1995 PLP 1042 (MLD)

Procedure on application for admission of appeal.‑‑‑Provided that the Court shall reject the application unless, upon a perusal thereof and of the judgment and decree appealed from, it sees reason to think that the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust. Order XXXIII: (3) Presentation of application.‑‑‑Notwithstanding anything contained in these rules, the application shall be presented to the Court by the applicant in person, unless he is exempted from appearing Court, in which case the application may be presented by an authorised agent who can answer all material questions relating to the application, and who may be examined in the same manner as the party represented by him might have been examined had such part attended in person." It is clear from the two rules reproduced above that when appellant is unable to pay the requisite court‑fee on the memorandum of appeal then‑‑‑ (a) he has to present the same with an application praying that he may be allowed to file the appeal as a pauper; and (b) such application is to be presented by the applicant in person unless he is exempted from appearing in the Court, in that case it shall be A presented by an authorised agent. While according to the proviso to rule 1, Order XLIV, C.P.C. the Court shall reject the application unless the judgment and decree appealed from‑‑‑ (i) is contrary to law or some usage having fore of law; or (ii) is otherwise erroneous or unjust. This is in contrast to the provisions of section 100, C.P.C., which would be attracted after application is allowed. The inquiry into the pauperism is dealt with by rule 2 which provides that the inquiry may be made either by the appellate Court or under its order by the Court from whose decision appeal is preferred. This is again subject to proviso that if the applicant was allowed to sue or appeal as pauper in the Court below then no further inquiry in connection with the pauperism shall be necessary unless the Appellate Court feels necessary. The application is to be presented in person in view of the provisions of rule 3, Order XXXIII, C.P.C. unless the applicant is exempted from personal appearance. This proposition becomes clear from the following portion of the judgment in the case of Inderwati (supra):‑‑‑ "There is nothing in the petition to the effect that the applicant is a Pardanashin lady and for this reason cannot appear in Court. In Chapter 1‑B, Volume 5 of the Rules and Orders of this Court it is laid down that no such application shall be received from any person other than the alleged pauper, unless it, appears on the face of the application that the alleged pauper is a person who is exempt under section 132 or 133, Civil P.C., from personal appearance in Court. The application is thus defective as it does not appear on the face of the application that the alleged pauper is a person who is so exempt. Further, the power of attorney in favour of Sada Nand does not specially authorise him to present an application for the applicant to appeal in forma pauperis. The power of attorney only gives him power to conduct the appeal. In these circumstances there has been no proper presentation by a person duly authorised to present it. This follows from 28 IC 448." It was contended that there was no proper application before the Court, therefore, it was dismissed. The same is exactly the position in the case in hand. Although the appellants have moved C.M. 752 of 1985 under Order XLIV, Rules 1 and 2, C.P.C. seeking permission to file the appeal as pauper, the application was liable to be dismissed. But this controversy is no longer an alive issue because subsequently the appellants moved C.M. 613 of 1986 wherein they prayed that they may be allowed to affix court‑fee of Rs. 2,750.50 on the memorandum of appeal. Therefore, the application for permission to file appeal as pauper became infructuous. Therefore, these two' preliminary objections are only of academic interest and have no bearing on the decision of this appeal. Now coming to the third preliminary objection. It is argued that the appeal is barred by 5 days. It is submitted that the judgment of the lower appellate Court is dated 10‑4‑1985 while the appellants applied for copies on 15‑4‑1985 and certified copies were delivered to them on 20‑5‑1985 and the memorandum of appeal was presented in this Court on 19‑8‑1985. It is submitted that limitation of ninety days expired on 15‑8‑1985. On the other hand, the learned counsel for the appellants argued that the High Court remained close for long vacations in the year 1985 from Saturday the 13th July, 1985 to Thursday the 12th September, 1985. The appeal, therefore, could be filed on re‑opening of the Court on 14‑9‑1985 in view of the provisions of section 4 of the Limitation Act whereas it was filed on 19‑8‑1985 and as such, it was well‑within time. The learned counsel in this behalf has referred to the judgment reported as Rasul Bakhsh v. Ghulam Qadir (PLD 1960 (W.P.) Kar. 741) and notification of summer vacation, dated 14th April, 1985. The learned counsel for the respondents while summing up the arguments on this preliminary objection submitted that now the practice is that the Benches as well as Registry remain open throughout vacations and the appeals, petitions etc. are received even during long vacation with the only difference that the cases which are not of urgent nature are not fixed for hearing during the vacations. It is added that even the appellants had riled the appeal on 19‑8‑1985 as per this practice while the Courts reopened on 14th September, 1985. It is argued that the appeal was time‑barred and the appellants are not entitled to the benefit of section 4 of the Limitation Act. In this behalf, the learned counsel has referred to the judgment reported as Gur Bux Singh. v. Sohanlal (AIR 1952 Cal. 542). I have considered this argument. The objection seems to be valid because in the case of Rasul Bakhsh (supra) it was held that no civil judicial work except of urgent nature is to be conducted during annual vacation. This was in view of rule 14 of the Sindh Civil Courts Rules which reads as under:‑‑‑ "Except in case of great urgency no judicial work shall be done on Sundays and sanctioned holidays and during vacations:" While sub‑rule (4) of rule 13 provided that:‑‑‑ "Suitable arrangement shall be made for urgent work the annual vacation and Court holidays." Besides this, reference can also be made to the cases reported as National Bank of Pakistan v. Bawany Industries Limited and others (1992 CLC 1553), Muhammad Ramzan v. Ahmad Bux and another (1991 SCMR 716) and Abdul Razzak and others v. Settlement and Rehabilitation (Lands), Multan and another (1975 SCMR 455). These cases are not applicable. This was the position before the establishment of Benches at Bahawalpur, Multan and Rawalpindi in the year 1981. The position thereafter has materially changed. The policy is to provide justice to the citizens expeditiously and at the door step. The result is that Judges work temporarily at the Principal Seat as well as Benches throughout the summer vacation. It is relevant to mention here para. 2 of the notification dated 14‑10‑1985 referred to by the learned counsel for the appellants. The same reads as under:‑‑‑ "

