2013 PLP 1348 (YLR)

MEHMOOD MAQBOOL BAJWA, J.

Respondent No.1 who was arrayed as defendant No.1 in the suit for declaration, cancellation of instrument and perpetual injunction titled "Muhammad Fayyaz v. Muhammad Shafi etc." sub judice before the learned trial Court in which vide order dated 22-6-2010 due to failure of respondent No.1 i.e. Muhammad Shafi cited as defendant No.1, his right to submit written statement was closed. The said order was called in question at the instance of respondent No.1 by preferring an appeal on 23-7-2012. Along with the memorandum of appeal, an application under section 5 of The Limitation Act, 1908 was filed contending that due to sufficient cause, the appeal could not be preferred within time. On 23-7-2012 notices were directed to be issued to the respondents arrayed in the appeal including the present petitioner cited as respondent No.2. However, strangely enough on 10-8-2012 the learned first appellate court did not peruse the file regarding service of present petitioner cited as respondent No.2 and in view of the premium granted at the instance of respondent No.1 Muhammad Fayyaz, who instituted the suit, accepted the application granting one opportunity to respondent No.1 for submission of written statement.

2. The learned counsel for the petitioner maintained that the petitioner was not given right of opportunity to submit his stance before the learned first appellate court. However, the learned counsel for the petitioner focused his attention towards the factum of non-deciding the application under section 5 of The Limitation Act, 1908 maintaining that the appeal was hopelessly barred by time which even otherwise was not maintainable. On the other hand, the learned counsel for respondent No.1 contended that on so many dates of hearing, the learned trial Court was on leave and as such the order impugned dated 22-6-2010 was legally not maintainable.

3. Perusal of the record suggests that the application under section 5 of The Limitation Act, 1908 was made, at the instance of respondent No.1 seeking condonation of delay but without deciding the application appeal which admittedly was barred by time was accepted. Proposition, of law that question of limitation is not a mere technicality cannot be disputed. Reliance is placed "MUHAMMAD ISLAM v. INSPECTOR GENERAL OF POLICE, ISLAMABAD and others" (2011 SCMR 8). In view of the matter, the order impugned before this court suffers from jurisdictional defect. The learned first appellate court first of all should have decided the application under section 5 of The Limitation Act, 1908. Even otherwise, the learned first appellate court was required to decide the question of maintainability of appeal as laid and framed.

4. Pursuant to above discussion, the order impugned suffers from jurisdictional defect and as such while accepting the revision petition, order dated 10-8-2012 recorded by learned Additional District Judge, Lahore is hereby set aside and the matter is remanded to the same court who shall decide the appeal afresh after giving its findings on the application under section 5 of The Limitation Act, 1908.

5. The parties shall appear before the learned Additional District Judge, Lahore on 20-11-2012.

6. No order as to costs. MWA/D-12/L Petition allowed.