P L D 1970 Supreme Court 196 (PLP)

WAHIDUDDIN AHMAD, J.-This appeal by special leave is against the order of the High Court of West Pakistan, Lahore, dated the 25th October 1966, whereby Regular Second Appeal No. 446 of 1966, brought by the appellant was dismissed. The facts giving rise to this appeal are that appellant Shah Muhammad brought a snit against respondents for declaration that he is the owner of 3/4th share of land measuring 1G8 kanals entered in Khata No. 75, Khatooni Nos. 310 to 314, situated in Chak No. 460, Tehsil and District Sheikhupura. This suit was decreed by compromise on the 8th March 1961, by the Civil Judge, Sheikhupura. The decree was challenged by the respondents in Civil Suit No. 74 of 1963, before the Civil Judge, Third Class, Sheikhupura, on the ground that it was void and illegal for having been obtained by fraud. In the suit, the trial Court framed four issues on which both the parties led evidence. On the 9th April 1964, the learned Civil Judge framed another additional issue as issue No. 3-A and adjourned the case to 17th June 1964, for the evidence of the parties. The appellant failed to appear in the Court and proceedings against him were taken ex parte. The case was adjourned to 30th June 1964, for argument. The appellant again failed to appear on that date and an ex parte decree was passed against him. Thereupon, the appellant filed an application on the 6th July 1964, in the trial Court under Order IX, rule 13, C. P. C. for setting aside the ex parte decree. This application was rejected on the 11th October 1965, on the ground that the appellant had failed to make out a sufficient cause for setting aside the decree. The appellant then filed an appeal against the said order which was dismissed by the Additional District Judge, Sheikhupura, by order, dated the 7th February 1966. In this order that learned Additional=District Judge observed that the trial Court has passed the decree on merits and it was open to the appellant to file an appeal against it. The appellant challenged this order in Civil Revision No. 269 of 1966, in the High Court of West Pakistan, Lahore, which was dismissed on the 25th October 1966. After the decision of the Additional District Judge, dated the 7th February 1966, the appellant filed Civil Appeal No. 56 of 1966 in the Court of Additional. District Judge, Lahore at Sheikhupura, against the ex parte decree passed against him on the 30th June 1964. The appellant claimed condonation of delay under section 14 of the Limitation Act. The learned Additional District Judge held that as the appellant was not pursuing his remedy in a wrong Court, the provisions of section 14 of the Limitation Act were not attracted. He further refused to condone the delay under section 5 of the Limitation Act. There upon, the appellant filed Regular Second Appeal No. 446 of 1966, which was dismissed in limine by a learned Single Judge of the West Pakistan High Court on the 25th October 1966. The learned Single Judge held that there was no explanation on the record as to why there was delay in filing the appeal from 7th February 1966 to the t9th March 1966, and as the appeal was filed beyond limitation, it was bounden duty of the appellant to explain the delay for each day beyond the normal period of limitation. The appellant challenged this order in Civil Petition for Special Leave to Appeal No. 14 of 1967. Leave was granted in this case on the 13th April 1967, to the appellant to consider the question whether the appellant was entitled to condonation of delay as he filed the appeal at a time when he was still pursuing his remedy under Order 1X, rule 13, C. P. C. in the High Court and that the final refusal of this remedy was by order made about 8 months after he filed his appeal from the decree. Syed Munir Hussain, learned counsel for the appellant, has contended that the time taken by the appellant in the disposal of his application under Order IX, rule 13, C. P. C., should be condoned under section 5 read with section 14 of the Limitation Act. The contention of the learned counsel has not impressed us. Section 14 of the Limitation Act has no application to the facts of the present case. Under that provision of law time can only be excluded where proceeding has been prosecuted with due diligence in good faith in a Court which, from defect of jurisdic tion, or other cause of a like nature, is unable to entertain it. It is not disputed that in the present case the appellant was pursuing his remedy before a Court of competent jurisdiction. It was on his failure to get the necessary relief that he had filed an appeal against the ex parte decree passed against him. The question, however, remains whether the appellant is entitled to the exclusion of the time which he took in pursuing his remedy under Order IX, rule 13, C. P. C. In our opinion, the appellant is not entitled to the exclusion of any such time. It will be seen that the appellant had two concurrent remedies open to him at the-time when the ex parse decree was passed against him. He could file an application under Order IX, rule 13, C. P. -C. He could also file an appeal against ex parte decree tinder section 96 of the Code of Civil Procedure. The appellant made his choice and filed an application under Order IX, rule

