2017 PLP 48 (CLCN)

MAHMOOD AHMAD BHATTI, J.

This appeal has been preferred against the judgments and decree dated 23.04.2009 and 09.07.2009 passed by the learned Senior Civil Judge, Narowal and an Additional District Judge Narowal, respectively, whereby the suit of Abdul Qayyum Khan, respondent No.1 was decreed and an appeal preferred thereagainst by the appellants was dismissed as well.

2. The facts, in brief are that Abdul Qayyum Khan instituted a suit for the recovery of Rs.7,82104/-, contending therein that Muhammad Azam, Muhammad Siddique, Iftikhar Ahmad, the defendants made an agreement with him in respect of a brick kiln. All the partners made a contribution to run this business. However, the parties to the suit suffered loss and it became impossible for them to carry on jointly. Eventually, they had to shut the shop. The accounts were settled and they arrived at a final settlement by means of a writing dated 15.09.1992. The details thereof have been set out in paragraph No.2 of the plaint. Be that as it may, it was maintained by the plaintiff that an amount of Rs.7,82,104/- was due to him from Muhammad Azam, defendant No.1.

3. Defendant No.1 entered appearance and filed written statement, controverting the assertions made by the plaintiff. It was maintained by him that the Iqrar Nama dated 15.09.1992 had become inexecutable owing to the efflux of time.

4. Given the divergent pleadings of the parties, the following issues were framed by the learned trial Court. ISSUES:-

1. Whether the plaintiff has got no cause of action to file this suit? OPD.

2. Whether the plaintiff is misusing the deed dated 15.09.1992? OPD.

3. Whether agreement deed dated 15.09.1992 is time bared as such same is ineffective? OPD.

4. Whether the defendants are entitled to special cost under section 35-A, C.P.C.? OPD.

5. Whether the plaintiff is entitled to a decree as prayed for? OPP.

6. Relief.

5. In order to prove the case, the plaintiff examined Muhammad Sharif, scribe (P.W.1), Sikandar Ahmad (P.W.2), Muhammad Ishaq Khan (P.W.3), Nazir Ahmad (P.W.4) and he himself appeared as P.W.5. In documentary evidence, the plaintiff produced dissolution of partnership deed dated 15.09.1992 as Exh. P.1, deed constituting the arbitration committee dated 19.04.2001 as Exh. P.2, decision/award of arbitration committee dated 25.05.2001 as Exh. P.3 and copy of application filed before Assistant Commissioner for the recovery of Rs.5,60,603/- as Exh. P.4. In rebuttal, Muhammad Azam, defendant No.1/appellant appeared as P.W.1, and produced Manzoor Hussain as D.W.2 and Liaquat Ali as D.W.3.

6. The learned trial Court proceeded to decree the suit of the plaintiff vide judgment and decree dated 23.04.2009 in the following terms:- 'In view of the above said findings recovery suit of the plaintiff is decreed against defendant No.1 to the tune of Rs.1,24,604/- as principal amount and Rs,1500/- per month fine since October 1992 till the satisfaction of said amount, till this month the amount recoverable from the defendant is stipulated as 4,05,104/-. The costs of the suit is independently recoverable from the defendant No.1.'

7. Feeling aggrieved by the aforesaid judgment and decree, Muhammad Azam, the appellant preferred an appeal before the learned District Judge, Narowal which ultimately came on the file of the learned Additional District Judge, Narowal, who by and large upheld the findings recorded by the learned trial Court, but modified the judgment passed by the Court below, holding as under:- 'As a sequel of above the suit of the respondent No.1/plaintiff of the suit Abdul Qayyum Khan is decreed in this tune that he is entitled to recover Rs.1,24,604/- as the principal amount from the appellant and he is also entitled to recover compensation upon the said amount according to highest rate of annual profit of any scheduled bank running in Pakistan for which the respondent will provide proof before the execution Court during execution proceedings and which will be decided finally by the executing Court after necessary verification. Accordingly the judgment of the learned trial Court is modified. Appellant will bear the costs throughout. Decree-sheet be prepared accordingly.'

