2003 PLP 1300 (SCMR)
MONAZAH PARVEEN — Appellant Versus BASHIR AHMAD and 6 others — Respondents
| Citation | 2003 PLP 1300 (SCMR) |
| Forum / Court | Supreme Court of Pakistan |
| Bench Members | Javed Iqbal and Tanvir Ahmad Khan, JJ |
| Parties | MONAZAH PARVEEN — Appellant Versus BASHIR AHMAD and 6 others — Respondents |
| Primary Law | (a) Civil Procedure Code (V of 1908), (d) Limitation Act (IX of 1908), (b) Limitation Act (IX of 1908) |
Q1: What are the key laws and sections cited in 2003 PLP 1300 (SCMR)?
This judgment primarily cites: (a) Civil Procedure Code (V of 1908), (d) Limitation Act (IX of 1908), (b) Limitation Act (IX of 1908), (c) Civil Procedure Code (V of 1908) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2003 PLP 1300 (SCMR)?
The case was heard and decided by the Supreme Court of Pakistan bench comprising: Javed Iqbal and Tanvir Ahmad Khan, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2003 PLP 1300 (SCMR) (MONAZAH PARVEEN — Appellant Versus BASHIR AHMAD and 6 others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Muhammad Akram Khokhar, Advocate Supreme Court and Asim Jafir, Advocate-on-Record (absent) for Petitioner.
- Nemo for Respondents.
- Date of hearing: 13th May, 2002.
- ----Ss. 5 & 14---Constitution of Pakistan (1973), Art. 185(3)-- Condonation of delay---Wrong advice of counsel---Filing of application under S.12(2), C.P.C. instead of filing of appeal---Application under O. IX, R.13, C.P.C. against ex parte decree was dismissed by the Trial Court---Defendant invoked provisions of S.12(2), C.P.C. for setting aside the ex parte judgment and decree---Such application was dismissed by the Trial Court but Appellate Court in exercise of revisional jurisdiction allowed the application---High Court in Constitutional jurisdiction set aside the order passed by the Appellate Court and observed that the proper course for the defendant was to assail the ex parte judgment and decree by filing an appeal---Defendant filed appeal in Appellate Court afterwards but the same was dismissed being time barred---Plea raised by the defendant was that it was the wrong advice of the-counsel whereby the defendant prosecuted the case in wrong forum-- Validity---Delay could not be condoned on the basis of wrong advice tendered by advocate as it was essential for the defendant to show that he followed the remedy before wrong forum acting with due care and caution on the basis whereof delay could be condoned but the defendant had failed to establish such fact---Conduct of the defendant depicted a careless and callous approach on the basis whereof condonation of delay had rightly been refused by the Appellate Court---Conclusion drawn by the Appellate Court and High Court being well based did not call for any interference---Leave to appeal was refused.
- 3. Heard Mr. Muhammad Akram Khokhar, learned Advocate Supreme Court on behalf of petitioner who mainly argued that the judgment/decree, dated 19-10-1992 passed by learned Civil Judge, Ferozewala, was ab initio void hence the question of limitation does not arise which aspect of the matter escaped notice of learned High court resulting in serious miscarriage of justice. It is urged with vehemence that the learned Appellate Court has not appreciated the legal aspects of the controversy with diligent application of mind and the delay has not been condoned in filing the appeal on flimsy grounds without considering the fact that the judgment/decree, dated 19-10-1992 passed by learned Civil Judge was ab initio void and more so, that the petitioner remained involved continuously in the other Courts and the time consumed in that process should have been taken into consideration while deciding the question of limitation. It is contended that the learned High Court has also failed to appreciate the legal and factual aspects of the controversy in its true perspective and upheld the order of learned Appellate Court without dilating upon the points addressed while arguing the revision petition.
