P L D 2005 Peshawar 92 (PLP)

The appellants filed suit for declaration, possession, recovery and perpetual injunction in the Court of learned Civil Judge/Illaqa Qazi at Samar Bagh, Dir on 27‑11‑1995. The said suit was resisted by respondents/defendants by filing written statement but it was during the pendency of the suit that the appellants/plaintiffs filed application for permission to amend their plaint. The said permission was granted, by the learned trial Court vide order dated 16‑5‑1996. Thereafter, once again they sought amendment in their plaint by filing an application which too was allowed vide order dated 18‑9‑1999. The appellants/plaintiffs filed amended plaint on 1‑9‑2000 but the respondents/defendants filed two different applications. One application was filed by respondents 1 and 2 for rejection of plaint on the ground that the appellants/plaintiffs had filed the amended plaint for which permission had not been granted to them and the other application was filed by respondent/defendant No.3 seeking direction from the Court in the names of appellants/plaintiffs to confine their plaint to the amendment allowed by the Court. The learned trial Court allowed the application of respondent/defendant No.3 vide order dated 2‑12‑2003 and directed the appellants/plaintiffs to file amended plaint confining the same to the amendment allowed by the Court. The appellants/plaintiffs failed to file the said amended plaint as per directions of the learned trial Court. The learned trial Court vide order dated 9‑1‑2004 while applying Order XVII, Rule 3, C.P.C. dismissed the suit of appellants/plaintiffs for non‑compliance of its earlier orders. Being not contented with the judgment and decree passed by the learned trial Court the appellants/plaintiffs filed appeal in the 28‑1‑2004 which was returned to them on 2‑6‑2004 due to lack of pecuniary jurisdiction. The appellants have filed appeal in hand in this Court on.19‑6‑2004.

2. Mr. Hidayatullah Khan, learned counsel representing the appellants/plaintiffs argued that no doubt Chat the plaintiffs were twice granted permission to amend their suit and they accordingly amended the plant but if they had mentioned anything in their plaint for which permission had not been granted, they could not be visited with Order XVII, Rule 3, C.P.C. as the same was not applicable in such cases.

3. It was also argued that the appellants had filed appeal before the learned District Judge with the bona fide belief that the said Court had the jurisdiction and on its return, the same was filed before this Court without any delay. The time consumed before the learned District Judge was, therefore, condonable. Reliance in this regard was placed on Faquir Muhammad v. Mullah Mahmood PLD 1973 Quetta 1.

4. On the other hand Mr. Mazullah Barkandi, learned counsel representing the respondents argued that despite various chances granted to the appellants/plaintiffs, they failed to produce their evidence and even they did not bother to comply with the orders of the Court to file amended plaint confining themselves to the permission granted by the Court. In this regard they were burdened with cost also but they did not care. Hence having no other alternative the Court had to resort to Order XVII, Rule 3, C.P.C. to dismiss their suit. The order passed by the learned trial Court was just, valid and legal, hence needed no interference.

5. About appeal, the learned counsel argued that the same was hopelessly barred by five months in that the impugned order was passed on 9-1‑2004, appeal against the same was filed in the Court of learned District Judge on 8‑1‑2004 which was returned to them on 2‑6‑2004 but appeal before this Court was filed on 19‑6‑2004, that is with delay of 17 days of its return. The delay, in filing the appeal was not condonable. Reliance in this regard was placed on Mst. Mussarat Ara Khanum v. Umaid Ali and another PLD 1999 Quetta 36, Muhammad Ramzam v. Zulfiqar Ahmad 2003 SCMR 785, Chairman/Secretary, Pakistan Railways v. Muhammad Sharif Javaid Warsi PLD 2003 SC 6 and Muhammad Ashraf v. Qamar Sultana PLD 2003 SC 228.

6. I have heard the learned counsel for the parties at length and perused the record. The main question which needs determination in this case is as to what would be the consequences if the appellants/plaintiffs did not file amended plaint in accordance with the permission for amendment given by the trial Court and whether the suit in such eventuality for non‑compliance of the order of the Court could be dismissed vide Order XVII, Rule 3, C.P.C. Answer to this question had been given in Order VI, Rule 18, C. P. C. If a party who had obtained an order for amendment did not amend accordingly within the time limit for that purpose by the order and if no time was fixed by the. Court then within 14 days from the date of the order, for the permission to amend was granted, the said party would not be permitted to amend after the expiration of the limited time or 14 days as the case maybe unless the time was properly extended by the Court.

7. So far as application of Order XVII, Rule 3, C.P.C. in such‑like cases is concerned, the same was not applicable because in the case in hand the learned trial Court should have dealt with the matter in accordance with Order VI, Rule 18, C.P.C. but the learned trial Court had no powers to dismiss the suit. This was held in Mrs. Tomlinson v. Murammat GORAN (60 IC 376 L).

8. A similar proposition came up for hearing before the Lahore High Court in Rahman v. Ahmad Din AIR 1926 Lah. 571 in which it was held:‑‑‑ "Failure to amend plaint and to pay costs of, adjournment does not justify dismissal of the suit under Order IX, Rule 8 nor can such dismissal be considered as one under Order XVII; Rule 3 when there is no judgment on merits."

9. So far as delay in filing appeal is concerned, the appellants filed appeal before the learned District Judge on 28‑1‑2004 which was returned to them on 2‑6‑2004. They filed appeal in hand on 19‑6‑2004 that is 17 days after the appeal was returned to them. It is by now settled law that in order to get condonation of delay, each day is to be explained. Although there is no explanation available on record as to why 17 days were spent after the appeal was returned to the appellants but keeping in view the fact that the impugned judgment/decree dated 9‑1‑2004 was passed on the wrong premises that is the same was illegal, I therefore, condone the delay in filing the appeal.

10. Resultantly I allow the appeal in hand on payment of cost of Rs.10,

000. The appellants shall pay the cost to the respondents before the learned trial Court which is directed to decide the matter within a period of six months positively. No unnecessary adjournment be granted to either of the parties. Parties are directed to appear before the learned trial Court on 10‑2‑2005. Office is directed to remit the record back to the concerned Court well before the said date. H.B.T./323/P Case remanded.