1993 PLP 120 (CLC)

(b) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑S. 115‑‑‑Void order‑‑‑Appeal against void order‑‑‑Limitation‑‑‑Void order has to be challenged within limitation‑‑‑Nothing on record was available to prove that judgment and decree rendered by Trial Court was void‑‑‑Where appeal had been dismissed as being barred by time, merits of the case could not be gone into in revision inasmuch as decree passed by Appellate Court had become final unless and, until such appeal was held to be either within time or delay in filing same was condoned. Conforce Limited v. Syed Ali Shah PLD 1977 SC 599 and S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367 rel. Rana Liaqat Ali Khan for Petitioners. Asghar Ahmad Rana for Respondent. Date of hearing: 23th September, 1992. Briefly stated facts of the case, out of which the present Civil Revision, has arisen, are that the respondent filed the suit against the petitioners for the recovery of Rs.20,000 on account of damages on the ground of malicious prosecution. An ex parte decree was passed in the suit by the learned Civil Judge, Toba Tek Singh vide judgment in decree dated 8‑1‑1989. This decree was challenged by the petitioners in the Court of learned District Judge, Toba Tek Singh in a time‑barred appeal filed on 8‑4‑1989 but the same was dismissed vide judgment and decree dated 19‑9‑1991 as being barred by time. In this revision petition, the judgments and decree passed by the Courts below have been challenged by the defendants‑petitioners. The revision petition was admitted to regular hearing to consider the question of limitation.

2. Admitted facts which are relevant for the purpose of disposal of this Civil Revision are that the suit was decreed ex parte on 28‑1‑1989 and the appeal was filed on 8‑4‑1989. According to the petitioners, they came to know of the passing of the ex parte decree against them, on 28‑2‑1989. They applied for grant of certified copies of the judgment and decree on 16‑3‑1989. Both the copies were prepared and were ready for delivery on 20‑3‑1989, however, the delivery of judgment and decree was taken by the petitioners on 26‑3‑1989. Learned counsel for the petitioners has argued that as it was an ex parte decree and as the petitioners acquired the knowledge thereof on 28‑2‑1989, therefore, the period of limitation for filing of an appeal commenced on 28‑2‑1989, therefore, computing the period of limitation with effect from that date by adding the period requisite for obtaining the certified copies of the judgment and decree, appeal filed was well within time and hence judgment and decree passed by the learned District Judge, Toba Tek Singh dated 19‑9‑1991 is illegal, is liable to be set aside and the appeal is liable to be remanded for decision on merits. Learned counsel has further argued that even if the time requisite for supply of certified copies is to be calculated up to the date of preparation of the copy of the judgment and decree, there will be a delay of three days only and the petitioners shall be entitled to the condonation of delay for this short period of time. Learned counsel has further argued that the judgment and decree passed by the learned trial Court is void inasmuch as no decree for payment of damages could have been granted on the ground of malicious prosecution. Reliance has been placed by the learned counsel on a judgment reported as PLD 1970 Karachi 344, Abdul Rashid v. State Bank of Pakistan Limited and another. It is argued that hence the decree could have been challenged by the petitioners at any time without bar of limitation. 2‑A. I have considered the arguments of the learned counsel and have also gone through the judgment cited by the learned counsel. It is a settled law that the period requisite for supply of certified copies is to be calculated up to the time when the judgment and decree is prepared and is ready for delivery unless and until it is proved that the litigant was not informed about the date of preparation of the decree and the same has been prepared after the due date as mentioned in the chit supplied to the litigants. Reliance in this behalf can be placed on judgment reported as PLD 1991 SC 400, Cantonment Board, Kharian Cantt. through Executive Officer v. Muhammad Shafi and PLD 1988 SC 258; Ahmad Nawaz and others v. Muhammad Qayyum. In the case in hand it is not the case of the petitioners that no chit was given or no due date was give to the petitioners or that they had gone to get the delivery of certified copies of the judgment and decree and the copy was not supplied to them. I have asked the learned counsel appearing for the petitioners to produce a chit which was issued by the copying agency so that it may become clear as to whether the petitioners were given due date after the preparation of the decree or not. Learned counsel, however, is unable to produce the chit, consequently, it stands established that the copies were ready for delivery on 20‑3‑1989 and as such, if the petitioners did not collect the same on the said date, and preferred to get the delivery thereof on a later date, no indulgence can be shown to them. Delay of each day is to be positively explained to get the concession of condonation. In the case in hand there is absolutely no explanation as to why the copy was not collected on the date on which the same was prepared. Consequently, it is not a fit case for condonation of delay in filing of the appeal. Discretion has been correctly exercised by the learned District Judge, against the petitioners.

3. Arguments of the learned counsel to the effect that there is no limitation for filing an appeal against a void order is also not tenable inasmuch as it has been authoritatively held by their Lordships of the Supreme Court of Pakistan in judgments reported as PLD 1977 SC 599, Conforce Limited v. Syed Ali Shah and 1978 SCMR 367 S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another, that even a void order has to be challenged within limitation. Even otherwise, there is nothing on record to prove that the judgment and decree rendered by the learned trial Court is void. It was a suit for payment of damages on account of malicious prosecution. Petitioners were served and did not enter appearance, consequently, the suit was decreed ex parte against them. No fault, therefore, can be found with the decree passed by the learned trial Court merely on the ground that the learned Court had dismissed another contested suit. Even otherwise, the appeal filed by the petitioners having been dismissed as being barred by time, merits of the case cannot be gone into in this Civil Revision inasmuch the judgment and decree passed by the petitioners has become final and cannot be set aside on merits unless and until it is held that either the appeal was within time or the delay in filing of the appeal is condoned. In case in hand, it has already been held that the appeal filed by the petitioners before the learned District Judge, Toba Tek Singh was barred by time and there is no ground to allow the condonation of delay, consequently, judgment and decree passed by the learned District Court being unexceptionable, it cannot be said that the judgment and decree passed by the learned trial Court is illegal.

4. In view of the above, I see no force in this Civil Revision, the same is, therefore, dismissed. Parties are, however, left to bear their own costs. AA./R‑57/L Revision dismissed.