1997 PLP 732 (MLD)

‑‑‑‑O.VI, R.1‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.2(1)(c)‑‑‑Pleadings‑‑ Evidence‑‑‑Pleadings could not be substitute for evidence; each party must succeed on the strength of its own case and could not rely upon weakness of other side‑‑‑Where evidence on record had been appreciated by Courts below, pleading could not be deemed to have been substituted for evidence or that judgment or decree were passed on basis of weakness of other side. Zahoor Ahmed Arain for Applicants This is a civil revision application under section 115 of the Code of Civil Procedure directed against the judgment and decree, dated 14‑5‑1996, passed by the learned IV Additional District Judge in Civil Appeal No.178 of 1995 (M/s. Ainy Builders & Company and 2 others v. Hyderabad Municipal Corporation) whereby judgment and decree passed in Civil Suit No. 120 of 1989 (Hyderabad Municipal Corporation v. M/s. Ainy Builders & Company and 2 others) were affirmed, hence this revision. The brief facts of the case are that respondents/plaintiffs filed a suit for recovery of Rs.2,53,550 against the applicants/defendants on account of outstanding dues in respect of balance of contractual amount, (ii) 3 % income‑tax on contractual amount, and (iii) salaries of Tapadars. The said suit was contested and was decreed on 26th September, 1995 to the extent of Rs.2,24,