- 4. We have carefully examined the contentions as agitated on behalf of petitioner in the light of relevant provisions of law and record of the case. We have minutely perused the judgment and decree, dated 19-10-1992 passed by learned Civil Judge, order, dated 3-9-1999 passed by learned District Judge and order impugned. We have not been persuaded to agree with learned Advocate Supreme Court on behalf of petitioner that the judgment and decree, dated 19-10-1992 passed by learned Civil Judge was ab initio void for the reason that it could not be declared as ab initio void because it was passed by a Court of competent jurisdiction. It is an admitted feature of the case that appeal preferred in the Court of learned District Judge was time-barred and the application submitted under sections 5 and 14 of the Limitation Act has rightly been I rejected as no plausible justification could be furnished on the basis whereof delay could have been condoned. It is also an admitted feature of the case that the provisions as contained in Order IX, Rule, 13, C,P,C, were invoked after a long period and that too could not be pursued vigilantly and vigorously which was ultimately dismissed for non-prosecution on 2-11-1993. No doubt that an application under section 12(2), C.P.C. has been moved on 13-6-1994 after lapse of about seven months whereas the application under Order IX, Rule 13, C.P.C. was dismissed on 2-11-1993. It may not be out of place to mention here that provisions under section 12(2), C,P.C. were never intended to be a duplication of proceedings provided for in Order IX, Rule 13, C.P.C. C and there was no lawful justification for filing the same. In this regard we are fortified by the dictum as laid down in case titled Ghulam Sarwar v. Muhammad Sarwar (1987 SCMR 1440). This Court was also approached but petition was withdrawn at later stage. The contention of learned Advocate Supreme Court that delay should have been condoned on the basis of wrong advice tendered by Advocate of the petitioner seems fallacious as it is well settled by now that delay could not be condoned on the, basis of wrong advice tendered by Advocate of petitioner before it was essential for the petitioner to show that he followed the remedy before a wrong forum acting with due care and caution on the basis whereof delay could be condoned but the petitioner has failed to establish the said fact. If any authority is needed reference can be made to case titled Syed Haji Abdul Wahid and another v. Syed Sirajuddin (1998 SCMR 2296). On the contrary the conduct of petitioner depicts a careless and callous approach on the basis whereof condonation of delay has rightly been refused by the learned Appellate Court by means of order, dated 3-9-1999 duly concurred by learned High Court by making the following observations:--
Headnotes / Summary
(On appeal from the order dated 20-3-2000 passed by the Lahore High Court, Lahore in Civil Revision No.473 of 2000).
S. 2(9)
Declaring judgment void ab initio
Court of competent jurisdiction
Effect
Judgment and decree passed by Civil Court could not be declared as ab initio void because it was passed by a Court of competent jurisdiction.
Ss. 5 & 14
Scope
No plausible justification having been furnished on the basis whereof delay could have been condoned, the application submitted under S.14 of Limitation Act, 1908, was rightly rejected.
S. 12(2) & O. IX, R.13
Proceedings under S.12(2) & O.IX, R.13, C.P.C.
Scope
Provisions under S.12(2), C.P.C. are not intended to be a duplication of proceedings provided for in O. IX, R.13, C. P. C.
When application under O. IX, R.13, C. P. C. was dismissed then there was no lawful justification for filing the application under S.12(2), C.P.C. Ghulam Sarwar v. Muhammad Sarwar 1987 SCMR 1440 ref.
Ss. 5 & 14
Constitution of Pakistan (1973), Art. 185(3)-- Condonation of delay
Filing of application under S.12(2), C.P.C. instead of filing of appeal
Application under O. IX, R.13, C.P.C. against ex parte decree was dismissed by the Trial Court
Defendant invoked provisions of S.12(2), C.P.C. for setting aside the ex parte judgment and decree
Such application was dismissed by the Trial Court but Appellate Court in exercise of revisional jurisdiction allowed the application
High Court in Constitutional jurisdiction set aside the order passed by the Appellate Court and observed that the proper course for the defendant was to assail the ex parte judgment and decree by filing an appeal
Defendant filed appeal in Appellate Court afterwards but the same was dismissed being time barred
Plea raised by the defendant was that it was the wrong advice of the-counsel whereby the defendant prosecuted the case in wrong forum-- Validity
Delay could not be condoned on the basis of wrong advice tendered by advocate as it was essential for the defendant to show that he followed the remedy before wrong forum acting with due care and caution on the basis whereof delay could be condoned but the defendant had failed to establish such fact
Conduct of the defendant depicted a careless and callous approach on the basis whereof condonation of delay had rightly been refused by the Appellate Court
Conclusion drawn by the Appellate Court and High Court being well based did not call for any interference
Leave to appeal was refused. Syed Haji Abdul Wahid and another v. Syed Sirajuddin 1998 SCMR 2296 ref.
Judgment & Decree
JAVED IQBAL, J.
This petition for leave to appeal is directed against order, dated 20-3-2000 passed by learned Lahore High Court, Lahore, whereby civil revision preferred on behalf of petitioner has been dismissed and order passed by learned District Judge, Ferozewala, dated 3-9-1999 rejecting the petitioner's application under sections 5 and 14 of Limitation Act for condonation of delay in filing appeal has been kept intact.