8. Since the judgment-debtor, Muhammad Azam felt dissatisfied with both the judgments and decrees passed by the learned Courts below, he called into question the validity thereof by means of the instant second appeal. Along with the appeal, the appellant filed an application bearing C.M. No. 2-C/2009 under section 5 of the Limitation Act, 1908, seeking to condone the delay in filing the appeal.

9. Today, when this appeal came up for final arguments, it was insisted by the learned counsel for the decree-holder that the appeal is barred by 28 days, and that there is neither any sufficient nor a good ground to condone the delay, with the result that the appellant be first made to address the arguments on the question of limitation, and if he fails to satisfy the Court, it would be an exercise in futility to touch upon the merits of the case or to disturb the concurrent findings recorded by the learned Courts below.

10. On the other hand, learned counsel for the appellant has conceded that on the face of it, the appeal is barred by time but he has filed an application under section 5 of the Limitation Act, 1908 seeking to condone the delay. In paragraph No.2 of the application, it has been maintained by the applicant/appellant that mother of the appellant was seriously ill just before the filing of the appeal. She died in September, 2009. Thereafter, "he was crippled financially", due to which he could not file the appeal within time.

11. In support of the application for condonation of delay, learned counsel for the appellant submits that cases are to be decided on merits. According to him in quite a recent judgment of the Hon'ble Supreme Court of Pakistan reported as 'Government of the Punjab through Secretary, Excise and Taxation Department, Lahore and others v. Metropole Cinema and others' (2014 SCMR 649), it was observed by the apex Court that lenient view ought to be taken by this Court regarding the question of limitation. He further argues that since the impugned judgments and decrees were void, the question of limitation would not stand in the way of the appellant in that void orders/decrees are to be disregarded altogether. In this respect, he has placed reliance upon the cases reported as 'Sherin and 4 others v. Fazal Muhammad and 4 others' (1995 SCMR 584) 'Atlantic Carpets through Partner v. Messers Emirates Bank International and another' (2000 MLD 2015), 'Abdul Ghafoor v. Kala' (2001 MLD 1489) and 'Central Bank of India Limited, Lahore through Assistant Custodian of Enemy Property (Banks) State Bank of Pakistan, Lahore v. Messrs Haji Sheikh Faiz Muhammad Din Muhammad, Importers and Exporters through Managing Partner and 4 others' (2005 CLD 1723). He has emphasized that the suit instituted by the respondent/decree-holder was barred by time and section 19 of the Limitation Act, 1908 was misconstrued to the detriment of the rights and interests of the appellant. When the foundation is void, the edifice built upon it is to come down crashing with it. He concludes by making the submissions that the delay in filing the appeal was not deliberate, rather the appellant was a victim of the circumstances and it was beyond his powers to file the appeal within time.

12. Learned counsel for the respondent has controverted the arguments advanced by the learned counsel for the appellant, submitting that the respondent had filed a reply to the application moved by the appellant under section 5 of the Limitation Act, 1908 and annexed certain documents to it to show that the plea taken by the applicant/appellant is not well-founded. It has been urged by him that the respondent/decree-holder had filed an execution petition, which was pending before the Senior Civil Judge, Narowal in which the appellant's presence was marked on 05.10.2009, 15.10.2009 and 28.10.2009. In other words, the passing of the decree was very much in his knowledge and if he so intended, he could have filed the appeal within time. He further points out that during the execution proceedings, the appellant was arrested on 05.09.2009 but was released on the very same day in the wake of an offer made by him that he would satisfy the decree passed against him by entering into a suitable arrangement/compromise with the decree-holder. This is not all. He continued to appear in the trial of case FIR No.24/2009 dated 24.01.2009 registered against him under section 489-F, P.P.C. at Police Station City Narowal. According to him, the authentic judicial record gives the lie to the stance adopted by the applicant/appellant. Refuting the argument of the learned counsel for the applicant that the appellant was financially crippled, copies of the plaints in the three suits for specific performance instituted by him have been shown. He stresses that had the appellant been a pauper, he would not have spent an amount of Rs.45,000/- as Court Fees in filing three civil suits for specific performance. He has also refuted the argument that the judgment and decrees were void by placing reliance upon the judgment of the Hon'ble Supreme Court of Pakistan in the case of 'Monazah Parveen v. Bashir Ahmad and 6 others' (2003 SCMR 1300) and urging that the judgments and orders passed by a competent Court of law cannot be termed as void ab initio. He concludes that the applicant/appellant has not explained the delay of each and every day and when a lis brought before the Court is barred by time, the same is not to be decided on merits. To fortify his submissions, he has also placed reliance on the judgments reported as 'Muhammad Ilyas Sheikh v. Secretary Chairman, Ministry of Railways and others' (2011 SCMR 1429) and 'Raja Khan v. Manager (Operation) Faisalabad Electric Supply Company (WAPDA) and others' (2011 SCMR 676).

