C.R.No.17 of 2008.
Muhammad Iqbal v/s
The State
1.For orders on statement dt 3.2.2009.
2.For orders on CMA 71/09.
3.For Katcha Peshi.
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27.03.2009. Mr.Abdul Haleem Qureshi, advocate for the
applicant.
Nemo for the respondent.
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JUDGMENT.
ARSHAD NOOR KHAN, J.- This
Civil Revision under Section 115, CPC has been directed against the order dated
25.3.2008 passed by the learned District Judge, Ghotki whereby the Application
under Section 5 of the Limitation Act, has been dismissed consequent upon
which the appeal filed by the applicant
against the judgement and decree passed by learned Senior Civil Judge, Ubauro
dated 16.6.2007 and 20.6.2007 has been upheld.
The facts leading to the present revision
application in brief are that the respondent filed suit for damages against
applicant for malicious prosecution and his false involvement in false FIR
under Section 435, PPC wherein he was challaned, was finally acquitted by the
criminal Court in Cr.Case No.60/2004 vide Judgment dated 13.2.2004. After
acquittal from the charge, the respondent filed the aforesaid suit for damages
to the tune of Rs.100,000/-, which was contested by the applicant and was
finally decreed vide Judgement and Decree as stated above by trial Court,
against which, the applicant preferred appeal before the District Judge Ghotki,
which was barred by seven days, As such application for condonation of delay in
filing of the appeal was also filed alongwith the appeal, which was heard by
the learned District judge Ghotki who after hearing of the counsel for the
parties, dismissed the application; hence the present revision application.
I have heard Mr.Abdul Haleem Qureshi,
learned counsel for the applicant. He vehemently contended that the applicant
had assigned good and sufficient reasons
in support of the condonation of delay in filing of the appeal because of
paucity of funds, he could not arrange the court fee, therefore, the delay
occurred in filing of the appeal and has also agitated an additional ground
before this Court in support of the condonation of delay, which is that the
order passed by learned trial Court is void order and against the void order no
limitation is required to run. In
support of his contention regarding limitation against the void order, he has
placed reliance on the case of Sarfraz v Muhammad Aslam Khan and another
reported in 2001 SCMR 1062, the case of Abdul Ghani v Mst.Shaheen and others
reported in 2007 SCMR 834 and the case of Mst.Afroz Qureshi v Muhammad Ikram
Siddiqui reported in NLR 1995 CLJ 549.
I have considered the arguments advanced
by learned counsel for the applicant and have gone through the material
available on record as well as case law cited above.
Admittedly the appeal filed by the
applicant before the learned District Judge, Ghotki against the Judgment and
Decree passed by learned lower Court was barred by seven days for which
application for condonation of the delay was filed. In the said application,
the reason assigned by the applicant, was that because of his paucity he could
not arrange the Court fee, therefore the appeal could not be filed in time. The
learned District Judge while considering the plea urged by the applicant, did
not satisfy with the same and dismissed the application. The plea, which has
been taken in support of condonation of delay, seems not to be reasonable and
plausible for the reasons that, in case, if, the applicant had no funds to pay
Court fee then he had to file appeal without payment of the Court fee and seeking
further time from the Court by filing of application under Section 149, CPC for
submission of the Court fee, but neither the appeal was filed in time nor any
application under Section 149, C.P.C was filed before the learned District
Judge. The plea advanced by the applicant regarding his paucity to arrange
Court fee, seems not to be reasonable and plausible to condone the delay of
seven days in filing of the appeal. There could be no cavil to the proposition
that after expiry of the limitation period a valuable right stands accrued in
favour of the opposite party, which could not be snatched or brushed aside
leniently. The party guilty of the limitation is duty bound and under
obligation to explain each days delay in submission of the appeal when the period
of limitation has expired. In the present case not a delay of single day, has
been explained by the applicant except the general plea regarding his paucity
to arrange the Court fee. The delay in filing of the appeal, has therefore not
been satisfactorily explained and a valuable right accrued in favour of
respondent which could not be denied to him to reap the fruit of the decree.
The learned counsel for the applicant has
vehemently argued that the acquittal of the respondent in the criminal case,
was based on benefit of doubt, which was not honourable acquittal, therefore,
he was not entitled to claim damages on the basis of malicious prosecution, but
in my humble opinion the same ground is not available to non-suit the
respondent for the reasons that there are authorities of the superior Courts to
the effect that every acquittal is honourable acquittal. In the case of
Attaullah Shaikh v/s WAPDA, reported in 2001 SCMR 269, the same observations
have been made by the Hon’ble Supreme Court which is usefully quoted herein
below for the sake of convenience:-
10. It is an admitted fact that
the appellant was acquitted by learned Special Judge (Central), Multan from the
charges which were leveled against him. This Court, in the case of Dr.Muhammad
Islam has laid down a dictum that all acquittals are “honourable” and there
could be no acquittal which could be terms as “dishonourable”.
The case of Mst.Afroz supra, relied upon by
the learned counsel for the applicant, therefore does not apply to the
circumstances of the present case.
The learned counsel for the applicant has
additionally argued before this Court that the Judgment and Decree passed by
learned lower Court was void, abinitio, therefore, no limitation run against a
void order. The contention advanced by learned counsel for the applicant seems
to be devoid of any force for the reasons that no where before the lower Court
the said point has been urged by the applicant, even before the trial Court it
was not urged that the said Court had no jurisdiction to entertain and
adjudicate upon the suit against the applicant on the point of malicious
prosecution. On a query of the Court, the learned Counsel for the applicant
candidly admitted that the Civil Court had jurisdiction to entertain and
adjudicate up on the case of respondent and in such state of affairs, and in
view of the admission of the learned counsel for the applicant, it seems that
the trial Court had all the powers and jurisdiction to entertain and adjudicate
upon the matter. Merely allegations
regarding non-recording of any evidence from the applicant side is not tenable
for the reason that as per record the applicant was afforded sufficient
opportunity to lead his evidence which he did not avail, which was the
negligent fault of the applicant, the judgment and decree passed by the learned
trial Court could not be termed to be a void order on this score. The judgment
and decree passed by learned lower Court was, therefore perfect, having
jurisdiction to entertain and dispose off the matter. The cases of Abdul Ghani,
supra, and Sarfraz, supra, relied upon by learned counsel for the applicant, in
my humble opinion are entirely distinguishable from the circumstances of the
present case and are inapplicable.
For all the aforesaid reasons and circumstances,
I do not find any merit in the present civil revision application and it
appears that the jurisdiction vested with the learned District Judge, was
exercised legally and properly. The revision application is therefore dismissed
summarily alongwith listed applications.
JUDGE
Akber.
Approved for reporting.