2000 PLP 781 (CLC)

M. JAVED BUTTAR, J. This first appeal is directed against the order/judgment and decree dated .6‑11‑1995 of Civil Judge 1st Class, Sargodha, whereby the appellant's suit for possession through pre‑emption was dismissed.

2. The relevant facts are that the appellant instituted a suit for possession through pre‑emption against the respondent before the Civil Court at Sargodha on 13‑10‑1993 which was contested by the respondents through their written statement. Learned trial Court framed the necessary issues on 14‑6‑1994. On 17‑7‑1995 an amendment was made in Issue No.5 with the consent of the learned counsel for the parties and the hearing was adjourned to, 18‑9‑1995 for recording of the plaintiff's/appellant's evidence. It was again adjourned from 18‑9‑1995 to 18‑10‑1995 on the request of the plaintiff due to the non‑availability of his witnesses. On 18‑10‑1995, the defendant/ respondent No. l gave an application in writing on behalf of himself and on behalf of the other defendants for an adjournment due to the non‑availability of his counsel. The request was granted and the hearing of the suit was adjourned to 6‑11‑1995 for recording the plaintiff's evidence. The order, dated 18‑10‑1995 shows the presence of the plaintiff's counsel. On 6‑11‑1995 the appellant/plaintiff gave an application through his counsel for an adjournment on the ground that one of the witnesses, namely, Qureshi Muhammad Aslam was not available as his uncle had died on the same day whereas his other two witnesses, namely, Muhammad Feroze and Malik Muhammad Afzal were present in Court. The application was duly supported with an affidavit. On the other hand, to counter the plaintiff's request, the defendants also gave an application on 6‑11‑1995 for the dismissal of the suit due to the non‑availability of the whole of‑the plaintiff's evidence. The Civil Judge 1st Class, Sargodha, vide impugned order/judgment and decree dated 6‑11‑1995, rejected the appellants' application for adjournment, accepted the respondents'/defendants' application and dismissed the suit forthwith under Order 17, Rule 3, C.P.C. Hence, this appeal.

3. The trial Court rejected the appellant's/plaintiff's application for adjournment on the ground that the application does not bear the signature of the plaintiff and merely accompanies the affidavit of the, general attorney of the appellant and it was concluded that whole of the plaintiff's evidence was not present. The trial Court also observed that on 18‑10‑1995 the plaintiff was given the last opportunity to produce his evidence, although on 18‑10‑1995 the hearing of the suit was adjourned not on the asking of the appellant/plaintiff but on the asking of the respondents/defendants and the said order does not contain any such warning to the appellant. The trial Court, thus, proceeded to dismiss the plaintiff's application for the grant of an adjournment and while accepting the defendants' application, dismissed the suit forthwith under Order 17, Rule 3, C.P.C.

4. The appeal also accompanies an application (Civil Miscellaneous No. l of 1997) under section 5 of the Limitation Act for condonation of delay, if any. The relevant facts necessary for the decision of this application are that the present appeal was instituted in this Court within the period of limitation on 31‑1‑1996. On 26‑2‑1996, the D.R.R. (Civil) of this Court returned the appeal with objections at Serial Nos. 11, 13, 18, 19, 23 and 25, including an objection in regard to the non‑flagging of the impugned order. One of the objections was in regard to the furnishing of receipt of Rs.250 as advance printing charges. The receipt dated 3‑3‑1996 shows that the advance printing charges of Rs.25 were deposited in the Treasury of this Court on 3‑3‑1996 and the appeal was refilled after the removal of objections within 7 days, on 6‑3‑1996. The Objection Form shows that on 31‑3‑1996 office again raised an objection that Objection No. 19 in regard to the non‑flagging of the impugned order had still not been removed. The record does not show as to when the appeal papers were returned to the appellant or his counsel. .However, it shows that on 23‑12,‑1996, the appeal was resubmitted with a note of the counsel to the effect that "needful has been done". Thereafter, on 20‑1‑1997 the office again raised an objection that in view of the judgment reported as PLD 1996 Lah. 702, the appeal had become barred by time. The petitioner thereafter filed an application under section 5 of‑the Limitation Act for the condonation of delay and refilled the appeal on 1‑2‑1997.

