2016 PLP 66 (CLCN)

SHAHID BILAL HASSAN, J.

Judgment and decree dated 08.01.2005 pronounced by learned Addl. District Judge, Multan in an appeal filed against judgment and decree dated 16.06.2004 passed by learned Civil Judge, Multan whereby suit of the respondent for recovery of damages on the basis of malicious prosecution was dismissed, has been called in question by the petitioner before this Court, as appeal has been accepted and suit has been remanded to the learned trial Court for decision afresh in accordance with law.

2. Brief facts culminating into filing of the instant civil revision may be summed up as such that the respondent instituted a suit for recovery of Rs.24,000/- as damages for malicious prosecution against the petitioner. The suit was contested by the petitioner by way of filing written statement. The petitioner moved an application under Order VII, Rule 11 of the C.P.C. along with the written statement on the ground that the suit was not maintainable being barred by limitation. The said application was resisted by the petitioner. The learned trial court after hearing arguments of both the sides, vide judgment and decree dated 16.06.2004 accepted the application of the petitioner and dismissed the suit of respondent. The respondent being aggrieved preferred an appeal before the learned appellate court, which was ultimately allowed vide judgment and decree dated 08.01.2005 and suit was remanded to the learned trial court for decision afresh in accordance with law.

3. Being aggrieved of the impugned judgment and decree dated 08.01.2005, the petitioner has filed the instant civil revision inter alia on the grounds:- That the impugned judgment and decree is bad in the eyes of law, being based on wrong interpretation of the statute governing the limitation matter; That the suit of the respondent was barred by time, but while allowing the appeal, miscarriage of justice has been committed; That the learned appellate Court has wrongly exercised the jurisdiction vested in it; That material illegality and irregularity has been committed by the learned appellate Court while passing the impugned judgment and decree; hence, the same is not sustainable in the eyes of law and liable to be set aside; resultantly, the suit of the respondent is liable to be dismissed while invoking provisions under Order VII, Rule 11 of C.P.C.

4. Learned counsel for the petitioner during his arguments while reiterating the grounds urged in the civil revision has prayed for acceptance of this civil revision, setting aside of the impugned judgment and decree dated 08.01.2005 with further prayer to dismiss the suit of the respondent by restoring judgment and decree dated 16.06.2004 passed by learned trial Court.

5. On the other hand, the respondent appeared on 12.11.2013 and sought adjournment so as to engage his counsel, but again on 18.12.2013 and 06.03.2014 failed to produce his counsel; therefore, this civil revision is going to be decided after hearing the learned counsel for the petitioner and perusing the record, made available before this Court.

6. Heard.

7. Question of sufficient cause was dealt with by Honourable Supreme Court of Pakistan in case of "Abdul Ghani v. Ghulam Sarwar" (PLD 1977 Supreme Court 102) and while dealing with it, it was held at page 107 as follow:- "it is true that this section does not define sufficient cause but the meaning of this expression is too well known to need recapitulation, and we would only refer here to the observations of Kaikaus, J. on this question in Ata Ullah v. Custodian Evacuee Property (1). "Under section 5...... there had been defined as circumstances beyond the control of the party and I do not know of any case wherein this definition of sufficient cause had been rejected." We re-affirm these observations and we may explain here that the burden is on the appellant to prove that his delay in filing his appeal was on account of circumstances beyond his control, because, as observed by Sir George Rankin in Kunwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali and others (2).... In applying section 5 of The Limitation Act), the analogy of section 14 (which applies only to suits) is an argument of proceedings "prosecuted in good faith", therefore in order to make out sufficient cause under section 5 an appellant must prove that he had acted in good faith in presenting his appeal in the wrong Court. Good faith has been defined in clause (7) of section 2 of The Limitation Act, 1908, as: "'good faith': nothing shall be deemed to be done in good faith which is not done with due care and attention:" Now if an appellant proves that he filed his appeal in the wrong Court despite due care and attention it means that the presentation of the appeal in the wrong Court was on account of circumstances beyond his control."

8. According to Article 23 of The Limitation Act, 1908, suit for compensation on the basis of malicious prosecution can be instituted within one year, when the plaintiff is acquitted, or the prosecution is otherwise terminated. According to section 12(1) of The Limitation Act, 1908, while computing period of limitation prescribed for a suit, the day on which the judgment complained of was pronounced and time requisite for obtaining a copy of order/judgment/decree shall be excluded. In the present case, the FIR was lodged on 27.02.2001, in which the respondent was discharged; afterwards, the petitioner filed a private complaint on 06.09.2001, which was dismissed on 24.09.2002 due to non-prosecution, meaning thereby the limitation would start from the date of dismissal of the private complaint i.e. 24.09.2002, the respondent had one year to file the suit from the said date. The respondent admittedly submitted application for obtaining certified copies on 01.02.2003 and same were delivered to him on 09.07.2003, after obtaining the certified copies, he instituted the suit on 19.12.2003; so the time taken from 01.02.2003 to 09.07.2003 i.e. five months and eight days shall be excluded and as such the day on which judgment was pronounced has to be excluded as elaborated in section 12(v) of the Limitation Act, 1908; therefore, the learned appellate court has rightly interpreted the law on the subject and no illegality or irregularity and even wrong exercised of jurisdiction has been committed; rather no jurisdictional defect can be pointed out at the instance of petitioner. Though one may reach to a different conclusion but substitution of opinion is not permissible in revisional jurisdiction. In this regard reliance is placed on case of Hakim Ud Din through L.Rs. and others v. Faiz Bukhsh and others 2007 SCMR 870, in which it has been held that: "It is established proposition of law that finding on questions of law or fact, howsoever, erroneous the same may be regarded by a Court in exercise of its revisional jurisdiction under section 115, C.P.C., unless such findings suffer from jurisdictional defect, illegality or material irregularity."

9. Pursuant to above, revision petition in hand being devoid of force is hereby dismissed. ARK/G-31/L Revision dismisse