2. Briefly stated the facts of the case as enumerated, in the impugned order are to the effect "that respondent No. 1 filed a suit for declaration against the petitioner, challenging the gift allegedly affected in her favour through a civil suit. This suit was decreed in his favour on 19-10-1992, as the evidence of the petitioner, as defendant, was closed by the trial Court on 10-10-1992. Against the above, petitioner first filed an application under Order IX, Rule 13, C,P.C., which was dismissed for non-prosecution on 2-11-1993, thereafter, application under section 12(2), C.P.C., was filed on 19-6-1994, which was disallowed by the trial Court but in revision, was allowed by the leaned ADJ, whereupon a writ was filed before this Court, which was allowed by this Court, on 9-10-1997. Petitioner approached the Honourable Supreme Court, for leave to appeal, but was dismissed, as not pressed vide order, dated 9.-8-1999, The High Court, in writ mentioned above, came to the conclusion that his application under section 12(2), C.P.C. was incompetent,, rather an appeal, should have been filed against the judgment and decree. Thereafter, the petitioner filed the instant appeal, on 1-9-1999, alongwith which, an application for condonation of delay was moved. Learned District Judge, has dismissed this, as the petitioner has not been able to make out a sufficient cause for the condonation of delay". Being aggrieved a revision petition was preferred assailing the order, dated 3-9-1999 of learned District Judge which has been rejected vide order impugned, hence this petition.
3. Heard Mr. Muhammad Akram Khokhar, learned Advocate Supreme Court on behalf of petitioner who mainly argued that the judgment/decree, dated 19-10-1992 passed by learned Civil Judge, Ferozewala, was ab initio void hence the question of limitation does not arise which aspect of the matter escaped notice of learned High court resulting in serious miscarriage of justice. It is urged with vehemence that the learned Appellate Court has not appreciated the legal aspects of the controversy with diligent application of mind and the delay has not been condoned in filing the appeal on flimsy grounds without considering the fact that the judgment/decree, dated 19-10-1992 passed by learned Civil Judge was ab initio void and more so, that the petitioner remained involved continuously in the other Courts and the time consumed in that process should have been taken into consideration while deciding the question of limitation. It is contended that the learned High Court has also failed to appreciate the legal and factual aspects of the controversy in its true perspective and upheld the order of learned Appellate Court without dilating upon the points addressed while arguing the revision petition.
4. We have carefully examined the contentions as agitated on behalf of petitioner in the light of relevant provisions of law and record of the case. We have minutely perused the judgment and decree, dated 19-10-1992 passed by learned Civil Judge, order, dated 3-9-1999 passed by learned District Judge and order impugned. We have not been persuaded to agree with learned Advocate Supreme Court on behalf of petitioner that the judgment and decree, dated 19-10-1992 passed by learned Civil Judge was ab initio void for the reason that it could not be declared as ab initio void because it was passed by a Court of competent jurisdiction. It is an admitted feature of the case that appeal preferred in the Court of learned District Judge was time-barred and the application submitted under sections 5 and 14 of the Limitation Act has rightly been I rejected as no plausible justification could be furnished on the basis whereof delay could have been condoned. It is also an admitted feature of the case that the provisions as contained in Order IX, Rule, 13, C,P,C, were invoked after a long period and that too could not be pursued vigilantly and vigorously which was ultimately dismissed for non-prosecution on 2-11-1993. No doubt that an application under section 12(2), C.P.C. has been moved on 13-6-1994 after lapse of about seven months whereas the application under Order IX, Rule 13, C.P.C. was dismissed on 2-11-1993. It may not be out of place to mention here that provisions under section 12(2), C,P.C. were never intended to be a duplication of proceedings provided for in Order IX, Rule 13, C.P.C. C and there was no lawful justification for filing the same. In this regard we are fortified by the dictum as laid down in case titled Ghulam Sarwar v. Muhammad Sarwar (1987 SCMR 1440). This Court was also approached but petition was withdrawn at later stage. The contention of learned Advocate Supreme Court that delay should have been condoned on the basis of wrong advice tendered by Advocate of the petitioner seems fallacious as it is well settled by now that delay could not be condoned on the, basis of wrong advice tendered by Advocate of petitioner before it was essential for the petitioner to show that he followed the remedy before a wrong forum acting with due care and caution on the basis whereof delay could be condoned but the petitioner has failed to establish the said fact. If any authority is needed reference can be made to case titled Syed Haji Abdul Wahid and another v. Syed Sirajuddin (1998 SCMR 2296). On the contrary the conduct of petitioner depicts a careless and callous approach on the basis whereof condonation of delay has rightly been refused by the learned Appellate Court by means of order, dated 3-9-1999 duly concurred by learned High Court by making the following observations:-- "I am not convinced, if the petitioner has been diligently and with bona fide pursuing her remedy before the wrong forum particularly, in the situation, when she earlier moved an application under Order IX, Rule 13, C.P.C, before the Court after lapse of considerable period of time, which was dismissed for non-prosecution on 2-11-1993 and thereafter, the petitioner moved an application under section 12(2), C.P.C. after 7/8 months time, This does not show the petitioners promptness and good faith. Moreover, after judgment of this Court in writ petition mentioned above, the petitioner though approached the Honourable Supreme Court, but did not procure any order on merits, rather withdrew the said petition."
5. The conclusion as drawn by the learned appellate and revisional Courts being well based hardly calls for any interference. The petition being devoid of merit is dismissed. M.H./M-517/S Petition dismissed.