5. We have heard the learned counsel for the parties and have also seen the record.

6. It is contended by the learned counsel for the appellant that on 18‑10‑1995, the hearing of the suit was not adjourned to 6‑11‑1995 on the asking of the defaulting party i.e. the appellant but it was adjourned on the asking of the respondents/defendants and, therefore, the trial Court acted illegally in dismissing the suit forthwith under Order 17, Rule 3, C.P.C. Reliance in this regard is placed on Haji Muhammad Ramzan v. Mian Abdul Majid and others PLD 1986 SC 129; wherein it was held that the provisions contained in Order, 17, Rule 3 were not attracted if the adjournment was granted otherwise than on the asking of the defaulting party. Reliance has also been placed on Jind Wadda and others v. Abdul Hamid and others PLD 1990 SC 1192, wherein it was again held that, as the case was not adjourned on the request of the plaintiff on the last date and was adjourned due to an act of the Court, therefore, it was not a case of application of Order 17, Rule 3, C. P. C.

7. In regard to the issue of limitation, it is contended by the learned counsel for the appellant that the appellant gave an application under section 5 of the Limitation Act merely by way of an abandoned caution due to an office objection, dated 20‑1‑1997 that "in view of the judgment reported as PLD 1996 Lah. 702, the appeal is time‑barred" otherwise the objections were removed and the appeal was refilled previously within the given time of 7 days and the impugned order was flagged, hence, the appeal was in time. It is also submitted that the second objection could have been the result of office negligence and the flag attached with the impugned order might have fallen down while the appeal was lying in the office and even otherwise this was not an objection of a serious nature justifying the office to keep the appeal pending for such a long time without hearing. Learned counsel has also argued that the judgment Naheed Ahmed v. Asif Riaz and 3 others PLD 1996 Lah. 702 is not applicable to the facts and circumstances of the present case because the appellant in the said case remained indolent for a long time and was contumaciously negligent in not making up the deficiency in court‑fee in time, whereas in the present case no such contumacy is involved and the non‑flagging of the impugned order cannot be taken to be such a serious objection to make the appeal as time‑barred: It is also argued that the memorandum of appeal remained in the office for a long time without any notice to the appellant or appellant's counsel that a petty objection has been raised by the office to the effect that the impugned order was not flagged. Learned counsel, in the end, has relied upon Shirin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584, to contend that a party should not suffer because of the mistake or an act of the Court. In this judgment it has been held by the apex Court that "it is, however, to be remembered that expression "due diligence" and "good faith" appearing in section 14 do not figure in section

5. The condition prescribed in latter section for its applicability is "sufficient cause" but what is sufficient cause is not capable of connotation, with exactitude and would differ from case to case. We may observe that filing of appeal in a wrong Court on account of wrong mistaken advice tendered by the counsel canvassed on behalf of the appellant for condonation of delay by itself would not attract section 5 but when the litigant and the counsel have acted with due care and caution and their conduct does not smack of negligence, the institution of the appeal in the wrong forum may constitute a "sufficient cause" within the meaning of section 5 for condonation of delay". In this case, in the end, delay in presenting the memorandum ' of appeal to the High Court, in the circumstances of the case, was condoned.

8. Learned counsel for the respondents while vehemently opposing the appeal has not been able to support the impugned order/judgment and decree on its merit because on 18‑10‑1995 the hearing of the suit was not adjourned to 6‑11‑1995 on the asking of the defaulting party i.e., the appellant/plaintiff but has opposed the appeal on the ground that the same has become barred by time because the appellant failed to remove the office objections and refile the appeal in time. Reliance in this regard is placed upon Naheed Ahmed v. Asif Riaz and 3 others (supra), also reported as PLD 1996 Lah. 702, Abid Hussain and others v. Aziz Fatima and others PLD 1995 SC 399 and Lahore Development Authority v. Muhammad Rashid 1997 SCMR 1224.

