2014 PLP 238 (MLD)

MUHAMMAD AZAM KHAN, C.J.

This direct appeal under section 42(11)(d) of the AJ&K Interim Constitution Act, 1974, has been filed against the judgment and decree of the High Court dated 28th March, 2008, whereby appeal filed by the appellant has been dismissed.

2. The appeal was filed on 23rd May, 2008. On 24th March, 2011 while hearing the arguments, a preliminary objection was raised, thus a point was formulated to the effect that whether a direct appeal in this Court under the Constitutional provision is competent when the value of subject-matter is not less than Rs.50,000 and the High Court has not altered, varied or set aside the judgment of the Court immediate below. The case along with another appeal, having involved same proposition, was referred to the larger bench while formulating the following legal point:-- "Whether direct appeal is competent when the value of the suit in the original Court or in appeal is not less than Rs.50,000 or direct appeal can be filed when the value of appeal is not below Rs.50,000 and the High Court modifies, set asides or rescinds a judgment." The appeal was heard by full Court on the point formulated on 24th March, 2011 and the judgment was announced on 29th April, 2011. It was held that a direct appeal in this Court under section 42(11)(d)(e) is competent only when the value of the suit in the original Court or in appeal is not less than Rs.50,000 (or direct appeal can be filed when the value of the appeal is not below Rs.50,000) and the High Court has modified, set aside or altered the order/judgment of the Court immediate below. In the present case the judgment was announced in presence of the learned counsel for the parties on 29th April, 2011. The appellant moved an application for treating the appeal as P.L.A.

3. Sardar Muhammad Azam Khan, the learned counsel for the appellant, argued that the direct appeal in this Court was filed in misconception on the basis of judgment of this Court titled Muhammad Khan and another v. Muhammad Shafique and another 1999 YLR 1308, wherein it was observed by this Court that direct appeal in this Court is competent when the value of the subject matter in the lower Court and the High Court is not less than Rs.50,

000. He referred to following cases:-- (1999 SCMR 319), (2003 SCMR 319), (1997 SCMR 351), (2001 SCR 150), (2008 SCR 1993), (PLJ 1991 SC 1976)(sic), (PLD 1996 SC 1) and (1999 CLC 59). He argued that it was a bona fide mistake which culminated on the strength of judgment of this Court referred to above. He requested for treating the appeal as P.L.A.

4. While opposing the application, Raja Hassan Akhter, the learned counsel for the respondents, argued that the application has been filed beyond the period of limitation. The original judgment of the High Court was announced on 23rd March, 2008 and the appeal in this Court was filed on 23rd May, 2008. The Court formulated the point whether direct appeal is competent or not when the High Court has not altered or modified the judgment of the Court immediate below. This Court resolved the point vide order dated 29th April, 2011. The application for treating the appeal as P.L.A. was filed in this Court on 29th August, 2011 after four months of the date of announcement of judgment on the point formulated vide order dated 24th March, 2011, while the limitation for filing P.L.A. against the judgment of the High Court is sixty days. If the limitation is treated to have started from the date of announcement of order dated 29th April, 2011, even then the P.L.A. is time barred. The application therefore merits dismissal.

5. We have heard the learned counsel for the parties and perused the record. The record reveals that the direct appeal against the judgment of High Court dated 28th March, 2008 was filed on 23rd May, 2008 within the prescribed period of limitation. During the course of arguments on 24th March, 2011, a preliminary objection was raised from the opposite side and we formulated a point to the effect whether the direct appeal under section 42(11)(d)(e) of the AJ&K Interim Constitution Act, 1974 is competent or not when the value of the subject matter in the lower Court and the appellate Court is not below Rs.50,000 and the High Court has not altered, varied or set aside the judgment of the Court immediate below. A full bench of this Court reached the following conclusion:-- "We, therefore, hold that the intention of the legislature is clear on the point that if the High Court doesn't vary, alter or set aside the judgment of the Courts below, a direct appeal to the Supreme Court is not competent, although the amount or value of the subject-matter is more than fifty thousand rupees." The judgment on the aforesaid point was delivered on 29th April, 2011 in presence of learned counsel for the appellant. The appellant has moved an application for converting the appeal into P.L.A. on 29th August, 2011 after a period of four months, while limitation for filing P.L.A. in this Court is sixty days from the order/judgment of the High Court. If for the sake of arguments we consider the argument that the appellant was misled by the above referred judgment of this Court, then too it was enjoined upon him to file application for treating the appeal as P.L.A. soon after the announcement of judgment on 29th April, 2011 or within the period of sixty days. The learned counsel for the appellant could not furnish any explanation of filing application after four months of the announcement of the judgment. The appellant is negligent, therefore, not entitled for condonation of delay. Even otherwise the appellant has not moved any application for condonation of delay. If we treat the period of limitation from the date of announcement of judgment by this Court, even then the application has been filed more than two months beyond the period of limitation. The application is therefore dismissed.

6. We have also gone through the authorities referred to by the learned counsel for the appellant. All the authorities referred to by the learned counsel for the appellant were considered by full Court while recording the judgment on legal point.

7. The appellant filed appeal in the High Court from the order of lower Court which was dismissed and direct appeal was filed in this Court. The High Court has not altered the judgment of the Court immediately below. Even otherwise the judgment of Muhammad Khan's case, relied upon by the learned counsel for the appellant, is not helpful to the case of appellant because in the referred case the High Court had altered the judgment of the lower Court. The facts of the case are different and not applicable to the case in hand.

8. The result of above discussion is that direct appeal was not competent. The same is hereby dismissed with no order as to costs. HBT/91/SC(AJ&K) Appeal dismissed.