1991 PLP 1679 (SCMR)

(On appeal from the judgment of the Peshawar High Court, Peshawar dated 26-6-1989 in R.F.A. No.38 of 1985). '

S. 42

Limitation Act (IX of 1908), S.l4

Constitution of Pakistan (1973), Art. 185(3)--`-Benefit of S.14

Institution of appeal in wrong forum

Duty of Court officials

Plaintiffs' suit for declaration and permanent injunction was decreed by Trial Court

Defendants' appeal against said judgment was returned by Appellate Court for presentation of same before competent Court-- Defendants reeled appeal before High Court but it was dismissed on the ground that defendants had not acted with due diligence and in good faith by filing appeal before District Judge instead of High Court, so as to entitle them to condonation of delay and that defendants were also unable to explain the delay in refiling the memorandum of appeal in the High Court

Leave to appeal was granted to consider as to what should be the standard of care and diligence required of appellants when preferring their appeals and whether any duty is cast on Court officials entertaining the appeals to record objections as regards defect of jurisdiction etc. and, if so within what period of time. Akbar Ali and others v. The Province of the Punjab 1989 S C M R 1040 ref. ORDER RUSTAM S. SIDHWA, J.

This is a petition by Sherin and others, petitioners, seeking leave to appeal against the judgment of the Peshawar High Court, Peshawar, dated 26-6-1989.

2. The suit for declaration and permanent injunction filed by Fazal Muhammad and others respondents, was decreed by the Senior Civil Judge, Swat, on 21-2-1984. Sherin and others, petitioners, preferred an appeal against the above judgment before the District Judge, Swat. On 1-12-1985 the learned District Judge held that he had no jurisdiction and returned the appeal to the petitioners for presentation before the competent Court. The petitioners thereupon refiled the appeal before the Peshawar High Court on 15-12-1985. On 26-6-1989 it was officially dismissed on the ground that the petitioners had not acted with due diligence and in good faith by Filing the appeal before the District Judge, Swat, instead of the High Court, so as to entitle them to condonation of delay under section 14(1) of the Limitation Act and that the petitioners were also unable to explain the delay in refiling the memorandum of appeal in the High Court.

3. On behalf of the petitioners it is submitted that the appeal filed before the District Judge on the valuation recorded on the original suit, which valuation was never changed, was sufficient to entitle a counsel preferring an appeal to treat that as proper valuation and the appeal having been preferred with due diligence, petitioners were entitled to the benefit of section 14 of the Limitation Act. It is further submitted that there was some duty of the Court officials who should have pointed out the objection regarding valuation, assuming the same was there, immediately or within a day or so of the filing of the appeal, which, if it had been done, would have put the petitioners on guard and they would immediately have refiled the appeal in the High Court. In this connection Akbar Ali and others v. The Province of the Punjab 1989 S C M R 1040 is referred.

4. What should be the standard of care and diligence required of appellants when preferring their appeals and whether any duty is cast on the Court officials entertaining the appeals to record objections as regards defect of jurisdiction etc. and, if so, within what period of time, require examination.

5. Leave is therefore granted in this case to consider all these and other connected questions. The petitioners shall furnish security in the sum of Rs.5,

000. The appeal shall be heard on the basis of the present record. Parties are at liberty to file such further documents which they consider necessary and proper for the full and final disposal of the appeal. AA./S-527/S Leave granted.