2. During the period of vacation, petitions will be received daily from such persons as may choose to present them, except on Friday and public holidays. All such petitions and other miscellaneous petitions as cannot be disposed of at once will be heard on the re‑opening of the Court after vacation on such dates as may be fixed." It is clear, therefore, that the Court was functioning. This is not all. The appellants filed this appeal during the summer vacation as urgent and the same was entertained but as they failed to specify the ground of urgency, therefore, it was not put up for hearing. This cuts at the root of the arguments of the learned counsel for the respondents. Therefore, the case of the appellants is not covered by section 4 of the Limitation Act. It is treated as a regular appeal but it is barred by 5 days. I am fortified in my view by the judgment in the case of Gur Bux Singh (supra) relied upon by the learned counsel. In Calcutta business during the vacation is governed by Chapter 3 of the High Court Rules and Orders. It provided that "during the Easter, Long and Christmas Vacations (provision being made for urgent business)". The High Court was to remain open unless it is ordered by the Chief Justice that Courts shall be closed. The relevant portion reads as under:‑‑‑ "

7. Whether a Court is or is not `closed' within the meaning of section 4 of the Limitation Act of 1908 is in each case a question of fact and must depend on the practice which prevails in the particular Court. For example, the Original Side of the High Court of Bombay is not `closed' during the summer vacation within the meaning of that section so far as certain classes of business are concerned, such as the reception of plaints. Accordingly a suit on the Original Side of the Bombay High Court should be filed in the vacation if the period of limitation for instituting it expires during the vacation. So `DHARAMSI MORAR‑HARGOVANDAS SHAH', 51 Born. 848.

8. It is entirely then a matter of practice and I have already stated that our practice is, that is to say, the practice prevailing in our Court. That our Court has the power to make the Rules has been recognised by a Bench decision of this Court, `Udoy Chand v. Khetsidas Tilochand', 51 Cal. 905; and it would profit nothing to reiterate the reasons given by the learned Chief Justice (Sanderson, CJ.) in his judgment in that case. Therefore, in my view this Court was not `closed' on the date when S.R. DF as Gupta, J. made his order. The first ground of counsel, therefore, fails."

7. In support of the last preliminary objection it was argued that since no court‑fee was affixed on the memorandum of appeal, therefore, the same would be considered valid only when court‑fee is paid on the same. It is submitted that in this appeal the court‑fee was affixed on 1‑10‑1987, therefore, the appeal was hopelessly time‑barred. The learned counsel in this behalf has referred to Balkaran Rai and others v. Gobind Nath Tiwari and another ILR (1890) 12 All. 129).

8. On the other hand, the learned counsel for the appellants argued that the Court was permitted making up the deficiency in court‑fee even after the date of limitation and once the deficiency is made good the appeal would be deemed properly instituted right from `inception. The learned counsel in this behalf has referred to Muhammad Ishaque and others v. Muhammad Yousaf Zaki and others (PLD 1985 Lah. 448) and Siddique Khan and others v. Abdul Shakur Khan and another PLD 1984 SC 289.

