IN THE HIGH COURT OF SINDH

CIRCUIT COURT, LARKANA

 

2ndCivil Appeal                     :           Habib Rehman & others vs.

S- 06 of 2019                                    Abdul Karim & others

 

For the Appellants               :           Mr. Amir Ali Memon, Advocate

 

For the Respondents          :           Mr. Mushtaque Ali M. Chandio, Advocate

No. 1 and 2.

 

For official Respondents    :           Mr. Liaquat Ali Shar

Additional Advocate General                                            

Date of hearing                    :           10.03.2022

 

Date of announcement      :           10.03.2022

 

ORDER

 

Agha Faisal, J.         Briefly stated, the appellants had filed a suit before the Court of Senior Civil Judge K.N. Shah, alongwith an application under Section 5 of the Limitation Act, 1908, for condoning of delay in filing the suit. An application under Order VII Rule 11 CPC was also filed by the respondents.The respective applications were determined vide order dated 02.08.2019, whereby the appellants’s application under Section 5 of the Limitation Act, 1908, was dismissed and consequently respondents’ application under Order VII Rule 11 CPC was allowed, hence, the plaint was rejected on account of the suit being admittedly barred by limitation.  The appellants preferred an appeal before learned District Judge, Dadu, and the same was dismissed on the ground of limitation, inter alia on account of non-deposit of Court fee, per order dated 09.10.2019.

 

2.            Learned counsel for appellants submitted that substantial rights of the appellants were involved and the Courts below had non-suited the appellants in a perfunctory manner. It was supplemented that the Courts below ought to have considered the matter on merit and not dismiss the same on mere technicalities. 

 

3.            Learned counsel for respondents supported the impugned orders and submitted that they are in accordance with law. It was further added that this is third round of litigation and that the previous rounds had concluded in favor of the respondents all the way upto the august Supreme Court. Learned Addl. A.G. also supported the impugned orders and submitted that there is no infirmity therein warranting any interference in appeal.

 

4.            Heard and perused. The appellants had filed an application for condoning of delay before the learned trial Court, therefore, it is admitted that the suit was infact barred by limitation. The respondents’ application under Order VII rule 11 CPC also pleaded the same cause. Insofar as the case before the appellate Court is concerned, the same was dismissed inter alia on account of being barred by limitation. In view hereof, the following points are framed for determinationper Order XLI rule 31 CPC:

 

(i)         Whether the trial Court should have allowed the application under Section 5 of the Limitation Act, 1908 for condoning the admitted delay in institution of the suit.

 

(ii)        Whether non filing of the Court fee within the limitation period, or thereafter, was a cogent ground for dismissal on account of limitation.

 

5.            Section 5[1] of the Limitation Act 1908 is a provision of law empowering a court to condone delay in the filing of certain specified proceedings, prima facie not including a suit. The factum that such an application was filed by the appellants demonstrated an admitted delay in filing of the suit, which could not be remedied by recourse to the provision of law invoked. In view hereof, no exception could be demonstrated with respect to dismissal of the relevant application by the learned trial court. The corollary to the foregoing appeared to be that in view of the admitted factum of the suit being time barred, the respondent's application under Order VII Rule 11 CPC was allowed. No manifest infirmity is apparent from the order of the learned trial court and none could be identified by the appellants' counsel.

 

6.            Respectfully, this Court is unable to sustain the argument terming limitation as a mere technicality. It is the considered opinion of the Court that the prescriptions of limitation are not mere technicalities and disregard thereof would render entire law of limitation redundant[2]. It has been maintained by the Superior Courts consistently that it is incumbent upon the Courts to first determine whether the proceedings filed there before were within time and the Courts are mandated to conduct such an exercise regardless of whether or not an objection has been taken in such regard[3].

 

7.            In view hereof, it is the considered view of this Court that the application per section 5 of the Limitation Act could not have been allowed by the learned trial court, hence, the first point for determination is answered accordingly.

 

8.            The appellate court had rightly dismissed the appeal, in view of the deliberation of law cited supra, however, the said dismissal was also predicated inter alia upon the admitted factum that the appellants never deposited the court fee, within the period of limitation or at any time thereafter, and further that no application had ever been preferred for extension of time in such regard.

 

9.            It is settled law that failure to pay court fee within the limitation period and / or seeking an extension in terms thereof within the period of limitation would render the appeal itself as time barred.[4]Admittedly, the appellants did not deposit any court fee with the appeal and / or within the period of limitation, hence, the dismissal of the appeal was undertaken in accordance with the law, hence, the final point for determination is answered accordingly.

 

10.         The appellate court had also observed that the appeal there before suffered from yet another infirmity as the relevant decree, admittedly in the field, had never been challenged by the appellants in proceedings per section 96 CPC. This aspect of the impugned appellate order has not been impugned / agitated before this Court by the appellants' counsel, hence, the said infirmity is deemed to have been admitted.

 

11.         It is settled law that a second appeal may only lie if a decision is demonstrated to be contrary to the law; a decision having been failed to determine some material issues; and / or a substantial error in the procedure is pointed out. It is categorically observed that none of the aforesaid ingredients have been identified by the learned counsel.In such regard it is also important to advert to section 101 of CPC, which provides that no appeal shall lie except on the grounds mentioned in the Section 100 of CPC.

 

12.         In view of the reasoning and rationale herein contained, this appeal is found to be devoid of merit, hence, hereby dismissed.

 

 

 

                                                                    JUDGE

                                                         

 


[1]5. Extension of period in certain case.Any appeal or application for a revision or a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefore, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

 

Explanation.The fact that the appellant or applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this section.

[2]Mehmood Khan Mahar vs. Qamar Hussain Puri & Others reported as 2019 MLD 249.

[3]Awan Apparels (Private) Limited & Others vs. United Bank Limited & Others reported as 2004 CLD 732.

[4]2014 CLC 160; 2020 CLC 33; 2009 CLC 262; 1997 SCMR 262; PLD 1981 SC 489; PLD 1979 SC 821; 1979 SCMR 243.