1979 PLP 725 (CLC)

3. On 7-11-1973 the respondent filed written statement conceding the superior right of pre-emption of the petitioner subject however to the con dition that decree be passed on payment of sale price of Rs. 7,300 plus Rs. 4,000 being equivalent of depreciation of money value, increase in the prices and damages. The learned trial Court in view of the above position framed the following issue:- "whether the ostensible sale price of Rs. 7,300 was fixed in good faith or actually paid as the price of the. suit land, if not, what was the market value of the suit land at the time of its sale?" On 9-1-1974, the trial Court decided the first part of the issue against the respondent and in view of the position that sufficient evidence was not available on record to give a finding as to the market value it appointed a Local Commissioner for ascertaining the same. The Local Commissioner submitted his report which was objected to by both the parties and the same was rejected by the trial Court by order dated 9-3-1974. Again, on 1-4-1974, with the consent of the parties, another learned Advocate was appointed as Local Commissioner, but his report was also rejected by order of the trial Court dated 15-7-1974, whereupon third Local Commissioner was appointed. On 17-9-1974, the third Local Commissioner submitted a report that he was not able to assess the market value of the land as he could not have access to the land in dispute due to the floods. It appears, being fed up with this situation the petitioner on the said date, viz. 17-9-1974, made a statement in the Court that he would be accepting tile price as may be put by the attorney of defendant and that the case may be decided in accordance therewith. After recording the statement of the petitioner pre-emptor, the trial Court recorded the statement of Lal Muhammad attorney of the respondent-vendee, on the same day, who assessed the market value of the land as Rs. 2,

190. The learned trial Court thereupon passed a decree in favour of the petitioner and against the respondent subject to the payment of the aforsaid sum before 18-10-1974 and the expenses incurred which were to be determined by a person named by the attorney of the respondent within one month from the date the amount of expenditure was determined.

4. Aggrieved by this judgment and decree passed by the trial Court the responent preferred an appeal to the learned District Judge, Jhang who by his judgment dated 1-12-1975 (impugned herein), accepted the same and remanded the case to the trial Court, for decision afresh in accordance with law. Hence this revision by the petitioner.

5. It may be pointed out that the appal before the first Appellate Court was barred by time and an application under section 5 of the Limita tion Act was filed alongwith it.

6. The learned counsel for the petitioner contended :- firstly, that appeal before the lower Appellate Court being barred by time and not supported by an application for condonation of delay in accordance with law, the delay could not be condoned. He elaborated his contention by stating that the affidavit filed along with the aforementioned application under section 5 of the Limitation Act was not legally sworn. He in this regard referred to the High' Court Rules and Orders and section 139, C. P. C. According to the learned counsel section 139, C. P. C. provides that any affidavit under the Code has to be sworn on oath which is to tie administered by persons mentioned therein and that Rules 2 and 6 Chapter 1-E, High Court Rules and Orders Vol. V lays down that an application for G admission of an appeal which is prima facie barred by time has to be accompanied by an affidavit, oath of which had to be administered by a person appointed as provided under section 139, C. P. C. He said the affidavit accompanying this application having been just attested by a Commissioner of Rath, Kent, U. K. and the same having not been authenticated by an Officer of the Embassy of Pakistan there, wherein an Officer is appointed to administer oath has no value and there was thus no properly constituted application filed with the appeal seeking condonation of delay; secondly, that no sufficient cause was shown to explain the delay in filing the appeal out of time. He explained that the decree impugned before the lower Appellate Court w4s passed on 17-y-1974 and under Article 152 of the Limitation Act an appeal could be filed within 30 days therefrom. The respondent's case was that he learnt of the decree on 21-1-1975 through a relative, applied for certified copy which he obtained on 18-2-1975 and filed the appeal on 20-2-1975. Referring to the lower Appellate Court's record the learned counsel pointed out that the copy of the impugned decree was applied for on 17-2-1975 and delivered on 19-2-1975. He argued that even if it be assumed that the respondent came to know about the passing of the decree dated 17-9-1974 on ZI-1-1975, there was no explanation at all for the period of delay between 21-1-1975 when the respondent admittedly bad knowledge and 1)_2-1975 when he applied for' copy of the decree. He submitted that when the period of limitation for filing the cause stands already expired and the case is filed out of time, then the delay of each day has to be explained and the provision of section 5 has to be strictly applied as a vested right by then had accrued to the opposite-party. lie urged that in the above circum stances of the case the exercise of discretion bi, the lower Appellate Court was not warranted in law; thirdly, that since the impugned decree before the lower Appellate Court was a consent decree, no challenge could be made to it as provided by section 96(3), C. P. C. Reliance was placed in this regard on Lal v. Siddiq and others P L D 1961 Lah. 823 ; fourthly, that if the decree passed by the trial Court was considered as collusive and obtained by fraud, the remedy available to the respon dent was by way of a suit and not a time-barred appeal. Reliance was placed on Muhammad Bibi etc. v. Abdul Ghani etc. P L D 1973 Kar. 444, Muhammad Yousuf v. Tajamal Hussain and 6 others P L D 1972 Lah. 565 Raj Gopal Acharjya Goswami v. Opandra Acharjya Goshwani A I R 1926 Pat. 528 ; and lastly, that in so far as the finding of the lower Appellate Court that Lal Muhammad Khan, the attorney of respondent had no power of entering into a compromise is concerned, there was no compromise as such reached but a consent decree was passed on the statement of the attorney of the respondent-defendant as to the market value of the land in dispute and the power to do so was impliedly available in the Special Power of Attorney granted to him as he was authorised to conduct the defence on behalf of the respondent which inter alia included the authority to make a statement. Reference was made to Bank of Bengal v. Ramanathan Chetty I L R 1943 Cal. 527.

