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IN THE HIGH COURT OF SINDH AT KARACHI

High Court Appeal No. 223 of 2008

Present:

Mr. Justice Muhammad Ather Saeed, and

Mr. Justice Irfan Saadat Khan.

For the Appellants: Mr. Syed Saeeduddin Nasir, Advocate.

For the Respondents: Mr. Mubarak Ahmed, Advocate for Respondent No. 01.

Date of hearing: 02.03.2011.

JUDGMENT

IRFAN SAADAT KHAN, J: This High Court Appeal has been filed against the order passed by the learned Single Judge dated 23.06.2008. Before the learned Counsel appearing for the appellant could start making his submissions, Mr. Mubarak Ahmed learned Counsel appearing on behalf of the Respondent, at the very outset, stated that present Appeal is barred by limitation and submitted that before going into the merits of the case it would be in fitness of things if the issue of maintainability of this Appeal be first decided. Mr. Syed Saeeduddin Nasir learned Counsel appearing on behalf of the appellant agreed to the said proposal and submitted that he is ready to argue the matter on the maintainability of this Appeal.

2. In an exhaustive order dated 09.12.2010 passed by this Bench the averments of both the learned Counsel on the maintainability were recorded. The matter thereafter was adjourned to 12.01.2011 then to 4.02.2011 then to 23.02.2011 when both the learned Counsel further argued their view points on the issue of maintainability and the matter was again adjourned to 2.03.2011 when both the learned Counsel finally concluded their arguments and the judgment on this issue alone was reserved. However it was made clear to both the learned Counsel that since the matter is being heard on the issue of maintainability alone, hence no decision would be given on the merits of the case but if the Bench comes to the conclusion that this Appeal was filed within limitation period only thereafter the case will be heard and disposed off on merits. However if the Bench comes to the conclusion that this Appeal is filed belated and is barred by limitation, the same would be dismissed in limine.

3. Briefly stated that facts of the case are that a dispute arose between the present appellants and the Respondents, being brothers and sisters, over the Dissolution of partnership namely Shaban Corporation and Rendition of its Accounts. The suit was filed by the present respondent bearing Suit No. 1273 of 2002. The suit came up for hearing before the learned Single Judge of this Court, who vide order dated 23.06.2008 disposed of the same in the following manner:-

“In view of the above, preliminary decree passed on 14.04.2004 is confirmed. Office is directed to prepare final decree in terms of Order XX Rule 13 CPC. The Nazir is appointed as Receiver as well as Commissioner to takeover the business and all the assets of the partnership firm moveable or immovable and recover from the defendants No. 01 and 2 including unutilized land of 3.45 acres of Shahban Town. After taking over the all assets is directed to sell the same through public auction on as is where is basis and to distribute the sale proceeds amongst the partners in accordance with their respective shares.

The suit is decreed in the above terms”.

4. The present appellant moved an application for obtaining the certified copy of judgment only and not for decree and filed this appeal alongwith the judgment during the period of limitation. However the appellant stated that the application for obtaining certified copy of the decree was submitted on 18.07.2008 and the decree was filed with the statement before this Court on 26.07.2008. According to the learned Counsel for the Respondent this court can only dispense with filing of the judgment alongwith the appeal but not filing of the decree, as filing of decree is mandatory and filing the decree after the period of limitation for filling the appeal has lapsed makes the appeal non-maintainable. The learned Counsel for the Respondent further submitted that no application for condonation of delay was filed by the appellant and thus the appeal was barred by limitation by thirteen days.

5. The learned Counsel for Respondent also invited our attention to the provisions of Order 41 rule 1 CPC, Order 20 rule 7 CPC and Rule 262 of the Sindh Chief Court Rules to point out that these provisions clearly stipulates that the decree is to be signed and dated and the period of limitation starts from the date of the decree.

In support of his above contentions the learned Counsel has relied upon the following decisions:-

Abdul Majeed and others Vs. Mst. Haleem and others [1987 CLC 2331]

Faqir Muhammad and other Vs. Punjab [1993 PLD Lahore 439]

Government of West Pakistan Vs. Niaz Muhammad [PLD 1967 SC 271]

Cooperative Model Town Society Vs. Mst. Asghari Safdar [2005 SCMR 931]

East & West Steamship Co. Vs. Queensland Insurance Co. Ltd [PLD 1960 Kar. 840]

Fayyaz Ahmed Vs. Hidayat Begum [1997 SCMR 1393]

Datari Construction Co. (Pvt) Ltd. Vs. A. Razak Adamjee [1995 CLC 846]

Siddique Khan v/s Abdul Shakoor Khan [PLD 1984 SC 289]

6. The learned Counsel appearing for the appellant on the other hand submitted that the decree was not prepared at the relevant time and was signed by the Assistant Sealer on 02.07.2008 and the Assistant Registrar on 04.07.2008 and the moment he received the same on 23.07.08 the same was filed on 26.07.2008 hence the appeal was in time. He submitted that the judgment was passed on 23^rd June 2008, he applied for certified copy of the judgment on 24.06.2008 and filed the appeal on 10^th July 2008 without the copy of the decree. He submitted that he applied for certified copy of the decree on 18^th July 2008, which was received by him on 23^rd July 2008 and he filed copy of the same on 26^th July 2008. He further submitted that the cases relied upon the learned Counsel for Respondent are distinguishable, moreover no objection was raised by the office and the present objection raised by the learned Counsel for the respondent is nothing but an after thought on his part and no adverse inference could be drawn in this regard. In the end the learned Counsel submitted that there was no delay in filing of this Appeal as the same had been filed within the limitation period. In support of contentions the learned Counsel relied upon the following decisions:-

Baseer Ahmad Siddiqui versus Shama Afroz [1988 SCMR 892]

Sher versus Bhai Khan [2008 CLC 232]

1983 SCMR 883 (SIC)

7. We have heard both the learned Counsel at considerable length and have perused the record and the decisions relied upon by them.

