2014 PLP 2667 (YLR)

ABDUL LATIF KHAN, J.

The appellant filed this regular first appeal against the judgment and order dated 6-4-2010 passed by the learned Additional District Judge/Izafi Zila Qazi 1st, Swat, whereby the appeal of the appellant against the judgment and decree dated 10-12-2009, passed by the learned Civil Judge/Illaqa Qazi-VII, Swat has been dismissed.

2. Arguments of learned counsel for the parties heard and record perused with their able assistance.

3. As perusal of the record reveals that respondent filed a suit against the appellants for recovery of Rs.50,00,000 as damages, which was decreed to the extent of Rs. 200,000 only. Feeling aggrieved, the appellants preferred an appeal before District Judge on 6-1-2010, which was dismissed on merits by the Court of appeal on 6-4-2010. Against the judgment/order of Learned Additional District Judge/Izafi Zila Qazi 1st Swat C.R 841/2010 filed by the appellant which has been treated as R.F.A. No. 278 of 2010.

4. The moot question in the instant case is that the value assessed in the plaint by the plaintiff, would remain intact irrespective of the amount decreed and as the amount assessed for the purposes of jurisdiction and court-fee would remain intact and forum for appeal has to be chosen in view of amount assessed and not the amount decreed. The apex Court has observed in this respect in case of "Muhammad Nawaz v. Sher Muhammad reported as PLD 1987 SC 284 as following:-- S. 18-Appeal

Forum of

Determination of decree passed in suit of determined and fixed jurisdictional value

Held

Appeal being competent from decree (or part thereof) and not from finding on certain issue, forum of appeal not to be altered merely because of aggrieved party seeking to challenge decision of original Court in respect of claim regarding improvements made in subject-matter of sale.

5. This Court in case of Gul Zaman v. Muhammad Shafique" reported as PLD 1989 Peshawar 247 observed:-- "Jurisdictional value

Forum of appeal-Determination of original valuation as fixed in the plaint to be effective and valid to determine forum of appeal, irrespective of the fact that the sale price finally fixed by the Court exceeds the value given in the plaint

Valuation of suit property thus fixed in plaint is not provisional but permanent and same cannot be changed with fixation of its market value or sale price at higher rate

Jurisdictional value fixed in plaint being Rs. 90 (Ninety), same would remain intact for ascertaining the forum of appeal

Difference between the sale price fixed by the Court and the one prayed for in the appeal to be fixed by the Court would not change the valuation shown in the plaint

First Appeal before High Court, in a case wherein jurisdictional value fixed in plaint was Rs. 90 (Ninety) was thus not competent and accordingly appeal was returned to appellant for presentation to a proper forum."

6. Now the question that appellant has filed the appeal before the District Judge despite knowledge that amount assessed was Rs.50,00,000 and amount Rs. 200,000 decreed by the Trial Court would be considered for the purposes of determination of forum of appeal and has chosen wrong forum and to appreciate the question whether the time consumed before wrong forum in perusing the remedy is condonable, section 14 of the Limitation Act is reproduce for conveyance as under:-- Section 14: Exclusion of time of proceeding bona fide in Court without jurisdiction.

(1) In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceedings, whether in a Court of the first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which from defect of jurisdiction, or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding whether in a Court of first instance or in a Court of appeal against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it. Explanation I.

In excluding the time during which a former suit or application was pending, the day on which that suit or application was instituted or made, and the day on which the proceedings therein ended, shall both be counted. Explanation II.

For the purpose of this section, a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding. Explanation III.

For the purposes of the section misjoinder of parties or of causes of action shall be deemed to be cause of like nature with defect of jurisdiction.

