2003 PLP 1677 (MLD)

Raja Muhammad Saeed Akram, A.A.-G. for Appellants Abdur Rashid Awan for Respondent. Date of hearing: 23rd May, 2002. Briefly stated the facts of the case are to the effect that Muhammad Arif respondent, had filed an application under section 20 of the Arbitration Act, alleging therein that he had got a contract from the petitioners for the construction of building for Government Girls High School in Chuha Khalsa Kahuta,, District Rawalpindi. Due to the shortage of funds and other various reasons the time limit was extended for the completion of project front 22-11-1990 to 28-6-1992. After completion of the work, respondent-appellant (herein) prepared the final bill and also refused to release the security amount despite his repeated notices. He prayed that according to the terms and conditions of the agreement in case of dispute between the contractor and the department, the matter had to be referred to arbitrators. He averred that, the respondent is not clarifying the matter and is not releasing the cheque to him. He prayed that the arbitrators be appointed in accordance with the terms and conditions of the contract. In this case; the respondent appellant appeared through Muzaffar Hussain S.D.O. (Building) on 16-1-1999 and got adjournments ,far reply of this, application. The Court had granted number of adjournments to the respondent-appellants to file the written reply but they failed to file the same upto 10-3-1999. On that date, the, Presiding Officer of; the Court was on leave and the appellant again requested for adjournment and the case, was adjourned, to 24-3-1999. On the said date, nobody had entered appearance on behalf of in appellants. This date was fixed by the Reader, therefore, no penal action could be taken. The case was then adjourned to 4-4-1999.but it was a holiday and case was put up before I the Presiding Officer on 5-4-1999 and even, on that date nobody, appeared on behalf of the appellant, so the respondent-appellants were proceeded against ex parte and the application of the applicant for appointment of the Arbitrator was allowed and the Arbitrator was appointed.

2. Thereafter, the appellants had moved an application for setting aside the ex parte proceedings on the ground that on 10-3-1999, they were given the date as 22-4-1999 for the submission of the written reply but the Court proceedings were taken against them on 5-4-1999. The application filed by the Province of Punjab was dismissed by the learned Civil Judge on 29-7-1999. Feeling aggrieved the respondent-appellants (herein) preferred a revision petition before the learned Additional District Judge, Rawalpindi on 4-9-1999 and the revisional Court vide judgment dated 16-11-1999 returned the revision petition 'to the appellants for the presentation before the competent Court on the ground that the value for jurisdiction in the application was fixed as 2,50,000 which was not triable by District Judge as he was not competent to entertain a lis exceeding the suit value Rs.2,00,000.

3. The appellants had filed the instant F.A.O. in this Court on 10-12-1999, after the expiry of period of limitation.

4. The order of the trial Court rejecting the application of the appellants had been passed on 29-7-1999. The revision was returned on 16-11-1999 and the present F.A.O. has been filed in this Court on 10-12-1999. The appellants had not filed any application for condonation of delay. The limitation for filing a petition under section 115, C.P.C. is 90 days and appeal against order of the trial Court could be filed in this Court within limitation. Learned A.A.-G. when confronted with this situation, contended that the prosecution of the case in the wrong Court would provide the appellants the benefit of sections 5 and 14 of the Limitation Act.

5. Section 14 of the Limitation Act has provided that (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 proceeding, whether in a Court of 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 like nature, is unable to entertain it. Section 5 of the Act has further provided that the Court can condone the delay if the applicant/appellant satisfy the Court that he had sufficient cause for not preferring an appeal or making application within limitation. The appellants had not shown sufficient cause for not filing the appeal within the period of limitation in this Court. The party has to show that there was a sufficient cause within the meaning of section 5 of the Limitation Act for not preferring the appeal before proper forum within period of limitation for bringing case within the ambit of principal governing section 14 of the Act. The appellants have to show that they had prosecuted the appeal before wrong forum in good faith. Section 2(7) of the Limitation Act would mean that what is done without due care and attention cannot be deemed to be done in good faith. The District Judge under section 18 of the West Pakistan Civil Courts Ordinance, 1962, had no jurisdiction to hear appeals against decrees above Rs.2,00,

000. Reference in this context, can be made to the case of Abdul Ghani v. Mst. Mussarat Rehana (1985 CLC 2529).

6. In case of Ghulam Ali v. Akbar alias Akoor and another (PLD 1991 SC 957) the Hon'ble Judges of the Supreme Court have observed that if sections 5 and 14 A the Limitation Act, 1908 were read in juxta position with each other, only that delay would appear to be condonable which had occurred in spite of the fact that plaintiff had prosecuted his case with due diligence. The mistake of the counsel would not be treated as an act done in good faith as the same was not done with due care and diligence and would not amount to sufficient cause as contemplated under section 5 of the Act. The presentation of delayed appeal, was thus, an act of gross negligence and rejection of appeal on that count, was, therefore, in accordance with law.

7. The appellants has to explain the delay of each and every day, showing sufficient cause. Reliance in this respect can be made to the cases of Muhammad Nawaz Khan v. Mst. Farrah Naz (PLD 1999 Lahore C 238), Raja Karamatullah v. Sardar Muhammad Aslam Sukhera (1999 SCMR 1892), and Sardar Ahmad Yar Khan v. Province of Baluchistan (2002 SCMR 122).

8. It has also been made clear that the Province of Punjab would also be treated at par with the private litigant and for condonation of delay no preference would be given to the Province of Punjab if the appeal or revision has been filed beyond period of limitation.

9. For the foregoing reasons, the instant F.A.O. challenging the order dated 29-7-1999 passed by the learned Civil Judge, Rawalpindi, being barred by time is dismissed. There shall be no order as to costs. S.M.A.H./P-109/L Appeal dismissed.