9. The admitted position is that the appeal on 19‑8‑1985 was presented alongwith application under Order XLIV, C.P.C. to allow the appellants to file the appeal in forma pauperis. The appeal was not properly presented as discussed above. The application i.e. C.M. 752/85 was still pending when the appellants moved another application being C.M. 613/86 on 17‑6‑1986 wherein they prayed that delay in making application for filing appeal as forma pauperis may be condoned, and in the alternate the appellants be allowed to deposit Rs. 2,750.50. It seems that the respondents entered appearance through their learned counsel as back as 5‑3‑1986 and he raised preliminary objection as to the limitation. The appellants were then compelled to seek condonation in filing appeal as paupers or in alternate they showed their willingness to deposit the requisite court‑fee. Thereafter, it was adjourned for many dates. The appellants were ultimately allowed to deposit Rs. 2,750.50 as court‑fee vide order, dated 31‑3‑1987. Thereafter, the appeal came up for hearing on 12‑3‑1988 when nobody was present on behalf of the parties. Then on 4‑6‑1988 when learned counsel for the appellants was not available. The court‑fee was ultimately paid by the appellants on 1‑10‑1987.

10. I am conscious of the fact that while the appellants were allowed to deposit the court‑free no time was fixed and at the same time, it was made subject to all just and legal exceptions. The appellants failed to present the application to file the appeal as pauper in the prescribed manner while the office failed to take notice of the said application. The result was that this was treated as R.S.A. right from the first day but the question of payment of court fee was presumably postponed in view of the application to file appeal as pauper. This way the office of this Court was also partially if not wholly responsible for this confusion, as to payment of court‑fee, therefore, I exercised the jurisdiction and extend the time to make up the deficiency in view of the rule laid down by the Hon'ble Supreme Court in the case of Siddique Khan and 2 others (supra).

11. Now coming to the merit. It is a judgment of variance, therefore, the whole of the evidence on record is to be considered. The appellants produced Atta Muhammad as P.W.1, Wali Muhammad as P.W.2, Suleman as P.W.3, Muhammad Inayat Ali, Girdawar as P.W.4, Ahmad Saeed as P.W.5 while Abdul Ghafoor appellant No. 2 appeared as P.W.6. The respondents examined Abdul Aziz as D.W.1, Waryam as D.W.2, Muhammad Ashraf as D.W.3, Allah Ditta Patwari as D.W.4 while Muhammad Sharif‑respondent No. 1 appeared as D.W.5. The statements of P.Ws. 1, 3, 4 and 5 do not help the appellants to prove their case. This way we are left only with the statements of P.W.2 and P.W.6. The land was mortgaged to Wali Muhammad P.W.2 who was admittedly paid off and land redeemed through Mutation No. 160 sanctioned simultaneously with Mutation No.

159. He admitted that the respondents were present there at the time of the sanction of the Mutation No.

160. He stated that he is not aware that the funds for redemption were supplied to the plaintiffs by the defendants. This way the statement of appellant No. 2 as P.W.6 remained uncorroborated by any independent evidence. He is a matriculate and a School Teacher. He had denied the presence of defendants at the time of the sanction of Mutation No. 160.

12. On the other hand, a nominal amount of Rs. 1,500 only was paid as earnest money while major part of the sale consideration was paid at the time of the sanction of the mutation. This not only is supported by D.Ws. 1, 2 and 4 but also by the Mutation No. 159 and confirmed by Mutation No. 160 placed on record as Exhs.Pl (Exhs. P3) and P2 respectively. (The trial Court has assigned different exhibit numbers to the documents at different times.) It is clear from the mutation, of redemption of the land Exh.P2 that the appellants have sold their land to Muhammad Sharif etc., and mortgage money was paid by the present respondents. This mutation is admitted by the appellants and they had not challenged. This coupled with the possession, which is admittedly of the respondents completely falsifies the appellants' plea. The lower appellate Court has properly appreciated the evidence of the parties. The findings recorded by the trial Court were reversed for valid reasons as is clear from paras. 19 and 20 of the judgment, which reads as under:‑‑‑ "