13. Ishtiaq Ahmad Advocate, another learned counsel for the respondent has pointed out that no certificate of illness of the mother of the appellant was attached with the application for the condonation of delay. The applicant also did not bother to annex an extract from the Register of Deaths. As regards the alleged void orders/decrees he takes serious exception to the nomenclature. He elaborates that since the judgments and decrees were passed by the competent Courts of law, they cannot by any stretch of imagination be regarded as void. Even otherwise, void orders must be challenged within time. In this behalf reliance has been placed upon the judgments reported as 'Ghulam Hussain v. Member, Board of Revenue and 2 others' (2005 YLR 1931), 'Abdul Qayyum v. Muhammad Sadiq' (2007 SCMR 914), 'Messers Blue Star Spinning Mills Ltd v. Collector of Sales Tax and others' (2013 SCMR 587) and 'Mian Muhammad Sabir v. Malik Muhammad Sadiq through Legal Heirs and others' (PLD 2008 SC 577).

14. Exercising his right of rebuttal, learned counsel for the appellant submits that in the second appeal, he has raised the question of law and a question of law may be raised at any stage without being circumscribed by the law of limitation.

15. I have heard the learned counsel for the petitioners at considerable length and gone through the documents appended to the appeal with their assistance.

16. It is an irrefutable fact that this appeal is barred by 28 days. In point of fact, the learned counsel for the appellant did not join issue with the learned counsel for respondents No.1. His only plea is that the appellant is a victim of circumstances, who remained preoccupied with looking after his ailing mother, who ultimately passed away. Having performed her burial rites, he immediately filed the instant appeal. There is another facet to his argument which runs as under:- 'The impugned judgments and decrees being void ab-initio, the question of limitation in filing the appeal to challenge the validity thereof would pale into insignificance.'

17. I am afraid the arguments made by the learned counsel for the appellant are not sound. If his arguments are taken to their logical end, there would be no need to file an application under section 5, of the Limitation Act in the first place. On the one hand, judgments and decrees passed by the Courts cannot be dubbed as void ab initio inasmuch as they were passed by Courts of competent jurisdiction, as held in the case of "Manazah Parveen v. Bashir Ahmad and others" (2003 SCMR 1300), and on the other, even void orders are to be challenged within limitation. There is another aspect of the matter. So long as the void judgments and decrees continue to hold the field and are not set aside in appropriate proceedings, they produce the same results as do the valid judgments and decrees.