13. C. P. C. After failing in that application on merits he could fall back upon the remedy which was open to him at the time when the original decree was passed, if it was within time. Merely because by his own choice he did not file an appeal against the original decree, it cannot be said that there is sufficient cause within the meaning of section 5 of the Limitation Act for not filing the appeal within time. The appellant was not diligent. He could file an application under Order IX, rule 13, C. P. C. and at the same time filed an appeal against the original ex parte decree. This aspect of the question has been considered in several decisions of the Indian High Court in pre-Partition days and the consensus opinion is that where an application under Order IX, rule 13, C. P. C. for setting aside on ex parte decree failed on the merits, the ' time spent in prosecuting the proceedings cannot be deducted under section 5 for the proper time allowed for filing an appeal. Reference in this connection may be made to the cases of KoTha Lin Bicin. and another v. Ko Hla Kye and another (A I R 1930 Rang. 41), Rajendra Nath Kanrar v. Kamal Krishna Kundu Chowdhury (A I R 1932 Cal. 558) and Jotiba Limbaji Kanasheenavar v. Ramappa Jotiba Kanashenavar (A I R 1938 Rom. 459). The learned counsel for the appellant has failed to make out any ground to depart from this view. It was also contended by the learned counsel for the appellant that on the decision of the Privy Counsel in the case of Brij Indar Singh v, Kanshi Ram (1 L R 45 Cal. 94) time should be excluded which was taken to prosecute the application under Order IX, rule 13, C. P. C. It was held in that case that the time taken in prosecut ing the proceedings in the nature of review of a judgment should be excluded for filing the appeal against the original decree. The view taken in that decision cannot be applied to the facts of the present case. In the first place it was on account of a practice, which has developed in India in this behalf that this view was taken. There was a unanimous view of the High Court in India that :- "If a party presents an application for review of judgment within the ordinary period limited for appealing, the time occupied by the Court in disposing of such application will not be reckoned among the days limited for appealing, but will be added thereto, and a memorandum of appeal represented within such extended period will be received as presented within time." Their Lordships did not consider it desirable to lay down a contrary view which would have interfered with this practice which was a rule of procedure and had been acted upon for many years and an interference with it was likely to cause great inconvenience. No such practice has been pointed out in respect of an application made under Order IX, rule 13, C. P. C. Secondly, so far as the review petitions are concerned, they can only be filed where no appeal has been filed. If before filing an application for review, an appeal has already been filed and is pending, the Court has no jurisdiction to entertain an application for review. Similarly, where an appeal has been disposed of, an application cannot be made to the trial Court to review its decision. This is not the case with the application moved under Order 1X, rule 13, C. P. C. As already stated there is a concurrent remedy available to a party. He can file an applica tion under Order IX, rule 13, C. P. C. At the same time he can also file an appeal. In these circumstances, it will not be desirable to extend the principle laid down in review matters to cases arising under Order IX, rule 13, C. P. C. After hearing the learned counsel for the appellant, we are satisfied that the appellant is not entitled to the exclusion of the time taken by him in pursuing his remedy under Order IX, rule 13, C. P. C. right up to the stage of the High Court. In that view of the matter the appeal of the appellant filed in the Court of Additional District Judge, Sheikhupura, was rightly dismissed. In the result, the appeal is dismissed. In the special circumstances of the case, the parties are directed to bear their own costs. S. Q. Appeal dismissed.