19. After weighing the respective contentions of both the parties I have come to the conclusion that the reasons given by the learned trial Court in determining this issue are not well‑founded. He has not taken into account the effect of the documents of mutation which is fully entered by the Revenue Officer in the discharge of his official duty. The recitable in the impugned mutation have got the presumption of correctness although rebuttable but the plaintiffs/respondents have not been able to rebut the same. The possession has been proved to be with the dependants/appellants since the attestation of mutation as per Exh. D‑2 which is a copy of Khasra Girdawari. The plaintiffs/respondents also did not produce the Revenue Officer although they submitted an application for this purpose but subsequently gave him up. Mere technical defects in mutation proceedings are not sufficient to invalidate the transaction of sale itself. Minor discrepancies in the statements of D.Ws. are not detrimental to their stand. The land was got redeemed by the defendants appeared from Mutation No. 160 which is not challenged. The delivery of possession to the defendants is another strong piece of evidence in defendants' favour. The plaintiffs have come with false case. That due to murder case they wanted to get the land redeemed but subsequently P.W.5 Abdul Ghafoor plaintiff admitted that it was mortgaged after registration of murder case to Wali Muhammad alleged relative of defendants/appellants Nos. 1 to 6.

20. Under these circumstances by assessing the evidence of the parties, the scale tilts in favour of the defendants/appellants and it has been established that the plaintiffs/respondents sold the suit land to the defendants/appellants and got the sale mutation attested in their favour and the possession of the property was also delivered to them hence the finding of the learned trial Court on this issue is not sustainable and the, same is hereby reversed and the issue is decided in favour of the defendants/appellants."

13. This is not end of the matter. The lower appellate Court failed to apply law correctly. The provisions of sections 54 and 107 of the Transfer of Property Act, 1882, were made applicable to the Bahawalpur State vide Notification dated 28‑5‑1931, therefore, the oral sale is not legal. However, the possession of the respondents is fully protected in view of the judgments in the cases of Muhammad Amin v. Mian Muhammad (PLD 1970 BJ 5), Muhammad Saeed and another v. Province of West Pakistan and others (PLD 1964 SC 572) and Haji Sharif Khan and another v. Raja Abdul Rehman and 6 others (PLD 1977 Kar. 814). This Court has examined this question at length in a recent judgment in R.S.A. No. 62 of 1972 titled Muhammad Ali etc. v. Muhammad Amir. It was held in paras. 19 and 27 as under:--

19. Now, I take up the argument of the learned counsel for the appellant that in this case, the principle of pari delicto would apply, then the party in possession was to be preferred. Mr. Muhammad Mahmood Bhatti, Advocate, as well as Chaudhry Naseer Ahmed, Advocate, the learned counsel appearing as amicus curiae, also subscribed to the view with reference to the judgments of the superior Courts. Suffice it to refer to the judgment of Mian Muhammad Saeed and others ( PLD 1964 SC 572) in which the Hon ble Supreme Court held as under:-- In these circumstances, it is clear that that the petitioners in trying to undo the transaction of sale and to get back their property were in fact attempting to take advantage of their own fraud. This conduct on their part would contravene the well‑known principle embodied in the Legal Maxim Nullus commodum capere potest de injuria sua propria (Co. Ltt. 148 (b) (No man shall take advantage of his own wrong). In the precedent case the appeal of the plaintiff was ultimately dismissed. This Court in the case of Muhammad Amin etc. (PLD 1970 BJ 5) after referring to a large number of precedents concluded that the law would help the one in possession. The case was almost parallel to the case in hand. The case of Haji Sharif Khan and another v. Raja Abdur Rehman and 6 others (PLD 1977 Kar. 814) is also on the same principle.

27. It may be made clear here that nowhere in this judgment it has been recorded that the report Exh.Pl amounted to sale. It has only been held that this writing Exh. P‑1 recorded by Patwari at the instance of the plaintiff and duly signed by him furnishes a legal and complete defence to the defendants to 'preserve their possession in view of section 53‑A of Transfer of Property Act:'

14. The matter can be looked from yet another angle. The primary relief sought by the appellants is of declarations. This Court has discretion to refuse the relief in view of clear provisions of section 42 of the Specific Relief Act even if the case is proved. The learned counsel for the respondents in this behalf has rightly referred to Manzoor Hussain etc. v. Wali Muhammad etc. (PLD 1965 SC 425) and Ghulam Rasul and others v. Muhammad Anwar and others (1969 SCMR 254) and judgment in the case 0f Muhammad Amin (supra). The appellants having not come with clean hands are not entitled to discretionary relief of declaration by this Court.

15. The upshot of the above discussion is that the appeal is dismissed with costs. AA./K‑173/L Appeal dismissed.