18. In the case of 'Begum Syeda Azhra Masood v. Begum Noshaba Moeen and others' (2007 SCMR 914), repelling the contention that limitation does not run against the void order, it was held by the apex Court:- 'As far as the submission of the learned counsel that limitation does not run against a void order is concerned, it has not impressed us. As held above, the judgment and decree of the trial Court could not be said to be void. We may add that a void order is only a type of an illegal order and if it has created certain consequences, an aggrieved person must get rid of it. If the argument of learned counsel for the petitioner is accepted, then there may not be any limitation at all to challenge an illegal order by describing it as a void order after any period say 5 years, 10 years, 20 years and so on. One of the objects of the legal system, particularly to prescribe limitation, is to settle the rights of the parties and provide certainty in human affairs and if the argument which is being put forth is accepted, it will have the effect of unsettling rights and may affect the transactions which may have taken place meanwhile and, thus, prejudice a third party. Reference may be made to Messers Conforce Ltd. v. Syed Ali Shah and others PLD 1977 SC 599 in which the following observations were made. "However, in view of the frequency with which gross negligence is sought to be condoned on the plea that the impugned order was void or without jurisdiction, we have observed that a void order or an order without jurisdiction is only a type of an illegal order passed by a Court and the fact that it has been passed and that it may, therefore, create rights cannot be altered by describing it as void or without jurisdiction. And, further, the expressions void orders and orders without jurisdiction are overworked expressions. No doubt they are relevant in some contexts but as suggested by Lord Reid in Anisminic Ltd. v. Foreign Compensation Commission and others (1) it would be better to use these expressions in the narrow and original sense of the lack of competence of the Court or the Tribunal to enter on the enquiry in question." Reference may also be made to Sarfraz v. Muhammad Aslam Khan and another 2001 SCMR 1062 in which it was reiterated that:- "It may also be noted that even against a void order an aggrieved person is required to initiate proceedings within reasonable time, instead of invoking the jurisdiction of the Courts after lapse of considerable time when the order/decree under attack in fact had achieved finality as in the instant case the respondent had not only conceded to the decree of the trial Court but had also withdrawn the sale consideration during pendency of the appeal which was filed by the appellant and thereafter he felt satisfied and all of a sudden filed application in the year 1992 after lapse of period of more than 5 years with the prayer that decree passed on 15th April, 1987 be set aside as it has been passed without jurisdiction."

19. In the case of 'Messers Blue Star Spinning Mills Ltd. v. Collector of Sales Tax and others' (2013 SCMR 587), the law on the subject was reiterated by holding as under:- 'This Court in exercise of its review jurisdiction cannot sit as a court of appeal against its own order. The appeal filed before the Customs, Excise and Sales Tax Appellate Tribunal (Lahore Benech-II) was admittedly time-barred and the learned Tribunal had rightly dismissed the appeal as being hit by limitation and found no sufficient cause for condonation. In affirming the said order, the learned Division Bench of the Lahore High Court adverted to the question of limitation and did not find any ground tenable in law to take a divergent view. The concurrent orders were affirmed by this Court vide the judgment under review. The Court specifically adverted to the argument raised by petitioner's learned counsel that no limitation runs against a void order and held that this is not an inflexible rule; that a party cannot sleep over to challenge such an order and that it is bound to do so within the stipulated/prescribed period of limitation from the date of knowledge before the proper forum in appropriate proceedings. This is in line with the law laid down by this Court in Chief Settlement Commissioner v. Muhammad Fazil (PLD 1975 SC 331) wherein it is observed that 'direct proceedings for having a decision invalidated or set aside may be either by way of appeal, revision or review, initiated by the affected party, in accordance with the relevant law; or they may take the form of suo motu recall of the order by the court or authority which made it; or, lastly, action to be taken by way of a regular suit before a Court of general jurisdiction for a declaration as to the invalidity of the order, Similarly in Muhammad Raz Khan v. Government of N. W.F. P. (PLD 1997 SC 397) at page 400 this view was reiterated in terms as follows:- "We earnestly feel that unless certain constrains apply against right of challenging void order specially relatable period of knowledge, the same may create complication leading to dangerous results. Principle of justice and fair play does not help those who were extraordinary negligent in asserting their right and despite becoming aware about alleged void order adverse to their interest remain in deep slumber. Therefore, according to our considered opinion, facility regarding extension of time for challenging orders cannot be legitimately stretched to any length of unreason period at the whims, choices or sweetwill of affected party. Thus, order termed as nullity or void could at best be assailed by computing period of limitation when he factually came to know about the same. When a person presumes that adverse order is anullity or totally devoid of lawful authorities and ignores it beyond the period specified by law of limitation, then he does so at his own riske. Therefore, in all fairness terminus a quo will have to be fixed, the date of knowledge of alleged void order; which too must be independently established on sound basis. In this behalf we derive strength from the observations contained in PLD 1975 Banghad-ul-jadid 29 (Syed Sajid Ali v. Sayed Wajid Ali) and 1978 SCMR 367 (S. Sharif Ahmad Hashmi v. Chairman Screening Committee).

