First appeal

2017 CLCN 183 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 96First appealScope

First appeal was continuity of suit in which whole case would become reopen.

2014 CLC 1392 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 12(2) & 96Limitation Act (IX of 1908), Ss. 3, 5 & Art.154Constitution of Pakistan, Art.199Constitutional petitionFirst appealLimitationApplication for condonation of delay of six (6) months and ten (10) days

Appellate Court without deciding such application, which remained pending about three (3) years, remanded case to Trial Court for its decision afresh after accepting appeal on basis of compromise filed by parties

Preliminary decree passed in post-remand proceedings by Trial Court on basis of another compromise signed by plaintiff's attorney

Plaintiff's application under S.12(2), C.P.C. for setting aside preliminary decree on ground that his attorney was authorised to represent him in appeal, but not in suit

Order of Trial Court dismissing application under S.12(2), C.P.C. upheld by Revisional Court

Validity

Court could not assume jurisdiction in a time-barred matter without condoning delay first, otherwise not only its entire proceedings, but all subsequent proceedings arising therefrom would also become void and without jurisdiction

Appellate Court without deciding question of limitation first had accepted compromise in time-barred appeal and set aside impugned judgment/decree and remanded case to Trial Court

Judgment of Appellate Court without fulfilling mandatory condition of deciding question of limitation first was illegal and coram non judice, thus, its order accepting compromise in appeal, preliminary decree and order of Revisional Court were also illegal and coram non judice

When very foundation was held to be illegal or void, then entire superstructure built thereon would fall to ground automatically

Such illegality committed by Appellate Court resulted not only into multiplicity of proceedings, but also grave miscarriage of justice

High Court accepted constitutional petition and set aside judgment of Appellate Court, preliminary decree passed by Trial Court, order of Revisional Court and remanded case to Appellate Court for deciding first application under S.5 of Limitation Act, 1908.

2013 PLD 320 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 96 & O.XLI, R.33First appeal

Observation of Appellate Court while deciding appeal that evidence of defendant for being confusing in nature could not be considered in judgment

Validity

Such observation would amount to refusal to exercise jurisdiction vested under law in the Appellate Court.

2013 MLD 655 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 21Constitution of Pakistan, Art. 199Constitutional petitionFirst appealAdmission of appeal by Appellate Court for regular hearingNon-affixation of requisite court fee stamps on memo. of appealAppellant's readiness to pay such court fee while arguing appealDismissal of appeal by Appellate Court after refusing to allow appellant to pay court feeValidity

Sindh Rented Premises Ordinance, 1979 did not provide that in case of non-affixation of court fee stamps, appellant would lose right to file appeal

Appellant must have been given an opportunity to pay up court fee before taking away his substantive right to file appeal

Technical dismissal of appeal would deprive appellant of his right to re-file appeal due to bar of limitation

Appellate Court had not asked appellant to affix court fee stamps while presenting appeal within time, rather had admitted appeal without such objection

High Court set aside impugned order and directed appellant to pay court fee stamps within specified time before Appellate Court.