2016 PLP (C (PLC(CS))

MUHAMMAD ALAM, J.

Order dated 15-05-2014, passed by the learned District Judge Skardu, whereby, the appeal (CFA No.33/2013) was dismissed, has been challenged through this petition.

2. Proceedings on Civil Suit No.46/2009 were underway when learned trial court adjourned the said proceedings for petitioners/ plaintiffs' evidence for 16-09-2011. On 16-09-2011, petitioners/ plaintiffs' remained absent, therefore, did not produce evidence and the trial court of Civil Judge had to dismiss the suit in default. Petitioners/plaintiffs moved application (C.M. No. 48/2011) on 18-10-2011 for restoration of the suit, which was dismissed in default on 24-05-2012. Petitioners/ plaintiffs moved another application (C.M. No.37/2012) for restoration of the said petition (C.M. No.48/2011), which also was dismissed on 07-09-2013, holding that the same was time barred. On this, CFA No.33/2013 was filed in the District Court Skardu which also was dismissed, holding that the same was time barred. Feeling aggrieved from the said order of the first appellate court, petitioners/plaintiffs filed petition in hand. For ready reference, I reproduce para No.3 of the impugned order, which is the operative part of the impugned order, which goes as under:-

3. Arguments heard. Record of the case perused. I have given my considerations. Instant appeal is hopelessly barred by time and entries made in the certified copy of the impugned order are found to be forged and incorrect. Learned trial court has passed the order on 07-09-2013 and appellants have filed instant appeal on 25-11-2013. Learned counsel of the appellant submitted that they have filed application for issuance of copy on 07-09-2013 and copy supplied to them on 28-10-2013 hence instant appeal is well within time. Reader of the trial court who had issued the copy was called today with the relevant record. Original application for issuance of copy bears the date 14-10-2013. Reader of the learned trial court explained his position that he mistakenly entered the date of application 07-09-2013. He admitted his mistake and his statement in this regard taken and same is placed on file. It is on record that application for issuance of copy was presented before the court on 14-10-2013 and appellant has received the copy on 28-10-2013 and filed the appeal on 25-11-2013. Period for filing appeal under Order XLIII of C.P.C. is 30 days under Article 152 of Limitation Act whereas appellants have filed the appeal after a period of two months and nineteen days after limitation and there is no application for condonation of delay."

3. I find mention of statement of Reader of the civil court, recorded by the first appellate court, in the above reproduced part of impugned order, but I did not find any such statement on file. Moreover, the learned first appellate court has clearly written that application for issuance of copy of order dated 07-09-2013 was filed on 14-10-2013, i.e., after about one month and 7 days of the said order. This shows that the Reader of the civil court malafidely wrote dated 07-09-2013 as date of presentation of the petition for copy of order dated 07-09-2013 of civil judge, just to bring the appeal within time. Learned first appellate court has, anyhow, not taken any disciplinary action against the Reader of the civil court.

4. In my opinion, avoiding of the learned first appellate court from taking any disciplinary action against Reader of the civil court, who issued a wrong copy of order dated 07-09-2013 of the trial court, is an irregularity in the proceedings of the first appellate court as well as of the learned trial court. Moreover, while recording statement of Reader of the civil court, the learned first appellate court did not afford chance to the parties for cross-examining the said Reader. So the impugned order is bad in the eye of law and is result of above referred irregularities.

5. I accept this revision petition, set aside the impugned order and remand the case back to the first appellate court for passing orders afresh, duly recording statement of the Reader of the civil court/trial court, who wrote 07-09-2013 as date of presentation of petition for copy of order dated 07-09-2013 of the said court, instead of 14-10-2013 as date of presentation of the petition for copy of said order, if not already recorded. Moreover, the first appellate court is directed for taking disciplinary action against the said Reader. Case remanded to the first appellate court. This file be consigned to record. ZC/127/GB Case remanded.