2000 PLP 1054 (YLR)

PLD 1997 SC 351 (Province of Punjab v. Dr. S. Muhammad Zafar Bokhari; 1991 SCMR 1399 (Pakistan Defence Officers Housing Authority v. Mst. Khadeja Bibi). He further stated that nobody should be penalised by the act of the Court. It is admitted fact that the appeal of the appellants was admitted for regular hearing by the learned District Judge, Faisalabad on 23‑2‑1988. The appellants engaged Senior Counsel Ch. Muhammad Bashir who filed appeal before the District Judge Faisalabad, therefore, appellants were vigilant and should not be penalised by the act of their Advocate. He further stated that appellants filed appeal in time before the District Judge who returned the same after considerable time. Therefore, application of the appellants for condonation of delay be accepted on the principle laid down by the superior Courts in the following judgment: (1995 SCNIR 584) .Sherein and 4 others v. Fazal Muhammad and 4 others.‑

5. Learned counsel for the respondents/ defendants contended that valuation for the purpose of court‑fee and jurisdiction mentioned in para.9 of the plaint was Rs. 2,28,669.03 and the same was not denied by the appellants/defendants in their written statement. The learned Trial Court also did not change the jurisdictional value as is evident from the decree sheet prepared on 31‑1‑1988 which reveals the same as Rs. 28,669.03. He further urged that valuation mentioned in the plaint has to determine the forum of appeal under section. 18 of Civil Courts Ordinance, 1962, as the law laid down by the superior Courts in the following judgments: ‑‑‑ PLD 1987 SC 284 (Muhammad Nawaz v. Sher Muhammad), 1987 SCMR 1139 (Abdul Majid v. Muhammad Walayat), PLD 1987 Lah.572 Zafar v. (Muhammad Yousaf Ahsan), PLD 1992 Lahore 89 (Nazir Ahmad v. Muhammad Tahir) and Un‑reported judgment in Criminal Revision No 6 of on 9‑12‑1998 He further urged that appellants filed appeal before the District Judge on 22‑2‑1988 and the respondents raised objection regarding maintainability of the appeal before the District Judge on 5‑3‑1989 but the appellants failed to withdraw the appeal and to file the same before this Court till the same was returned by the learned District Judge vide order, dated 8‑7‑1989. The appellants also filed Civil Revision No. 1955 of 1989 on 22‑7‑1989 before this Court against the order of the District Judge, dated 8‑7‑1989. The same was dismissed by this Court on 11‑3‑1990. He further stated that memo of grounds of appeal was returned by the District Judge to the appellants vide order, dated 8‑7‑1989 but the appellants did not file appeal immediately before this Court. The same was filed after considerable delay on 22‑7‑1989. He further urged that the appellants have to explain the delay of each delay which they have failed to explain. Therefore, the appellants committed gross negligence. This appeal should be dismissed as time‑barred as the appellants have taken only one ground for condonation of delay that they engaged a Senior Counsel. Negligence of the counsel is the negligence of the party and party should have to be penalised as the principle laid down by the Hon'ble Supreme Court in the following judgments: ‑‑‑ PLD 1977 SC 102 (Abdul Ghani v. Ghulam Sarwar), 1988 SCMR 2 (Islam‑ud‑Din v. Allah Nawaz), 1984 SCMR 890 (Mst. Mehmoodan Begum v. Manajor Malik Muhammad Ishaque), 1975 SCMR 259 (Muhammad Sharif v. Muhammad Ali and others), PLD 1991 SC 957 (Ghulam Ali v. Akbar alias Akoor and another), PLD 1997 SC 397 and 1998 SCMR 2296 (Syed Haji Abdul Wahid and another v. Syed Sirajud Din). The Hon'ble, Supreme Court considered Sherin and 4 others v. Fazal Muhammad and 4 others (1995 SCMR 584) in the latest judgment and did not approve the same in (1998 SCMR 2296). He further urged that on merits this Court has already dismissed the appeal of the appellants on 15‑4‑1987 as the law laid down by the Hon'ble Supreme Court in PLD 1989 SC

771. He further urged that this Court decided the appeal in accordance with the law laid down by the Hon'ble Supreme Court in the aforesaid case. He further urged that appeal was decided by this Court when the pre- emption law was not framed by the legislature and this Court has no jurisdiction to review the judgment of this Court, dated 15‑4‑1987. This Court after considering the case on merits dismissed the appeal. He further urged that decree, dated 31‑1‑1988 was passed in favour of the respondents as law stood on that date on the basis of the law laid down by the superior Courts in the following judgments: ‑‑ 1987 MLD 2906, 1988 CLC 151, PLD 1987 Lahore 358 and PLD 1989 SC 771.

