2022 PLP 2003 (MLD)

AAMER FAROOQ, J.

This consolidated judgment shall decide the instant civil revision as well as Civil Revision No.421/2019 as both arise out of judgment and decree dated 18.09.2019.

2. Muhammad Afzal Khan Jadoon (the petitioner) filed a suit for recovery of Rupees 2,250,000/- against Wahid Mahmood (the respondent) as outstanding professional fee and damages. The suit culminated in ex parte judgment and decree dated 27.04.2016 in favor of the petitioner. In the execution proceedings warrants of arrest of the respondent was issued whereupon he filed an application for setting aside the referred ex parte judgment and decree. The application was allowed on 15.03.2018 and the judgment and decree in favor of the petitioner was set aside with consent of the parties. On 06.06.2018 the right of the respondent to file written statement nixed and on 01.10.2018 the respondent was ordered to be proceeded ex parte. On 12.10.2018 the suit of the petitioner was decided in his favor in the sum of Rupees 2,250,000/-. The said judgment and decree was assailed in appeal by the respondent on 01.07.2019; the appeal was partially allowed and judgment and decree dated 12.10.2018 was modified in the sum of Rupees 300,000/-. The petitioner has challenged, in the civil revision, the judgment of the Appellate Court dated 18.09.2019 modifying the decree and the respondent, through a separate civil revision, questions the liability of Rupees 300,000/- imposed on him.

3. Learned counsel for the appellant argued that the appeal filed by the respondent was barred by limitation and the said fact has been acknowledged by the learned Appellate Court; he contended that without condoning the delay and declaring the appeal competent the Appellate Court proceeded to decide the appeal on merits which could not have been done. Learned counsel further contended that the Appellate Court exercised jurisdiction which was not vested in it inasmuch as once coming to the conclusion that the appeal is time barred it ought to have dismissed the same instead of proceeding to decide on merits. In this behalf it was added that the learned Appellate Court under the law had no suo motu jurisdiction to adjudicate on merits of the case. He placed reliance on cases reported as Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others (PLD 2015 SC 212) and Lyari Development Authority through Law Officer v. Muhammad Maroof Sultan and 3 others (2019 YLR 1965).

4. Learned counsel for the respondent contended that the civil revision (CR. 421/2020) was filed as the petitioner had agitated the matter. It was contended that the respondent does not owe any sum of money to the petitioner hence the impugned judgment is not tenable.

5. Arguments addressed by learned counsel for the parties have been listened with utmost care and the documents placed on record examined with their able assistance. The facts leading to filing of the afore-noted two civil revisions have been mentioned hereinabove with brevity, therefore, need not be reproduced.

6. It is an admitted position that the appeal filed by the respondent was barred by limitation. The period of limitation prescribed for filing of appeal before District Court from judgment and decree of Civil Court is 30 days. The respondent with memorandum of appeal appended application for condonation of delay. Learned Appellate Court categorically held that the appeal is time barred and no ground for condonation of delay is made out and no exception can be taken to that conclusion. However, after holding that the appeal is incompetent the learned Appellate Court proceeded to decide the case on merits. The Appellate Court ought not to have done that as once it held that the appeal is barred by limitation it had no jurisdiction to proceed further in the matter. The Appellate Court under Section 96, C.P.C. did not have suo motu jurisdiction to proceed in the matter unlike the jurisdiction conferred under Section 115, C.P.C. where there is plethora of case law that even if civil revision is incompetent for any reason the Revisional Court can correct the illegality suo motu. Reliance is placed on Ahmed Shah and 3 others v. Mst. Munawar Begum and 3 others (1986 CLC 1079) and Abid Hussain v. Mst. Afsar Jehan Begum and another (PLD 1972 Karachi 54).

7. It is settled law that question of limitation is not a mere technicality and the effect of expiry of limitation is to extinguish the remedy. The remedy of the respondent stood extinguished as his appeal was barred by limitation, hence the learned Appellate Court had no jurisdiction to render findings on the merit of the case and the judgment and decree in favor of the appellant crystallized. There is no basis or justification for the respondent to asssail the judgment of the Appellate Court as his appeal was incompetent and determination by it on the merits of the case was without jurisdiction. The impugned judgment in the above facts and circumstances is indefensible.

8. For the above reasons, Civil Revision No.29/2020 is allowed and impugned judgment and decree dated 18.09.2019 is set aside to the extent of findings on the merits of the appeal; consequently, appeal filed by the respondent is dismissed. Civil Revision No.421 of 2019 is accordingly dismissed. MHS/48/Isl. Revision allowe