190. The applicants/defendants/appellants preferred Civil Appeal No. 178 of 1995, which was heard by IV Additional District Judge, Hyderabad, and the same was dismissed on 14‑5‑1996 on the ground that appeal was filed beyond the prescribed period of 30 days. I have heard Mr. Zahoor Ahmed Arain, learned counsel for the applicants and perused the impugned judgments and decrees passed by the Courts below and the record and proceedings of Suit No. 120 of 1989. Learned counsel for the applicants has urged that the First Appellate Court has erred in dismissing application under section 5 of the Limitation Act, when sufficient cause for condonation of delay was shown by the applicants/appellants and thereby the First Appellate Court has not exercised the jurisdiction vested in it under the law. He has further argued that there was no evidence before the trial Court to decree the suit but it was decreed, therefore, judgment and decree passed were without jurisdiction hence there would be no question of limitation for the purpose of filing appeal against the said void judgment and decree. Learned counsel for appellants argued that even if the appeal was time‑barred by 28 days the said delay could have been condoned as sufficient cause was shown in the application filed under section 5 of the Limitation Act. He has placed reliance upon Syed Nazir Hassan v. Settlement Commissioner, Lyallpur and another PLD 1974 Lah. 434 at p.440 wherein the learned Judge in Chambers held that on the basis of void orders if subsequent orders have been passed by the same authority or other authorities, the whole series of such orders together with superstructure of rights and obligations built upon them, would fall to the ground because such orders would have little legal foundation as the void order on which they are founded. (ii) Rahim Bakhsh and others v. Mst. Pathani and others PLD 1985 SC 324(b) at page 526 wherein it was held that delay regarding time consumed between preparation of copies and its delivery could be condoned but each day after expiry of period of limitation if not satisfactorily explained, appeal would be liable to be dismissed as time‑barred. (iii) Noor Muhammad v. Judge, Family Court and another PLD 1989 Lah. 31(c) at page 33, wherein the learned Judge in Chambers held that averments made in pleadings would not be substituted for evidence so also assertion made in the written statement could not be read 2 evidence unless defendant deposed in the Court supporting the averments made in the written statement. (iv) Muhammad Ijaz v. Mst. Farhana Farooq and 2 others 1988 MLD 1541(c) at page 1543, wherein the learned Judge in Chambers observed that pleadings are not evidence, cases are to be decided on the basis of evidence produced before the authority who has to decide the mattered (iv) Abdul Mannan and another v. Mir Nawaz Khan and 4 others 1989 CLC 2277(a), wherein the learned Judge in Chambers held that party cal succeed on the strength of his own evidence and could not avail of the Weakness of the opponent. The facts of the above cases cited by the learned Counsel for the applicants are quite different and distinguishable to the facts of the instant case and have no bearing on the points involved in this revision application. It is not the case of the applicants that the trial Court had no jurisdiction to entertain and dispose of the suit. The contention of the learned counsel for the applicants is that as there is no evidence, the suit should have been dismissed, meaning hereby that there has been no proper appreciation of evidence by the learned Senior Civil Judge in passing the judgment and decree against the applicants/defendants. In the instant case, learned Civil Judge has considered the evidence of A. Hakim Exh.106, Saeed .Ahmed Exh.43 and Exh.108 and evidence of applicants/defendants Abdul Ghaffar Exh.121 and has also considered the documents Exh.107, Exh.44 to Exh.48, Exh.49/1 to Exh.49/5 and Exh.122/1 to 73, therefore, it could not be said that there was no evidence before the trial Court to pass judgment and decree. Admittedly the learned Senior Civil Judge had jurisdiction who had exercised the same and judgment and decree were passed after appreciating the evidence on record. In the circumstances, the judgments and decrees passed could not be said to be void, so as to say, that there would be no question of limitation it preferring the appeal. There is no cavil about the fact that pleadings could not be substituted for evidence and further that each party has to succeed on the strength of his own evidence and has not to rely upon the weakness of other side. In the instant case, there is evidence on record adduced by the parties Which has been appreciated by the Court below, therefore, it could not be said that the pleading has been substituted for evidence or the judgment and decree have been passed on the basis of weakness of other side. The judgment was passed on 26‑9‑1995, while application for certified copies of judgment and decree was made on 2‑10‑1995, so also costs and stamps were paid and supplied on the same date, which copies were prepared on 10‑10‑1995 and true copies of judgment and decree were delivered on 23‑10‑1995 and the First Appeal No. 128 of 1995 was filed on 5‑12‑1995. Admittedly, the applicants/defendants preferred an appeal which was time‑barred by 28 days and the cause shown in the application under section 5 of the Limitation was that the applicants/defendants Abdul Ghaffar was having low backache which ailment was not considered to be not sufficient cause within the meaning of section 5 of the Limitation Act. The applicants/defendants have not accounted for each day's delay in preferring appeal after prescribed period of limitation expired. In the instant case, Ahmed Din applicant No.3 is also partner of the applicant's firm but nothing has been said as what prevented him from filing the appeal in time if the applicant Abdul Ghaffar was ailing. The ailment of applicant shown was not so serious that during the period of his ailment he could not have filed appeal either himself or through his partner or his counsel considering also the fact that when the applicant could make application for true copies of judgment and decree for which he supplied stamps, paid cost for certified true copies of judgment and decree and took the delivery of the true copies then how applicant was not in a position to file appeal in time at least soon after the copies were ready or after the copies were obtained. The valuable' right has accrued to the respondents because of lapse of time on the part of the applicants, who have failed to account for each day's delay, therefore, the said valuable right cannot be taken away on the filmsy ground of alleged ailment which was not such which could have prevented the applicants from pursuing their remedy in time in the circumstances of the case. Reference is made (i) Muhammad Hussain and others v. Settlement and Rehabilitation Commissioner and others 1975 SCMR 304; (ii) Province of East Pakistan v. Abdul Hamid Darji 1970 SCMR 558; (iii) The West Pakistan Agricultural Development Corporation and 2 others v. Soomar and 2 others PLD 1984 Kar. 190; (iv) Rafiq Ahmed v. Ghulam Rasool and others 1983 SCMR 17 and (v) Jamila Khatoon v. Tajunnisa PLD 1984 SC

208. In view of the foregoing facts and case‑law, it would appear that applicant has not pursued the proceedings diligently with the result appeal was preferred after delay of 28 days of prescribed period of limitation and no sufficient cause for the condonation of delay for each day's delay has been shown, therefore, there could not be said to be any illegality or misreading of evidence on record warranting interference in the revisional jurisdiction of this Court. Accordingly, this revision has no merits which is hereby dismissed in limine alongwith listed applications. A.A./A‑73/K Revision dismissed.