2006 PLP 504 (SCMR)

Laws Cited

Representation

• Muhammad Munir Peracha, Advocate Supreme Court for Appellants.
• Gulzarin Kiani, Advocate Supreme Court for Respondents.
• Date of hearing: 23rd January, 2006.
• 4. While the C.P.L.A. was filed by Mr. Anwar H. Mir, learned Advocate-on-Record Mr. Muhammad Munir Peracha, learned Advocate Supreme Court was engaged later, who moved a C.M.A. on 21-1-2004 for conversion of C.P.L.A. into direct appeal on the premise that direct appeal would be competent under Article 185(2)(d)(e) of the Constitution and C.P.L.A. had been wrongly filed on account of the practice that in suits for pre-emption, irrespective of the value of its subject-matter, where the valuation was less than Rs.50,000 C.P.L.As. were invariably filed and entertained by this Court. It was only after the publication of the judgment in Fateh Muhammad case (supra) that the learned counsel thought it his duty to apply for conversion of C.P.L.A. into appeal. This fact was pointed out before the Court and this Court on 22-3-2004 directed the office to process the prayer for conversion of C.P.L.A. into appeal. Meanwhile, Mr. Peracha, learned Advocate Supreme Court also filed an application for condonation of delay on 28-1-2004 under the provisions of Order XXXIII, rule 6 of the Supreme Court Rules, 1980, though such application would lie under Order XII, rule 2 of the said Rules. Accordingly the office noted that by reckoning the period of limitation from the date of judgment and decree of the High Court direct appeal would be barred by 29 days. Upon notice, learned counsel for the respondent has filed objections in the shape of reply to the prayer for condonation of delay, heavily relying upon the judgment in Fateh Muhammad's case (supra).
• 5. We have heard Messrs Muhammad Munir Peracha and Gulzarin Kiani, learned Advocates Supreme Court for the parties on' the limited question of bar of limitation. It is earnestly contended by Mr. Peracha that it was only after the judgment in Fateh Muhammad case that he realized the weakness in the case of the petitioners, which persuaded him to move an application for conversion of the petition into appeal followed by an application for extension of time in tiling such appeal beyond the period of limitation. Learned counsel has supplemented his submission with reference to the constant practice of this Court in entertaining C.P.L.As. arising out of suits for pre-emption in which valuation of the subject-matter of the suits is somewhat different than the actual market value of the property in suit. Learned counsel vehemently urged that it was bona fide error on the part of the petitioners' Advocate-on-Record who filed this petition under the misconception that a C.P.L.A. would lie from the judgment of the High Court as the valuation of the subject-matter of the suit was only Rs.6,750. It was only after the authoritative judgment of this Court coming to his knowledge that he moved the application with a prayer for condonation of delay.
• 6. Conversely, Mr. Gulzarin Kiani, learned Advocate Supreme Court for the respondent vehemently opposed and controverted the prayer for conversion of the petition into appeal and extension of time for preferring such appeal before this Court. He pointed out that the petitioners were grossly negligent in prosecuting their remedy as they applied for certified copy of the judgment of the High Court after 31 days; that the judgment in Fateh Muhammad's case was rendered by this Court on 30-1-2003 and that the conduct of the petitioners reflected gross negligence on their part in prosecuting their remedy before this Court. Learned counsel says that there is no material on the record of the case that there was a consistent practice to the effect that this Court had been entertaining C.P.L.As. in cases arising out of pre-emption suits decided by the High Court irrespective of valuation of the subject-matter of the dispute in the Court of first instance.
• 7. We have carefully considered the submissions of the learned counsel in the peculiar facts and circumstances of the case in the perspective of the judgment rendered in Fateh Muhammad's case. It is amply borne out from the record of C.P.L.A. that office of this Court had entertained the same without any objection or protest in the normal course of business. It was never pointed out by the office that petition for leave to appeal would not lie or that direct appeal was barred by 29 days. Silence on the part of the office clearly tends to show that office bona fide believed that C.P.L.A. would lie before this Court from the judgment of the High Court even though it had reversed the judgment of the Appellate Court because valuation of the suit in the plaint at Rs.6,750 was much less than Rs.50,000. Adverting to the submission of Mr. Kiani that there is no material on the file of this appeal that such practice was prevailing in office, we cannot remain oblivious of the practice as prevailing in office, also indicated by the present case in which office did not raise any objection nor called upon the Advocate on-Record for the petitioners to remove such objection by moving an application for extension of time, which is normally done in all such petitions. It is true that the petitioners applied for certified copy of the judgment of the High Court beyond the expiry of 30 days but the fact remains that the petitioners and their Advocate-on-Record remained under the bona fide impression that 60 days time was available for preferring a C.P.L.A. before this Court. In this view of the matter, element of negligence and/or carelessness can hardly be attributed to petitioners or their Advocate-on-Record. It was the engagement of Mr. Muhammad Munir Peracha, learned Advocate Supreme Court and his knowledge of law that prompted him to take steps for conversion of the C.P.L.A. into appeal and seeking extension of time in filing such appeal beyond the expiry of prescribed period. We do not agree with the contention of Mr. Kiani that the conduct and attitude of the petitioners reflected gross negligence or contumacious disregard for the provisions of law relating to the period of limitation for filing an appeal before this Court. In our considered opinion it was bona fide mistake of fact and misconception of law as the situation was not certain till the judgment was delivered by this Court in Fateh Muhammad's case. Mr. Kiani has also cited Zafar Iqbal Hameed Khan v. Ashiq Hussain 2005 SCMR 1371, in which prayer of conversion of petition for leave to appeal into direct appeal and condonation of delay was declined. With Abe' assistance of learned counsel, we have very carefully gone through this report. The principle laid down in the said case is not applicable to the present facts. There, it was held that this Court was not obliged to allow the conversion of petition into appeal if the litigant was negligent or careless, and it was found as a fact that the petitioner in that case was negligent because, notwithstanding an objection by the office to the maintainability of the petition, no effort was made to remove the objection, but rather the petitioner had insisted upon the maintainability of the petition. The Court also noted that the request for conversion was being made after a delay of five years. In the present case there is a delay of only 29 days and the learned counsel for the petitioner realizing the error in view of the judgment in Muhammad Inayat v. Fateh Muhammad applied in writing for conversion of the petition into appeal and the office had not recorded any objection to the maintainability of the petition.

Headnotes / Summary

Judgment & Decree