9. We are of the view that the trial Court acted illegally in dismissing the appellant's suit under Order 17, Rule 3‑, C.P.C., because the trial Court illegally applied the provisions of Order 17, Rule 3, C.P.C. as the hearing of the suit was not adjourned to 6‑11‑1995 on the asking of the faulting party i.e.! the appellant. Learned counsel for the appellant in this regard has A correctly relied upon Haji Muhammad Ramzan v. Mian Abdul Majid and others (supra) and Jind Wadda and others v. Abdul Hamid and others (supra). We are also of the view that on 6‑11‑1995 two of the witnesses from the appellant's side were present and instead of dismissing the suit due to the non=availability of the complete evidence, the trial Court ought to have recorded the statements of the witnesses present in Court.

10. In regard to the issue of limitation, we are of the view that the appeal is not barred by time. The appeal was instituted in time. The objections raised by the office were removed and it was re‑filed within the time given by the office. The appeal thereafter, seems to have been treated as an objection case merely because the office was of the view that the objection regarding flagging of the impugned order was still not removed although it was one of the previous objections which were allegedly removed at the time of refilling of the appeal in time and it is possible; as argued by the learned counsel for the appellant, that the flag attached to the impugned order might have fallen down while the appeal was lying in the office of this Court‑ Even otherwise it was not an objection of such a nature which could only be removed by the appellant or his counsel. The appeal in air other respite was complete and the office could have put up the appeal for hearing by flagging the impugned order itself instead of placing the appeal again as an objection case. We are of view that the law does not intend to make the appeals as barred by time due to the non‑compliance, by the defaulting, party, in time, such petty objection, being raised by the office of this Court and the spirit of the law, in our humble view is that the appeals are to become barred by time only if the nature of the objections is such, that the same can only be removed by the defaulting party itself, like making of deficiency of court fee, the deposit of printing charges, furnishing of certified copies of the impugned judgments and decrees etc. In the end, it will depend upon the I facts and circumstances of each case separately. In the present case, no contumacy is involved and there is no negligence either on the part of the appellant or4tis counsel because the appeal was refilled in time after removal of the objections which were raised for the first time by the office but the office again treated it as an objection case merely because allegedly the impugned order was not flagged. This objection could have been removed by the office itself easily in the absence of the appellant or the appellant's counsel. The judgment delivered by this Court reported as Naheed Ahmed v. Asif Riaz and 3 others (supra) relied upon by the learned counsel for the respondents is distinguishable on the facts and circumstances of the case because in the said case contumacious negligence was found to be involved as the appeal was filed without the requisite court‑fee of Rs.15,000 and the appellant failed to remove this objection in this regard for about two years. Similarly Abid Hussain and others v. Aziz Fatima and others (supra), relied upon by the learned counsel for the respondents, is not applicable because in the said case the High Court refused to condone the delay and concluded that the petitioner's conduct was contumacious in not removing the office objection for nearly two vears. The Honourable Supreme Court held that the discretion exercised by the High Court in dismissing the revision petition as being hopelessly time‑barred was proper which did not justify interference. Similarly in Lahore Development Authority v. Muhammad Rashid (supra), the apex Court refused to interfere in the discretion exercised by the High Court in the similar circumstances. In view of the above discussion, it is held that the present appeal is not barred by time Civil Miscellaneous No. l of 1997 is accordingly disposed of.

11. In view of abovementioned, the appeal is accepted, the impugned order/judgment and decree dated 6‑11‑1995, of Civil Judge 1st Class, Sargodha, is set aside and the case is remanded back to the trial Court for the decision of the suit on merits, in accordance with law. In view of the legal issue involved, the parties are left to bear their own costs. Q. M. H. /M. A. K./G‑161/L Appeal allowed.