P L D 1964 (W (PLP)

(1) Whether the suit is within time? (2) Whether the suit is not maintainable in the present form? (3) Whether the plaintiff has become the owner of the suit property by valid purchase?

4. S. Shaukat Ali Shah, Civil Judge, by his order 5th November 1958 found all the three issues in favour of the plaintiff and granted the plaintiff' a decree as prayed for against the defendants with costs.

5. On 17th November 1959, i.e. about one year and twelve days after the decree, an appeal was preferred on behalf of Nawab Ali, Dilawar Khan and Mst. Bibi Dora the minors, through their paternal aunt Mst. Rahim Jana. With the appeal an application under section 5 of the Limitation Act was filed, praying for the condonation of delay. The main ground for condonation of delay was that the appellants were minors and their interest had not been properly looked after. It is important to state that an application for obtaining the copies of the judgment and decree of the trial Court was filed on 29th August 1959. The copies were delivered to the applicant on 4th September 1959, but the appeal, as already indicated, was filed on 17th November 1959, about two months and thirteen days after the copies were obtained. Mr. Abdul Hakim Khan, District Judge, Derajat, by his order dated the 11th of July 1960, in para 3 of the judgment condoned the delay holding, it seems that the law is very kind and indulgent towards the minors and the Privy Council has granted the benefits of section 5 of the Limitation Act to certain infants in Ranee Brigo Butte v. Partab Singh (A I R 1918 Oudh 163). The learned District Judge by over sight in the bracket referred to the authority as A I R 1918 Oudh

163. The learned Judge proceeded to observe, I thus feel that in the present case the precedent of the privy Council can be safely followed particularly when the minors were represented by the Reader of the Court and he had his obvious limitations in the matter of filing an appeal. I, therefore, extend the period of limitation in this case under section 5 of the Limitation Act and treat the appeal as within time". The learned District Judge then proceeded to discuss the merits of the case, and summed up thus:- "In the circumstances, therefore, the plaintiff's claim to be substituted for Khwaja Mir and Khan Sardar in the revenue papers as regards the suit khasra number was clearly indefensivable but as regards the remaining share in the suit khasra number he had not brought the slightest proof. In fact it does not appear from the record that he or his predecessors‑in‑interest ever got the shares of the other shareholders, namely, Muhammad Ghulam, Mst. Gul Rehana, Amir Khan, Abu Khan, Sarwar Khan and Miraband whose names do appear in Exh. A. P. 1." The learned appellate Court in para. 6 of the judgment stated that "this Court has clearly got powers under Order XLl, rule 33 of the C. P. C. to set aside an unjust order notwithstanding that the appeal is as to part only of the decree. Such powers can also be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection. The learned appellate Court purporting to act under Order XLI, rule 33, without indicating as to how he calculated the interest of Khwaja Mir and Khan Sardar held their shares to be 83J/161 share and the remaining share being the interest of Mir Khan predecessor‑in‑interest of the defendant-respondents in favour of whom he exercised the very extra ordinary powers given to the appellate Court under Order XLI, rule 33.

6. The plaintiff feeling aggrieved has come up on revision Mr. Mohammad Afzal Khan Bangash Advocate on behalf of the petitioner made three fold submission:- (1) That the appeal instituted by the minor defendants 3 to 5 was hopelessly beyond time, and that no case whatsoever had been made out for condonation of the delay in filing the appeal. It was argued that it was incumbent on the person claiming the benefit of section 5 to account for each and every single day of delay. He reinforced his argument on the basis of the decision in Kanhaya Lai Sardha Ram v. Baldeo Das and others (A I R 1911 Lah. 681). (2) The second objection was that the provisions of Order XLI, rule 33 could be pressed into service only in very special circumstances, and that too only with a view to avoiding contradictory and inconsistent decisions on the same question in the same suit, and finally. (3) That the provisions of Order XLI, rule 33 could not be made a pretext for setting aside a decree which has become final against the persons who had never cared to contest the suit at any stage of the proceedings, and that when the appeal of the minors was dismissed as unmeritorious, there was no justification whatsoever for invoking the provisions of Order XLI, rule 33 for the benefit of the respondents.

7. Mr. Mir Rehman Advocate representing Muhammad Ayaz respondent No. 17, on the other band, in defence of the order of the learned District Judge argued that the appellate Courts bad wide powers to pass orders "in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection." With regard to the argument of the learned counsel for the petitioner against the candonation of delay under section 5, he argued that since Nawab Ali, Dilawar Khan and their sister Mst. Bibi Dora, respectively, respondents 1 to 3 were minors and their interest had not been fall guarded by the guardian, the learned appellate Court was right in exercising his powers in condoning the delay.

8. After giving the arguments addressed at the Bar my anxious thoughts and on a careful reading of Order XLI, rule 33, I apt clearly of the view that no case had been made out for giving the benefit of section 5 to respondents 1 to 3, in that they had miserably failed to make out any case, much less "sufficient cause", within the meaning of section 5 for filing the appeal out of time. I sin further of the view that the learned appellate Court has wholly Misconceived the provisions of Order XLI, rule 33 in passing decree in favour of the respondents who had neither cared to contest the suit in the trial Court nor had they entered appearance in the appellate Court nor have they cared to appear in this Court, and that the benefit of rule 33 could be given only in cases to avoid contradictory and inconsistent decisions on the same questions in the same suit.

9. As already stated, the appeal instituted by respondents 1 to 3 had been filed about one year and twelve days after the decision of the trial Court, and two months and thirteen days after obtaining the copies of the judgment of the trial Court, and in the application under section 5, no explanation has been given whatsoever, barring the fact that the appellants were minors to make out a "sufficient cause" for the delay in filing the appeal.

10. As regards the scope of rule 33 I may quote the following passage from the commentary by V. V. Chitaley' 4th D Edition' wherein the learned Commentator observed:‑ This rule is new and is based on Order LVIII, rule 4 of the Rules of the Supreme Court in England. It is wider than Order XLI, rule

4. Its object is to enable the appellate Court to do complete justice between the parties and to avoid con tradictory and inconsistent decisions on the same questions in the same suit." I may also profitably borrow the observation of Almond, A. J. C., reported in Sher Muhammad etc. v. Mst. Aimna Bibi (A I R 1937 Pesh. 69), wherein his Lordship remarked:‑ "The exercise of the powers under Order XLI, rule 33, Civil P. C., is discretionary and is normally exercised only in ease in which the failure to exercise them would lead to impossible contradictory and unworkable orders." Judged in the light of the above discussion the impugned order is indefensible for the short and good reason that there was no previous decree and as such the question of avoiding contradictory, and inconsistent decree would simply not arise for which purpose alone Order XLI, rule 33 was intended to achieve.

11. For all the foregoing reasons, I accept the revision petition, set aside the judgment and decree of the District Judge, and restore that of the trial Court with costs. K. B. A. Petition accepted.