1994SCMR2039 (PLP)

‑‑‑‑ Entrusting of case in the forum not having pecuniary jurisdiction would be a technical error. Ataur Rehmaa Sheikh, Advocate Supreme Court and Mehmood A. Qureshi, Advocate‑on‑Record for Petitioners. Nemo for Respondents. Date of hearing: 21st December, 1993. SAJJAD ALI SHAH, J: ‑‑Leave is sought to file appeal against the judgment and order of Lahore High Court, Lahore, whereby Civil Revision No. 824 of 1981 is dismissed in the background of facts stated as under:‑‑

2. Respondents before us as plaintiffs filed suit for possession through pre‑emption on the ground of co‑ownership in the village. Suit land was sold by Mehruddin to defendants (now petitioners before us) for Rs.28,000 by registered sale‑deed on 28‑7‑1976. Plaint was presented on 30‑6‑1977 before learned Senior Civil Judge, who entrusted the same to Civil Court No. 4, Sheikhupura (Civil Judge IInd Class). Plaint was rejected on 10‑11‑1977 against which appeal was allowed by learned A.D.J. holding that instead of rejecting, plaint should have been returned. In the result plaint was returned on 5‑6‑1978 and presented before the Senior Civil Judge, who decreed the suit on 29‑3‑1981. Against that decision appeal and revision filed have been dismissed, hence this petition.

3. It appears from the record that keeping in view the pleadings of the parties, the trial Court framed as many as 10 issues and in the first appellate Court arguments were addressed on Issues Nos. 1, 3, 4 and

5. Issue No. 1 is whether plaintiff No. 3 was minor at the time of institution of suit? Issue No. 3 is with regard to the making up of deficiency of court‑fees. Issue No. 4 is about failure to deposit 1/5th amount in time. Issue No. 5 is whether suit was barred by limitation? On these issues findings of three Courts below are concurrent and against defendants/petitioners.

4. Before us it is contended on behalf of the petitioners that pre‑emptors cannot get benefit of section 14 of the Limitation Act when the suit was deliberately filed before the wrong forum. Secondly; in the absence of return of plaint by the office or the Court m the first instance, respondents/plaintiffs are also liable for their conduct in not pointing out the defect of pendency of toe suit in the wrong forum and for that reason are not entitled for condonation of delay as contemplated under section 14 of the Limitation Act. Perusal of the impugned judgment of the High Court shows that the same contentions were raised in that forum and have been adequately and appropriately dealt with.

5. It appears, from the record that suit was filed on 30‑6‑1977 in the Court of Senior Civil Judge, Sheikhpura and keeping in view valuation of suit as shown in the plaint, it was entrusted to the Civil Judge IInd Class for trial. Subsequently when chart of net profits was obtained to assess the value of the suit for the purposes of court‑fee and jurisdiction, it became clear that suit was not triable by the Civil Judge lInd Class and ultimately plaint was returned on 5‑6‑1978 and on the same day was presented in the Court of competent jurisdiction. Initially when the plaint was presented in the Court of Senior Civil Judge, it was within time and in such circumstances mistake made with regard to the entrustment of the case in the forum not having pecuniary jurisdiction is to be considered as technical error. In such circumstances time consumed in the forum not having ‑pecuniary jurisdiction is rightly condoned under section 14 of the Limitation Act particularly when three Courts below are satisfied that defect of jurisdiction had occurred on account of technical mistake for which plaintiffs are not to be blamed. Likewise there is concurrent finding of three Courts below to the effect that since matter was beyond the pecuniary jurisdiction of Civil Judge IInd Class, orders passed by him for deposit of Zar‑e‑Panjum and making good deficiency of court‑fees could not result in the penal consequence of rejection of plaint.

6. For the facts and reasons aforementioned, we are unable to find any flaw or legal infirmity in the impugned judgment and order of the High Court, with which no interference is warranted. In the result leave is refused and this petition is dismissed. A.A./A‑1105/ Leave refused.