1996 PLP 206 (CLC)

Upon the pleadings of the parties six issues were framed and on the request of the defendants through as application filed on 22‑10‑1992; learned Civil Judge while accepting the request ordered to decide Issue No. 3 before Proceeding any further. Learned Court held that neither any cause of action nor any Part thereof had accrued at Quetta, therefore, he ordered return of the plaint to the plaintiffs with direction to present it before Court of competent jurisdiction at Loralai. Feeling aggrieved of this order an appeal was preferred but learned Additional District Judge‑I, Quetta vide order dated 28‑7‑1993 dismissed the appeal. It is alleged that the plaintiffs then filed a fresh suit on 18‑11‑1993 before Majlis‑e‑Shoora at Loralai. Learned Majlis‑e‑Shoora after obtaining written statement framed 3 issues on merits which are reproduced as under:‑‑ The Majlis‑e‑Shoora, however, on 3 preliminary issues passed an order dated 23‑10‑1994 which has been impugned in this revision petition. Heard Mr. Basharatullah, Advocate for petitioners and Mr. Azizullah Memon, Advocate for respondents. Mr. Basharatullah firstly contended that the suit was clearly barred by time. It‑ was contended that initially no issue of limitation was framed, therefore, the defendants made an application on 5‑3‑7994 for framing of additional issue of limitation, resultantly issue of limitation was framed but decided against the petitioners which according to the counsel was not correct. According to him for compensation for libel the period of limitation starts from the date libel is published under Article 24 of the First Schedule of the Limitation Act. Similarly under Article 25 the period is again one year for compensation of slander when the words are spoken, or, it the words are not actionable in themselves, when the special damage complained of results. Likewise under Article 23 of the Limitation Act for compensation for a malicious prosecution, period prescribed is one year when the plaintiff is acquitted, or the prosecution is otherwise terminated. It was further contended that the cause of action accrues when the libel or slander is published and the limitation starts from the date of publication. The question arises what is publication. According to Mr. Basharatullah, communication to a third person is known as publication. In my considered‑ view the petitioners by filing an application against the respondents instituted malicious proceedings without any probable cause, therefore, the case falls under malicious prosecution. Malicious prosecution has been described by Black's Law Dictionary as "one who takes an active part in the initiation, continuation of procurement of civil proceedings against another is subject to liability to the other for wrongful civil proceedings if‑‑(a) he acts without probable cause, and primarily for a purpose other than that of securing the proper adjudication of the claim in which the proceedings are based, and(b) except when they are ex parte, the proceedings have terminated in favour of the person against whom they are brought". In the instant case the proceedings were started by the petitioners which culminated in dismissal of application by the Collector, then appeal was filed by the petitioners which was also dismissed by the commissioner and ultimately revision petition has been dismissed by M.B.R. on 17‑12‑1991. Thus the proceedings terminated in favour of the respondents on 17‑12‑1991. After termination of the proceedings in favour of respondents, the respondents filed a suit for damages in the Court of Civil Judge on 29‑3‑1992 but the petitioners raised an objection regarding territorial jurisdiction. After hearing the parties, the learned Civil Court vide order dared 30‑12‑1992 ordered return of the plaint to be filed in competent Court of jurisdiction, appeal was filed against the said order which was also dismissed on 28‑7‑1993 and the present suit was filed on 18‑11‑1993 before Majlis‑e‑Shoora Loralai. It was urged by Mr. Basharatullah that the suit is clearly barred by time because the cause of action accrued to the plaintiff in the year 1987. Even otherwise if the date on which the Civil Court returned the plaint is counted, the suit is barred by time because plaint before Civil Judge has been filed on 29‑3‑1992 whereas present suit was filed on 18‑11‑1993, which is beyond the limitation prescribed under Article 23 of the Limitation Act. Another limb of the arguments advanced by the learned counsel was that the plaintiff did not file any application for condonation of delay under section 14 of Limitation Act. It was, therefore, argued that the Trial Court erred in law by declaring the plaint to be within time. On the contrary, learned counsel for the respondent/plaintiff Mr. Azizullah Memon convassed that the suit was within time because the limitation starts from the period when the malicious prosecution was terminated by the highest forum, i.e. Member, Board of Revenue, vide order dated 17‑12‑1991, while the plaint was filed before the Civil Judge on 29‑3‑1992, within period of one year. The time consumed before the Civil Judge who was pleased to dismiss the plaint for want of jurisdiction, as well as the period spent before the District Judge in appeal shall have to be excluded from the limitation as provided under Article 14 of the Limitation Act. As to the second limb of arguments as regards filing of an application, it was contended that this fact was in the knowledge of the parties, so much so that an issue was framed by the Trial Court and parties addressed the Court on the basis of facts, therefore, it was contended that the conclusion drawn by Majlis‑e‑Shoora are unexceptionable. I gave my anxious consideration to the arguments so advanced. First of all it is to be seen that under Article 14 of the Limitation Act, the time spent during the proceedings in Court having no jurisdiction is excluded. But there are certain conditions, the existence of which is necessary to exclude the time consumed in proceedings before a wrong forum and those are that the proceedings is founded upon the same action of the section and prosecuted in good faith in a Court which for want of jurisdiction, or other cause of alike nature, did not entertain it. Attending to the second limb of arguments advanced by the petitioners' counsel that in absence of filing of an application under section 14 of the Limitation Act claiming exclusion of the time spent in wrong forums, hence benefit of section 14 cannot be extended; suffice is to observe that the Court should not refuse benefit of this section merely because the plaintiff does not show any ground for exemption from limitation in the plaint. In this regard my attention was invited to PLD 1968 Peshawar