20. In the case of 'Ghulam Hussain Ramzan Ali v. Collector of Customs (Preventive), Karachi' (2014 SCMR 1594), it was expressed by the Hon'ble Supreme Court that:- "It is now a well settled law that there is distinction between a void order and a voidable order and it has been held by this Court that party could not sleep over to challenge a void order and it was bound to challenge the same within the stipulated/prescribed time period of limitation from the date of knowledge before the proper forum in appropriate proceedings. In this connection reference may be made from the judgment of this Court reported as 'Messers Blue Star Spinning Mills Limited v. Collector of Sales Tax and others (2013 SCMR 587)' wherein this Court held as under:- 'This Court specifically adverted to the arguments raised by the petitioner's learned counsel that no limitation runs against a void order and held that this is not an inflexible rule; that a party cannot sleep over to challenge such an order and that it is bound to do so within the stipulated/prescribed period of limitation from the date of knowledge before the proper forum in appropriate proceedings. This is in line with the law laid down by this Court in Chief Settlement Commissioner v. Muhammad Fazil (PLD 1975 SC 331) wherein it is observed that direct proceedings for having a decision invalidated or set aside may be either by way of appeal, revision or review initiated by the affected party, in accordance with the relevant law; or they may take the form of suo motu recall of the order by the Court or authority which made it or, lastly action to be taken by way of a regular suit before a Court of general jurisdiction for a declaration as to the invialidity of the order." Similarly in Muhammad Raz Khan v. Government of N. W.F.P. (PLD 1997 SC 397) at page 400 this view was reiterated in terms as follows:- "We earnestly feel that unless certain constraints apply against right of challenging void order specifically relatable period of knowledge, the same may create complication leading to dangerious results. Principle of justice and fair play does not help those who were extraordinary negligent in asserting their right and despite becoming aware about alleged void order adverse to their interest remain in deep slumber. Therefore, according to our considered opinion, facility regarding extension of time for challenging order cannot be legitimately stretched to any length of unreason period at the whims, choices or sweet will of affected party. Thus, order termed as nullity or void could at best be assailed by computing period of limitation when he factuallay came to know about the same. When a person presumes that adverse order is a nullity or totally devoid of lawful authority and ignores it beyond the period specified by law of limitation, then he does so at his own risk. Therefore, in all fairness terminus a quo will have to be fixed, the date of knowledge alleged void order; which too must be independently established on sound basis in this behalf we derive strength from the observations contained in PLD 1975 Baghad-ul-jadid 29 (Syed Sajid Ali v. Sayed Wajid Ali) and 1978 SCMR 367 (S. Sharif Ahmad Hashmi v. Chairman Screening Committee)".

21. As for the cause for delay explained in the application moved by the appellant under section 5 of the Limitation Act, 1908, I am least impressed by the same. No document is annexed to the application to show that the mother of the appellant was seriously ill at the relevant time and/or admitted to some hospital. Moreover, there is nothing on the record to suggest that there was not any other family member of the appellant to look after the deceased. This is not all. As pointed out by the learned counsel for respondent No.1, if the appellant could remain in attendance before the Executing Court and he sought time from there to enter into a sort of an arrangement with the decree-holder to satisfy the decree passed against him, it would not have been difficult for him to engage a counsel and file an appeal. To attend to the other reason assigned in the application that the appellant was "financially crippled", it is also belied by the record. If the appellant could file three suits for specific performance incurring a Court Fee in the sum of Rs.45,000/- he could have spent another amount of Rs.7,000/-towards the payment of Court Fee required of him to file the instant appeal. To my mind, the grounds urged in the application for condonation of delay are just ruses and untenable excuses that did not bear judicial scrutiny. I find no cogent reason to condone the delay. Under section 3 of the Limitation Act, 1908, it is the duty of every Court to first advert to the question of limitation, irrespective of the fact whether the same has been set up as a defence or not. The language used by the legislature therein is pre-emptory and mandatory as highlighted by the Hon'ble Supreme Court of Pakistan in the case of 'Hakim Muhammad Buta and another v. Habib Ahmad and others' (PLD 1985 SC 153).

