1990 PLP 1535 (CLC)

Dilawar Hussain for Petitioners. Faizanul Haque for Respondent. Date of hearing: 4th September, 1989. By this application under section 115 of the Code of Civil Procedure, the judge of dated 11th February, 1984 passed in Civil Appeal No. 155 of 1982 by the Karachi has been questioned. Shahzada Mian, the respondent herein, had filed a suit claiming Rs. 25.1311`) as damages for malicious prosecution against the present applicants in the Court of IVth Civil Judge First Class, Karachi. This suit was registered as Suit No. 1195 of 1980. The defendants in that suit filed an application under Order VII rule 11 of the Code of Civil Procedure seeking rejection of the plaint mainly the ground that the suit as framed did not disclose any cause of action. The Judge after hearing the parties passed an order on 24th January, 1982 whereby he rejected the plaint. The plaintiff then filed an appeal against the order isseud under Order VII, rule 11 of the Code of Civil Procedure, and his appeal accepted by the order passed on 11th February, 1984 and the trial Court was directed to decide the suit on merits in accordance with law. It is against this last mentioned that the present revision application has been filed. Mr. Dilawar Hussain the Advocate for the applicant mainly contended that the appeal filed by the Plaintiff in the suit was barred by time, and the point of limitation was specifically raised by him before the appellate Court and re agitated before it by way of application for review but he was unsuccessful and hence he filed this revision application mainly on that ground. According to him, the filing of the appeal was delayed for about five days. Mr. Faizanul Haque, the Advocate appearing for the respondent contended that according to the facts the respondent herein had not delayed the filing of the appeal under consideration as the appeal was instituted within prescribed period of limitation. He, however, contended that out of abundant caution an application for condoning the delay was filed, which was heard and the appellate Court had come to the conclusion that in case there was any delay sufficient cause for delay was shown and the delay, if any, was condoned. According to him, the plaint was wrongly rejected by the trial Court as the trial Court had taken into consideration grounds extraneous to the plaint itself and the appellate Court by passing the impugned judgment had in fact corrected the wrong done by the trial Judge. In this case the Advocate appearing for the applicant has not been able to show that the appellate Judge had exercised the jurisdiction not vested in him by law or he failed to exercise his jurisdiction or in any way acted illegally or With material irregularity to attract the jurisdiction of this Court under section 115 of the Code of Civil Procedure. It was within the competency of the appellate Court itself to consider the ground of delay in filing the appeal, if any, and pass appropriate orders. No exception can be taken to exercise of such powers. This revision application is, therefore, dismissed with no order as to costs. AA./M‑1133/x. Revision dismissed.