6. We have considered the contentions of the learned counsel for the parties and perused the record ourselves. It is better and appropriate to reproduce the facts in chronological order to resolve the controversy between the parties: ‑‑‑ (i) That the respondents/defendants filed suit for pre‑emption on 16‑1‑1982. (ii) That para.9 reveals the valuation of suit both for the purpose of court‑fee and jurisdiction as Rs. 2,28,669.03. (iii) Written statement para.9 not denied. (iv) Suit decreed, dated 31‑1‑1988. Decree sheet was prepared mentioning the same, amount. Rs. 22,669. (v) Appeal filed before the District Judge on 22‑2‑1988. (vi) District Judge admitted for regular hearing on 23‑2‑1998. (vii) Respondents/plaintiffs raised objection about the maintainability of the appeal before the District Judge on 5‑3‑1989. (viii) On 8‑7‑1989 memorandum of appeal was returned by the District Judge. (ix) R.F.A. No. 106 of 1989 filed on 22‑7‑1989. (x) The appellants also filed C.M. No.1955 of 1989 on 22‑7‑1989 against the order of the District Judge, dated 8‑7‑1989. (xi) Revision was dismissed on 11‑3‑1990. The Hon'ble Supreme Court has laid down a principle that Civil Court has no jurisdiction to pass any decree in any pre-emption suit after 31‑7‑1986 in said Kamal's case. It is admitted that in the present case decree was passed on 31‑1‑1988 after the target date i.e., 31‑7‑1986. Therefore, judgment and decree is nullity in the eyes of law as the principle laid down by the Hon'ble Supreme Court in the following judgments would be attracted:- PLD 1986 SC 360 (Government of N.W.F.P. v. Sadi Kamal's case), PLD 1988. SC 287 (Sardar Ali v Muhammad Ali) and PLD 1990 SC 899 (Mst. Aziz Begum v. Federation of Pakistan). It is also admitted fact that the appellants have to file an appeal before this Court as the valuation for the purposes of court‑fee and jurisdiction was mentioned in plaint more than 2,00,000 but the appellants filed an appeal before the District Judge which was admitted for regular hearing and the same was returned to the appellant on 8‑7‑19.89. In similar circumstances, the Hon'ble Supreme Court condoned the delay in Sherin v. Fazal Muhammad's case 1995 SCMR 584 and observed as under: ‑‑‑ "We feel that omission on the part of Darned District Judge to take timely action is the major cause of refilling of the appeal by the appellants, in the High Court, out of time. They have been the victim of the act of the Court which furnishes sufficient cause under. section 5 of the Limitation Act, for condonation of delay. The fact that after receiving the memorandum of appeal from the District Court, some time was consumed by the appellants, in presenting it to the High Court, in the circumstances of the case is inconsequential. We are, ‑therefore, inclined to condone the delay in presenting the ~ memorandum of appeal to the High Court. " The abovementioned judgment of the Hon'ble Supreme Court was considered in Syed Haji Abdul Waheed's case (1998 SCMR 2296) and the relevant observation is as follows:‑‑‑ "The learned counsel for ‑‑the appellants contended that above view expressed in Sherin's case is in conflict with the view expressed by this Court in Abdul Ghani's case and as the numbers of Hon'ble Judges in both the cases were equal, the matter may be referred to a larger Bench to resolve the conflict. It is true that Sherin's cast has not noticed the decision in Abdul Ghani's case. However, after examining the ratio decidendi of both cases which we have reproduced above, we are of the view that there is no conflict in the opinion expressed in the above two cases." Cases relied by the learned counsel for the respondents are not in accordance with the recent trend of the Hon'ble Supreme Court. The Hon'ble Supreme Court has laid down a principle after the addition of Article 2A of the Constitution that cases must be decided on merits instead of technicalities. In Sheri Muhammad's case PLD 1989 SC 532, the relevant observation is as follows: ‑‑‑ "A party should not be denied a relief on account of technicalities in the procedural law, as the same is formed for the purpose of regulating the legal proceedings, they are extending and designed to foster to cause of justice rather than to defeat it. " Subsequently, the aforesaid judgment was also considered in Mst. Sarearan's case 1993 SCMR 363 and followed the same principle. It is settled proposition of law that Limitation Law should be liberally construed without giving violence to intention of legislature. It must be applied for benefit of plaintiff. We are fortified by the reported judgment 1988 CLC

332. It is also settled principle of law that the rules framed in the Code of Civil Procedure are Rules made for the advancement of justice and they should not, as far as possible be allowed to defeat the ends of justice. We are fortified by the judgment of Muhammad Sarwar's case 1980 CLC

946. The Hon'ble Supreme Court has laid down a principle in Khuda Yar's case (PLD I 1975 SC 678); that technicalities should not be the hindrance in the way of justice. The relevant observation is as follows‑‑‑‑ "The technicalities unless offering an insurmountable hurdle should not be allowed to defeat the ends of justice. " We are also fortified by the following judgments:‑‑‑ 1999 MLD 2146 (Alim Din and 14 others v. Muhammad Ali and 35 others) and 1999 MLD 2202 (MA. Adam Jee Construction Company Ltd. v. Government of Punjab). Since the decree of the Trial Court is void, therefore, appeal cannot be dismissed on ground of Limitation on the principle laid down by the Hon'ble Supreme Court in Muhammad Masi‑uz‑Zaman v. Federation of Pakistan (PLD 1992 SC 825). The learned Trial Court has no jurisdiction to decree the suit. It is settled proposition of law that judgment of the Hon'ble Supreme Court is binding on each and every organ of the State by virtue of Article 189 of the Constitution. The Hon'ble Supreme Court has also declared the law against the injunction of Islam in PLD 1970 SC 899 (Mst. Aziz Begum's case). Therefore, decree of the Trial Court is patently illegal and is non‑existence in the eyes of law, as the same was passed in clear violation of law laid down by the Hon'ble Supreme Court in Said Kamal's case (supra), even otherwise this Court has no jurisdiction to uphold the decree of the Trial Court as the law laid down by the Hon'ble Supreme Court in the following judgments: ‑‑‑ PLD 1990 SC 899 (Mst. Aziz Begum's case v. Federation of Pakistan), 1994 SCMR 814 (Khush Hall Khan v. Rao Nawaz and others) and 1993 SCMR 2050 (Sair Ameer Khan v. Mst. Shahzadi Khatoon and others). In view of what has been discussed above, we accept this appeal with no order as to costs. Q.M.H./M.A.K./M‑54/L Appeal allowed.