7. On the other hand the learned counsel for the respondent merely submitted that since decree passed by the trial Court was void, ab initio, having been obtained by fraud and collusion, the question. of limitation did not arise. Reliance was placed by the learned counsel in this regard on Faqir Muhammad v. Mullah Mahmood (P L D 1973 Quetta 1).

8. He also contended that since it was a compromise decree and a compromise was recorded by the trial Court, the appeal was available against it under Order XLIII, rule 1(m), C. P. C.

9. The last contention raised by the learned counsel for the respondent was that as the Attorney of respondent had no power to compromise, the compromise recorded was invalid and the case having been merely remanded for fresh trial it will cause no injustice to any party.

10. Learned counsel for the petitioner in reply submitted that remand is not called for because if fraud is alleged inter se the parties the remedy is to have the decree set aside through another suit or to file a suit for damages against the attorney or to avail both. Remand, he said, is not warranted in any case.

11. Having given consideration to the controversy involved, I am of the view that the exercise of discretion by the first Appellate Court in condoning the delay in filing the appeal in the attendant circumstances of the case was not legal and proper. The 'reasons given for condoning the delay in preferring the appeal are that Ahmad Zaffar respondent was in England; that he learnt of decree on 21-1-1975; that since the plaintiff himself had pleaded that the suit land was purchased for Rs. 3,500 determination of price at Rs. 2,190 by the attorney of the respondent was apparently collusive. Now the above factors by itself are not sufficient grounds for condoning the delay. The mere living of the respondent abroad does not give him right to file the appeal out of time; there was no material placed on record to show that he attained knowledge of the decree of the trial Court on 21-1-1975, the allegation of collusion between the petitioner and the attorney of the respondent did not stand established and the mere fact that Rs. 3,500 was pleaded as the amount of sale price would not make the market value to be the same. The issue being determination of market value, it could be found to be less than the price that may have been paid by the respondent.

12. Apart altogether from the above position, the absence of any explana tion for the period 21-1-1975 to 17-2-1975 the dates on which the know ledge was admittedly detained by the respondent and the copy was applied for is conspicuous and could not have been condoned as the well-settled principle is that each day delay has to be explained in filing the appeal if presented belatedly. The contention raised by the learned counsel for the petitioner that - the discretion exercised by the lower Appellate Court in condoning the delay in filing appeal was not warranted in law, has, therefore, great force and is sustained.

13. The contention raised by the learned counsel for the respondent in this regard has no merit. The plea raised is that since the decree was passed on the basis of a statement made by the attorney for the making o which statement he had no authority under the Power of Attorney, the decree was void. Now a decree passed in the circumstances as are presented by the case in hand cannot be said to be void though it may be erroneous. There is a difference between a void order and a wrong order. The remedy against the wrong order ought to have been availed by preferring an appeal within the period of limitation prescribed and if it had been filed after the period of limitation, then the same principle would apply for condoning the delay in filing it as would apply to any other matter.

14. On merits also the contentions raised by the learned counsel for the petitioner have force. The decree passed by the trial Court was apparently not on the basis of a compromise but one of consent of the parties as to the market value of the land in dispute. It thus fell manifestly within the purview of section 96(3) of the Code of Civil Procedure and no appeal was maintainable against it.

15. It has also been rightly pointed out by the learned counsel for the petitioner that the remedy for the respondent if he was aggrieved by the decree of the trial Court as having been obtained fraudulently and collusively was to have it set aside by filing a suit or to have claimed damages against his own attorney. There is a difference between fraud practised on the Court and fraud and collusion inter se the parties. In the former case the v order or decree that may be obtained may be void, but in the latter case where the fraud is alleged inter se the parties which is the position in the case in hand, the remedy is to have the decree set aside through a suit. The authorities relied by the learned counsel for the petitioner in this regard are squarely applicable to the facts of this case.

16. The contention raised by the learned counsel for the respondent that the order was appealable under Order XLIII, rule 1(m) is misconceived as it was not a compromise recorded by the Court, but a consent decree only.

17. As to the last contention raised by the learned counsel for the respondent suffice it to say that the remedy for the respondent may be to have the decree set aside as having been obtained collusively and/or to have claimed damages from his own attorney. Remand in the circumstances of this cash especially when the appeal was filed out of time and without sufficient cause having been shown for filing it belatedly is not called for.

18. Before parting it may also be pointed out that the contention of the learned counsel as to the application under section 5 of the Limitation Act being not maintainable, in view of the provisions of section 139 of the Code of Civil Procedure read with High Court Rules and Orders mentioned above also has force. In view of the foregoing discussion this revision is accepted and the judgment dated 1-12-1975 passed by the learned District Judge, Jhang is set aside, but in the peculiar circumstances of the case the parties are left to bear their own costs. M. A. K. Petition accepted.