1991 PLP 1305 (CLC)

(b) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑ S. 104, OXLIII, Rr.1 & 3 ‑‑‑ Contention that appeal against order of Trial Court was barred by time and as such was not maintainable was repelled where nothing was brought on record to show as to how much was the delay and the matter of delay, if any, was not pursued by opposite‑party ‑‑‑ No illegality thus was committed by Appellate Court in not dealing with the matter of delay. Muhammad Saleem Shahnazi for Appellant. Faiz Hussain Qadri for Respondent. Date of hearing: 7th April, 1991. This first appeal under Section 104, C.P.C. read with Order 43, rules 1 and 3, C.P.C. was directed against the judgment dated 23‑7‑1978 of the Additional District Judge, whereby the judgment and decree dated 22‑6‑1976 passed by the learned Civil Judge was set aside and the suit was remanded for fresh decision in accordance with law.

2. Learned counsel for the appellant argued that the suit was barred by Order 11, rules 2 and 3, C.P.C. and the appeal filed was also barred by time and as such without condoning the delay, the appeal should not have been accepted. The plea that the suit was barred by Order 11, rules 2 and 3, C.P.C. has no merits as earlier suit for permanent injunction was filed but during the pendency of said suit, the present suit for declaration and possession as a consequential relief was filed and the other suit was withdrawn. The two suits were of different nature and in the circumstances second suit was not barred in any way. Learned counsel was unable to cite any precedent to show that the suit for declaration and possession subsequently filed was barred by law or under Order II, rules 2 and 3, C.P.C.

3. Coming to the second plea that the first appeal was barred by time, it is true that it was so noted by the learned Additional District Judge in the judgment but then he observed that application for condonation of delay was moved by the appellant. This matter seems not to have been pursued further and as such the learned Additional District Judge seems not to have attended to this matter in the judgment. Even before me, nothing was brought out to show as to how much was the delay and what was the reason given for seeking condonation of delay. Even a copy of the application seeking condonation of delay has not been brought on record of this appeal. In the circumstances, it is to be noted that the matter of delay was not pursued and as such no illegality was committed by the learned Additional District Judge in not dealing with the matter of delay any further. Moreover, learned counsel for the respondent has also pointed out that F.A.O. does not lie as no further appeal was available against the impugned judgment. This question cannot be determined as the learned counsel was not able to point out as to what was the value of the suit. In any case revision was competent and this appeal could be treated as a revision petition in that eventuality. This aspect, as such, needs not be pursued any further.

4. The appeal in any case is liable to be dismissed for the reason that the two pleas raised by the learned counsel for the appellant have no merit and have been repelled for ‑the reasons given above. This appeal, therefore, fails and is hereby dismissed. There will be no order as to cost as the learned counsel for the respondent has no instructions at this stage and has entered appearance in this case because he had filed his power at an earlier stage. H.B.T./W‑106/L Appeal dismissed