akram v. Farman Bai" (PLD 1989 Lahore 220). He further submits that the Article 164 of the Limitation Act is attracted in the present case and the limitation is prescribed according to this Article is 30 days, in view of Order 9, rule 7 and Order 9, rule 13, C.P.C. In support of his contention, he relied upon "Manzoor Ahmad Bhatti. v. Road Transport Corporation" PLD 1973 Lahore 659. He further urges that the learned trial Court was justified to pass the impugned decree in favour of the respondent/plaintiff under Order 8, rule 10 of C.P.C. Which is in accordance with the dictum laid down by the superior Courts. He further urges that the judgment was announced on 25-7-1998.
12. Although, it was written in the impugned judgment as 27-7-1998 which was corrected by the learned trial Court on the application filed by the appellant under Order 13, rule 6 read with section 12(2), C.P.C. On 28-1-1999. He further urges that ingredients of section 12(2), C.P.C. Are not attracted in view of paras. Nos.4 and 5 of the application filed by the appellant. He further urges that limitation cannot be condoned under the mistaken advice of learned counsel of the appellant. He summed up his arguments that the revision filed by the appellant is highly time-barred and the learned counsel of the appellant failed to show any sufficient cause for condonation of delay.
4. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record.
5. It is better and appropriate to reproduce the basic facts in chronological order to resolve the controversy between the parties: "Respondent/plaintiff filed a suit for damages amounting to Rs.87,15,920 before the Civil Judge 1st Class, on 25-9-1997."
13. The suit was decreed on 27-8-1998 as is evident from the date of decision on the first page of impugned judgment and second page of judgment as well as Urdu order, dated 27-8-1998. The date in Urdu order as well as in the impugned judgment and decree was corrected by the learned trial Court on 18-1-1999 at the time of deciding the application filed by the appellant under Order 9, rule 13 read with section 12(2), C.P.C. In case, the aforesaid facts are put in juxtaposition, then the case was adjourned on 20-7-1998 to 25-7-1998. The order sheet reveals that it was not taken up on the said date as the Urdu order also contained the date as 27-7-1998 and the impugned judgment and decree also contained 27-7-1998. The learned trial Court had corrected the date on 18-1-1999.
14. It is settled proposition of law that the impugned judgment and decree is merged in the order of 18-1-1999 as per law laid down by this Court in "Muhammad Rafique. v. Qamar Ali and 8 others 2003 MLD 52. The appellant filed revision petition before this Court on 3-2-1999 which was coveted into appeal by this Court vide order, dated 16-7-1998, therefore, appeal/revision is not time-barred. The judgments cited by both the sides are not attracted in the present case, due to the aforesaid circumstances and facts of the case in hand. It is pertinent to mention here that the impugned judgment is in violation of Order 20, Rules 1 to 3, C.P.C. Read with Rule 2 of the Lahore High Court Rules and Orders, Vol. I, Chapter I. The relevant portion of rules is reproduced hereunder:-- (1)
15. (2)
(3) It should be pronounced in open Court after it has been written and signed.
(4) It should be dated and signed in open Court at the time of being pronounced and when once signed shall not after--wards be added, or added to save as provided by section 152 or on review.
16. "Lachmandas. v. Central Government of Pakistan" PLD 1973 SC 379; "Muhammad Yousaf. v. Allahyar"
17. PLD 1987 Lahore 101 and. "Rukan Din and others. v. Hafeez-ud-Din, etc." PLD 1962 Lahore 161. "
18. After the announcement i.e. The impugned judgment and decree, the learned trial Court has become functus officio, therefore, correction made by the learned trial Court on 18-1-1999 is not sustainable in the eyes of law. In arriving to this conclusion, we are fortified by the law laid down in "Matloob Hussain's case 1992 MLD 1675. It is also settled proposition of law when the basic -order is without lawful authority, then the superstructure shall have to fall automatically on the ground. In arriving to this conclusion, we are fortified by the law laid down by the D.B. Of this Court as well as by the Hon'ble Supreme Court in the following judgments:-- "Crescent Sugar Mills v. General Board of Revenue etc. PLD 1982 Lahore 1 and "Yousaf Ali. v.
19. Muhammad Aslam Zia, etc." PLD 1958 (Pak.) SC 104.
20. It is pertinent to mention here that the case was adjourned on 20-7-1998 for 25-7-1998. The case was not taken up on the said date as is evident from the order, dated 27-7-1998, therefore, the learned trial Court erred in law to dismiss the application of the appellant under Order 9, rule 13 read with section 12(2), C.P.C. It is settled proposition of law that nobody should be penalized by the act of Court, as per principle laid down by the Division Bench of this Court in Mian Irshad Ali case (PLD 1975 Lahore 7). The date was fixed on 20-7-1998 for 25-7-1998 whereas impugned judgment was signed on 20-7-1998 which was corrected on 15-4-1.999 by the trial Court on the application filed by appellant under Order 9, rule 13, C.P.C. Read with section 12(2), C.P.C. But this fact was not considered by the learned trial Court at the time of deciding the application of the appellant.