7. A look of this section, would lead to conclusion that time spent in pursing the proceedings before wrong forum would not be excluded and to invoke the provision of section 5 of the Act ibid sufficient cause has to be shown which means circumstances beyond control of party, in case appeal is barred by time and cannot be readily available to the appellant, as the conditions precedent in section 14 and section 5 are different and cannot be equated. The powers of Court under Section 5 are discretionary in nature, whereas, exclusion of time under section 5 is mandatory and that too subject to conditions of "Good faith" and "due diligence". The apex Court in case of Dr. Syed Sibtain Raza Naqvi v. Hydrocarbon Development and others" (2012 SCMR 377) observed that exclusion of time spent before wrong forum could not be excluded for the purpose of filing an appeal, and for guidance the relevant observations are reproduced as under:-- "(8) On perusal of section 14 of the Act, it appears that time spent in pursuing the proceedings before wrong appellate forum, cannot be excluded, for the purposes of filing of an appeal and in case appeal is barred by time the provision of Section 5 of the Act can only be invoked, that too, by showing the sufficient cause. (9) The two expressions "due diligence" and "good faith" in section 14 do not occur in section 5 of the Act which enjoins only "sufficient cause". The expression "due diligence" and "good faith" used in section 14 of the Act cannot be equated with the expression of "sufficient cause" used in section 5 of the Act. If it were so, the Legislature could have used identical expressions in both sections particularly when "good faith" has been defined in section 2(7) of the Act. The power to condone the delay and grant an extension of time under section 5 of the Act is discretionary, whereas under section 14 of the Act, exclusion of time is mandatory on the satisfaction of the condition prescribed in it. (10) The principle that appeal is continuity of original proceeding before the appellate Court, as held in the cases of Sherin v. Fazal Muhammad (1995 SCMR 584) and Tasneem Ismail v. Wafi Associates (2007 SCMR 1464), is of no help to the petitioner. The law of limitation takes away the rights of parties, the same must be construed liberally, but without any violation to the intent of legislature. Limitation Act is to be read as a whole and its provisions are to be construed harmoniously. (11) On reading section 14 of the Act along with section 2(10), it appears that legislature specifically excluded the appeal or an application from the purview of "Suit". We left no doubt in our mind that benefit of section 14 of the Act cannot be extended to exclude the time consumed in prosecuting an appeal before wrong forum having no jurisdiction, for the purposes of filing an appeal before a forum having jurisdiction."

8. Another important aspect of the case is that appellant has not raised any objection and even the respondent kept mum till the time the appeal was finally decided by the Court of appeal on merits, which is an order "coram non judice" as section 18 of Civil Code Order 1961 limits the appellate jurisdiction of District Judge beyond Rs.10,00,000 and at least Court ought to have taken pain to look into the matter, however, even order passed without jurisdiction shall be called in question within time, but the petitioner even after decision has not acted in "good faith" and with "due diligence" and civil revision in this Court which was later on converted in R.F.A on account of wrong assumption of jurisdiction by the District Judge and, as such, the appellant remained negligent at every stage and cannot be construed liberally as it would violently oppose the intent of legislature. To meet the issues section 18 Civil Procedure Code Order, 1961 is reproduced as under:-- "Place of institution of suit where local limits of jurisdiction of Courts are uncertain

(1) where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more Courts any immovable property is situate, any one of those Courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and thereupon proceed to entertain and dispose of any suit relating to that property, and its decree in the suit shall have the same effect as if the property were situate within the local limits of its jurisdiction. Provided that the suit is one with respect to which the Court is competent as regards the nature and value of the suit to exercise jurisdiction. (2) Where a statement has not been recorded under subsection (1) and objection is taken before an appellate Court or revisional Court that a decree or order in a suit relating to such property was made by a Court not having jurisdiction where the property is situate, the appellate or revisional Court shall not allow the objection unless in its opinion there was, at the time of the institution of the suit, no reasonable ground for uncertainty as to the Court having jurisdiction with respect thereto and there has been a consequent failure of justice."

9. The apex court in the case of "Sarfraz v. "Muhammad Aslam Khan and another" 2001 SCMR 1062 observed as under:-- Proceedings against void order

Limitation

Aggrieved person is required to initiate proceedings within reasonable time against a void order

After lapse of considerable time when the order/ decree under attack in fact achieved finality, the jurisdiction of Court cannot be invoked.

10. The appellant has failed to show any explanation or sufficient cause to construe the provisions of Limitation Act, in his favour liberally, as it takes away the right of other party, which is against the intent of law. For the aforementioned reasons the instant appeal being bereft of merit stand dismissed. MH/370/P Appeal dismissed.