22. Furthermore, it is well-established law that the delay of each and every day in filing a suit or appeal or revision for that matter is to be explained. Suffice it to make reference to the authoritative pronouncement of the Hon'ble Supreme Court of Pakistan made in the case of 'Sheikh Muhammad Saleem v. Faiz Ahmad' (PLD 2003 SC 628) in which it was held as under:- 'The argument of the learned counsel for the appellant that since valuable property is involved, therefore, delay be condoned, is least convincing as such a ground hardly constitutes a sufficient cause for condonation of delay. In Mst. Hajran v. Sardar Muhammad (PLD 1970 SC 287), it has been held that involvement of valuable rights does not furnish a proper ground for condonation of delay in a civil matter. In yet another case titled WAPDA v. Auirangzaib (1988 SCMR 1354), it has been laid down by this Court that after the prescribed period of limitation has elapsed, the door of justice is closed and no plea of injustice, hardship or ignorance can be of any avail unless the delay of each day is properly explained and accounted for.'(Emphasis added).

23. In the case of 'Muhammad Islam v. Inspector General of Police, Islamabad and others' (2011 SCMR 8) it was held that:- 'The question of limitation cannot be considered a "technicality" simpliciter as it has got its own significance and would have substantial bearing on merits of the case. The law of limitation must be followed strictly. In this regard we are fortified by the dictum laid down in Chairman, District Screening Committee, Lahore and another v. Sharif Ahmad Hashmi (PLD 1976 SC 258), S. Sharif Ahmad Hashmi v. Chairman, Screening Committee Lahore and another (1978 SCMR 367), Yousaf Ali v. Muhammad Aslam Zia and 2 others (PLD 1958 SC (Pak) 104), Punjab Province v. The Federation of Pakistan (PLD 1956 FC 72), Muhammad Swaleh and another v. Messers United Grain and Fodder Agencies (PLD 1949 PC 45), Hussain Bakhsh and others v. Settlement Commissioner and another (PLD 1969 Lah. 1039), Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others (PLD 1973 SC 236), Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331), WAPDA v. Abdul Rashid Bhatti, (1949 SCMR 1271), Inspector General of Police, Balochistan v. Jawad Haider and another (1987 SCMR 1606), WAPDA v. Aurganzeb (1988 SCMR 1354), Muhammad Naseem Sipra v. Secretary, Government of Punjab (1989 SCMR 1149), Muhammad Ismail Memon v. Government of Sindh and another (1981 SCMR 244), Qazi Sardar Bahadar v. Secretary, Ministry of Health, Islamabad and others (1984 SCMR 177), Smith v. East Elloe Rural District Council and others (1956 AC 736), Province of East Pakistan and others v. Muhammad Abdu Miah (PLD 1959 SC (Pak), 276 and Mehr Muhammad Nawaz and others v. Government of Punjab and others (1977 PLC (C.S.) 165) and Fazal Elahi Siddiqi v. Pakistan (PLD 1990 SC 692).

24. When an appeal is barred by time and liable to be dismissed, the Court need not discuss the merits of the case/appeal. In this respect, reference may well be made to the case of 'Raja Khan v. Manager (Operation) Faisalabad Electric Supply Company (WAPDA) and others' (2011 SCMR 676).

25. For what has been stated above, C.M. No.2-C/2009 is liable to be dismissed, with the result that this appeal being barred by time is dismissed as well, without any order as to costs. MH/M-99/L Appeal dismissed.