2011 PLP 1315 (SCMR)

MIAN HAMID FAROOQ, J.

Petitioner seeks leave to appeal against judgment dated 13-3-2009, whereby the learned High Court of Sindh at Karachi allowed respondent No.1's appeal (HCA No.197 of 2008) and remanded the case to the learned Single Judge.

2. Respondent No.1/plaintiff filed suit for specific performance, perpetual injunction and special damages (Suit No.455 of 2007) before the learned High Court in its original jurisdiction, wherein the petitioner was arrayed as defendant No.1. Defendants Nos.1 to 5 did not file written statement, however, the petitioner filed an application under Order VII, Rule 11, C.P.C. for rejection of the plaint on the ground that no cause of action accrued to respondent No.1 to file the suit, which is not maintainable. The learned Single Judge in Chambers concluded that defendant No.6 (Nisar Ahmed Manzar) was not competent to execute sale agreement regarding shares of defendants Nos.1 to 5 in the suit property and as the suit could not ultimately succeed, therefore, petitioner's application was allowed and the plaint in respondent No.1's suit was rejected, vide order dated 30-6-2008. Respondent No.1 filed the appeal before the learned High Court of Sindh, which was allowed by its Division Bench, vide impugned judgment dated 13-3-2009, in the following manner:-- "11 Under the circumstances, this appeal is hereby allowed with the result that the impugned order is set aside and the suit stands remanded to the learned Single Judge with a request to further proceed with the suit strictly in accordance with settled principles of law." Hence the present petition.

3. At the very outset, learned counsel for the respondents raised a preliminary objection that the present petition, filed under Article 185(3) of the Constitution of Islamic Republic of Pakistan, is not competent and that the petitioner should have filed direct appeal, which even on the date of filing the present petition, had already become barred by time. He relied upon the judgments reported as "Ghulam Muhammad v. Government of Balochistan (2007 SCMR 41) and Muhammad Nawaz v. Sardara (2008 SCMR 1953)". Learned counsel for the petitioner stated that since Intra Court Appeal was decided by the learned Division Bench of the High Court of Sindh and the case was remanded, therefore, the present petition was competent. He relied upon the judgment reported as "Lahore Cantt, Park View Cooperative Housing Society v. Muhammad Ishaq and others (2000 SCMR 39)".

4. We have heard the learned counsel for the parties and examined the available record. It would be advantageous to reproduce Articles 185(2)(d), 185(3) of the Constitution:-- "185(2)(d): if the amount or value of the subject-matter of the dispute in the Court of first instance was, and also in dispute in appeal, is not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of [Majlis-e-Shoora (Parliament)] and the judgment, decree or final order appeal from has varied or set aside the judgment, decree or final order of the court immediately below; (underlining for emphasis) 185(3): An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which clause (2) does not apply shall lie only if the Supreme Court grants leave to appeal." It flows from the plain reading of Article 185(2)(d) of the Constitution that for determining the question as to whether the appeal or petition would be competent, amount or value of subject-matter of the dispute in the Court of first instance should not be less than Rs. 50,000 and the judgment, decree and order appealed from was varied or set aside by the Court immediately below. Furthermore the value of the subject-matter in dispute in the Court of first instance had to be looked into and not the value of the original suit. Both the learned counsel admitted that the value of the subject-matter of suit was more than Rs.50,000 and order passed by the learned Single Judge for rejection of the plaint was varied by the learned Division Bench of the High Court of Sindh. In the instant case value of the subject-matter of the dispute i.e. agreement to sell and the quantum of damages claimed in the plaint in the Court of first instance definitely exceeded from Rs.50,000 and the judgment of the learned Single Judge was set aside, therefore, the present petition in view of Article 185(2)(d) of the Constitution was barred.

5. In the above backdrop, we are of the firm view that under the circumstance only the direct appeal under Article 185(2)(d) of the Constitution was competent and thus the present petition was not maintainable under Article 185(3) of the Constitution. The learned counsel has neither filed any application for conversion of this petition into appeal nor any application for condonation of delay was made. On Court's query, learned counsel for the petitioner admitted that on the date of filing of instant petition, the period for filing appeal had already elapsed and as such the appeal had already become time barred. Needless to add that this Court in appropriate cases and in exercise of its discretion has ample powers to condone the delay caused in filing an appeal provided sufficient and reasonable cause within the parameters of law has been shown for condonation of delay. Reference can be made to "Ghulam Muhammad v. Government of Balochistan (2007 SCMR 41)". This Court, while dilating upon the same issue in a case reported as "Muhammad Nawaz v. Sardara (2008 SCMR 1953)" took the same view. It may be noted that the petitioner till date failed to file any application either for conversion of this petition into appeal or for condonation of delay. As the petitioner did not file any application justifying the conversion of this petition into appeal or for condonation of delay, therefore, there is no sufficient cause before us for conversion of this petition into appeal and condone the delay.

6. For the foregoing reasons, the present petition stands dismissed on the ground of its in-competency and being untenable. M.H./K-14/SC Petition dismissed.