1992 PLP 979 (SCMR)

SHAFIUR RAHMAN, J.‑‑‑ Leave to appeal was granted to examine "inter aha: Whether filing of one appeal against the consolidated judgment is two consolidated suits relating to same or similar subject, had not satisfied the requirement of law; if not, whether mere technical controversy should not have been resolved in favour of the petitioners. Secondly: whether even if there was a technical delay in filing the second appeal, it should not have been condoned under section 5 of the Limitation Act; and lastly, whether the High Court should not have in exercise of its revisional jurisdiction, acted in aid of justice and should not have corrected the error".

2. The facts forming the background of this appeal are that Rajada, the respondent filed two civil suits (Suit No.6 of 1972 relatable to 1/6th share claimed by him in Lot No.23 and Suit No.7 ref 1972 claiming 1/6th share in Lot No.24, in land situate in Chak No.228/E.B., Tehsil and District Vehari). The two suits were consolidated by the Civil Judge and decreed by a consolidated judgment, dated 12‑1‑1974. Against this judgment disposing of the two suits, one appeal was filed before the District Judge. A copy of the consolidated judgment of the Civil Judge showing disposal of Suits Nos.6 and 7 of 1972 was filed alongwith the memorandum of appeal. The decree sheet filed was relatable to Civil Suit No.6 of 1972. In the body of memorandum of appeal before the District Judge, the title was as hereunder:‑‑ "Appeal against the judgment and decree of Mr. Nazir Ahmad Ansan, Civil Judge, Vehari dated 12‑1‑1974 whereby he decreed the suit in favour of the plaintiff by giving him share of 1/6th (joint possession) in Lots Nos?3, 24 situated in Chak No.228/E.B Tehsil Vehari, according to Mutation Nos.61 and 62 and also holding him a sharer of Lot Nos.23 and 24 mentioned above according to Mutation Nos.61 and 62."

3. At first, a deficiency in the court‑fee was noticed and was got made up. Thereafter, the arguments were heard and concluded on 30th of January, 1979. The orders were announced on 6‑2‑1979. Neither in the order sheet, nor in the judgment any notice was taken of the fact that the memorandum of appeal covered both the suits and the decree related only to Civil Suit No.6 of 1972. It proceeded to a decision. The appeal was accepted and the suit dismissed. We are told that no relief was sought against it and it has become final between the parties.

4. It was probably during the course of the hearing of appeal that the parties became aware of the fact that there was no decree‑sheet and no formal separate appeal in respect of Civil Suit No.7 of 1972. On 3‑2‑1979 appeal No.40/13 of 1979 was formally presented alongwith an application under section 5 of the Limitation Act and there an explanation for the delay was given as hereunder:‑‑

"That this fact came to the knowledge of the petitioners on 31‑1‑1979, while the arguments of the appeal earlier filed by the petitioners were heard that second appeal has not so far been filed. On coming to know of this fact, petitioners immediately applied for certified copies of the judgment and decree of the lower Court on 31‑1‑1979 and copies of the same were delivered to the petitioners on 31‑1‑1979."

5. The District Judge, in this appeal, noted the facts of the case as, hereunder:‑‑-- "It so happened that only one appeal was filed in Civil Suit No.6 of 1972 against the Judgment and decree recorded by the learned Civil Judge within the period of limitation provided for filing the appeal. The learned Advocate, however, failed to file an appeal in Civil Suit No.7 of 1972, the judgment of which is under appeal now. The appeal was preferred for the first time on 3‑2‑1979 although the impugned judgment and decree was passed on 12‑1‑1974. Alongwith the memo. of appeal an application under section 5 of the Limitation Act was also moved on the ground that the delay in filing the appeal was not wilful but was the result of illiteracy and ignorance' of the appellants/defendants who had done all in their power as instructed by their learned Advocate at Multan. The appellants came to know of 'the omission on the part of their Advocate to file the appeal in this case for the first time on 31‑1‑1979 when arguments on the other appeal in Civil Suit No.6 of 1972, were heard and realising the omission on the part of their counsel, they filed the appeal on 3‑2‑1979 after obtaining certified copy of the judgment and decree on 31‑1 1979." However, he refused to condone the' delay by reference to various decisions particularly Mst. Hajran v. Sardar Muhammad P L D 1970 SC 287.

6. A revision was taken to the High Court but it failed on the observation made by the learned Judge as hereunder:‑‑

"It is not a question of mistake but of negligence patent and gross. It could hardly be condoned after five years of rights maturing in favour of the respondent and became the final under the law. The learned District Judge in his discretion has refused to condone the delay. His order cannot be said to be illegal, without jurisdiction or suffering from any 'material irregularity. In this view of the matter, no interference is called for and this revision petition is dismissed in limine."

7. After hearing the learned counsel for the parties and going through the record, we find that in fact as the memo. off appeal filed before the District Judge shows at the very first opportunity the judgment in both the suits ha been challenged. It was not an appeal in one case and not in the other. Copy of the decree‑sheet of Civil Suit No.6 had been filed but not of Civil Suit No.7 of 1972. If at that stage by examining the memorandum of appeal corrective steps had been taken and appellants asked to file copy of the decree‑sheet and judgment separately in Civil Suit No.7 of 1972 in order to bifurcate the composite attack, no such anomaly would have resulted. The failure here and at this stage was partly of the Court and its functionary. The parties should have known better. All such technical failures could be remedied if properly attended to promptly. Even at the argument stage, the District Judge should have deferred the decision in order to achieve the same and after allowing the opportunity to the parties to file the same. There was no question of treating the appeal to be one confirming to Civil Suit No.6 of 1972 when in fact the substance of the appeal attacked the decisions in both the suits.

8. On further scrutiny of the record we find that Regular Second Appeal 237 of 1979 had been filed and is still pending in the Lahore High Court, Multan Bench. It is titled Rajada v. Allah Yar and others and is with regard to Civil Suit No.6 of 1972. The filing of a joint and a single appeal against the two properties consolidated into one could have received a more balanced and lenient view than was given to it in revision petition from which this appeal before us has come if the two matters had been heard together and decided at the same time. On a question of fact we also find that two separate decrees in the two suits were in fact prepared.

9. In the circumstances, we accept this appeal, set aside the judgment and decree of the High Court dated 5‑4‑1981 passed in Civil Revision No.68/D of 1981 and the remand these proceeding to the High Court for decision afresh alongwith Regular Second appeal No. 237 of 1979, so as to do complete and substantial justice in the matter. M.B.A /S-663/S Case remanded.