181. In the said judgment it has been held that delay cannot be condoned under Article 14 of the Limitation Act without filing an application for condonation. I have perused the said judgment and this observation has been made while hearing the Letters Patent Appeal and not in the Court of First Instance. Furthermore, such condonation was sought during the final arguments and no ground had been taken even in appeal before the Court; whereas in. the instant case this, objection has been raised and an issue of limitation framed by the Trial Court. From perusal of the order which is impugned before me, it is clear that the learned Majlis‑e‑Shoora has taken into consideration facts in this regard. Thus, in my humble opinion the ratio decidendi of the abovementioned case (supra) is in apt to‑the facts of the present case. It was in the knowledge of both the parties that suit for damages initially was filed before the Civil Judge, Quetta who dismissed it for want of jurisdiction. So also appeal was dismissed by the Additional District Judge and thereafter plaint was filed before learned Majlis‑e‑Shoora. In my humble view the appropriate authority which has dealt with the point in question is AIR 1957 Madhya Pradesh

95. In the said case an observation was made that even if the plaintiff does not supply proper details in the plaint, he is entitled to the benefit under section 14 of the Limitation Act if the facts were known to both the parties about period which was liable to be excluded. It was, therefore, held that the defendant could not be permitted to complain of any prejudice for want of proper details in the pleading. In AIR 1957 Patna 139 the scope of section 14 of the Limitation Act came into consideration during second appeal and it was held as under:‑‑ "Section 14 is to protect a former infructuous, but bona fide litigation. The principle underlying it is that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits, but failing through the Court being unable to give him such a trial. The principle is clearly applicable not only to a case in which a man brings his suit in the Court, that is, a Court having no jurisdiction to entertain it, but also where he brings the suit in the wrong Court in consequence of a bona fide mistake of law or defect of procedure." Besides in the said case it was further held that the application of section 14 can, therefore, be considered in cases by the High Court in second appeal even if no ground under section 14 was taken by the plaintiff in the plaint. From the above discussion the inescapable conclusion would be that the application under section 14 can be considered by the Trial Court even if not specifically mentioned in the plaint. However, another principle which is very pertinent is that such Court should take into consideration necessary conditions while granting or refusing condonation. These necessary conditions are that the plaintiff must have brought the suit in a Court having no jurisdiction to entertain it and secondly the suit so brought in the Court was in consequence of bona fide mistake of law or defect of procedure. From the perusal of impugned order I do not find that learned Majlis e‑Shoora has dilated upon these aspects in detail. It has dealt with this important issue in a cursory manner and has not concluded that the proceedings before the Civil Court had been filed bona fide and in good faith or otherwise. The order passed to the said extent is, therefore, set aside and is remanded to the Majlis‑e‑Shoora with direction to allow the parties to lead evidence on this issue again. A last attempt was made by Mr. Basharatullah who argued that the plaintiff has submitted a fresh suit before Majlis‑e‑Shoora, therefore, section 14 of the Limitation Act does not apply and onus would lie on the plaintiff to prove that the suit filed was within time. Undoubtedly benefit of section 14 of the Limitation Act is extended only where the plaint returned for want of jurisdiction is filed in a Court of competent jurisdiction and not on filing a fresh plaint on the same facts. But, from perusal of impugned judgment it becomes clear that the same plaint and its Urdu translation had been filed before Majlisi‑e‑Shoora as Member of Majlis‑e‑Shoora was not acquainted with English. In the circumstances the argument becomes irrelevant and loses its force. It may be mentioned that by the impugned order learned Majlis‑e Shoora has disposed of the preliminary issues other than the issue of limitation. I do not find any irregularity in disposing of the remaining preliminary issues which are settled. However, the issue of limitation and evidence taken thereon may be taken alongwith other issues on merits and decided by learned Majlis e‑Shoora in accordance with law. Order accordingly. I pass no orders as to costs. A.A./547/Q Order accordingly.