8. The core controversy involved in the case revolves around the fact that whether this Appeal was filed within the limitation period or not and whether the appeal filed by the appellant without the copy of the decree obtained subsequently could be considered within time and whether the subsequent filing of the decree after the time limit would render the appeal barred by limitation or not.

The facts of the case in chronological order are:-

Judgment passed on 23.06.2008

Application for obtaining copy of Judgment filed on 24.06.2008

Copy of the judgment obtained on 28.06.2008

Appeal filed on 10.07.2008

Decree signed on 23.06.2008

Decree prepared by Assistant Sealer on 2.07.2008

Copy forwarded to Nazir for information and necessary compliance by Assistant Registrar on 4.07.2008

Application for obtaining certified copy of decree filed on 18.07.2008

Copy of the decree obtained on 23.07.2008

Copy of the decree filed on 26.07.2008.

It would be in fitness of things if the relevant law in this regard is first discussed.

Order 41 Rule 1 CPC:

“Form of appeal. What to accompany memorandum.—(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded.

Contents of memorandum.—(2) The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively.

Order 20 Rule 7 CPC

7. Date of Decree.—The decree shall bear date the day on which the judgment was pronounced and when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree”.

Rule 262 of the Sindh Chief Courts Rules:

“Date of signing decree to be also endorsed. The Judge when signing the decree shall write below his signature also the date, month and year on which the decree is actually signed by him”.

Article 151 of the Limitation Act :-

Description of Suit Period of Time from which

Limitation periods begins to run

1 2 3

151. From a decree or order of

a High Court in the exercise

of its original jurisdiction.

Twenty

days

The date of the decree or order

9. Before dilating on the controversy involved in the case, we first would like to reproduce extracts from some of the above referred reported judgments herein below:-

Government of Sindh Vs. Muhammad Juman and another (2009 SCMR 1407)

“We have heard the learned Counsel for the parties and examined the available record. Firstly, dealing with the question of limitation. Admittedly, the impugned judgment was announced on 15.11.1999 and decree sheet (available at page No. 31 of the paper book) shows that it was drawn and signed on 8.12.1999. Order XX, rule 7 of C.P.C. provides that the decree shall bear date, on which the judgment was pronounced, that the decree will be drawn up in accordance with the judgment and it will be signed. This Court in the judgment reported as Government of West Pakistan v. Niaz Muhammad PLD 1967 SC 271 while considering the provisions of Order XX, rule 7, Order XLI, rule 1 and Article 156 of Schedule to Limitation Act, 1908, held that limitation for filing appeal will commence from the date of decree and that time which elapses between the announcement of the judgment and signing of the decree is included in time requisite for obtaining the copy of the judgment and decree. Thus it can safely be held that limitation under Article 156 of the Limitation Act for filing the appeal runs from the date of signing of the decree. As noted above, the decree was drawn and signed on 8.12.1999, therefore, as per the law declared by this Court in the case of Government of West Pakistan (ibid), the period for filing appeal before this Court will run from the date of signing of the decree i.e. 8.12.1999. The learned Counsel for the Respondents does not dispute that if the time is computed from 8.12.1999, the present appeal is within time. In view whereof, we are of the firm view that time to file the present appeal will run from 8.12.1999, therefore the present appeal was filed within time and the Office objection to this effect stands overruled”.

Nuruddin Vs. Ghulam Mustafa (PLD 1975 Karachi 688)

“According to Order XXI, rule 11 (2) of the Code of Civil Procedure, every application for execution shall contain the date of the decree, and according to sub-rule (3), the Court to which an application is made under sub-rule (2), may require the applicant to produce a certified copy of the decree. It is true that according to sub-rule (1) of rule 1 of Order XLI, a memorandum of appeal shall be accompanied by a copy of the decree appealed from. However, the limitation for the filing of an appeal, under Article 156, and an execution application under Article 182 of the Limitation Act, is 90 days and 3 years respectively from “the date of decree or order”. The execution application in question was admittedly filed within 3 years of the signing of the decree by the District Judge, though the date of the judgment would put it beyond that period. The limitation, to my mind, would run from the date when the decree was drawn up and signed”.

Government of Pakistan West Vs. Niaz Muhammad (PLD 1967 S.C. 271)

“Article 156 of the Limitation Act prescribes with precision the terminus a quo for an appeal of this kind. This is “the date of the decree or order appealed from” and the words are apt to bear the inference that a decree always follows upon a judgment in a suit and does not follow upon an order than a judgment. By the effect of Order XX, rule 7, the decree is to bear the date of the judgment and it would appear that in a case where Order XX, rule 7, C.P.C., is applied, the time which elapses between the announcement of the judgment and the signing of the decree is included in the time requisite for obtaining a copy of the judgment and the decree. Reference to Order XLI, rule 1, will show that a memorandum of appeal is to be “accompanied by a copy of the decree appealed from and (unless the appellate Court dispense therewith) of the judgment on which it is founded.” The rule places primary importance upon there being attached to the memorandum a copy of the decree, and clearly mentions the judgment in terms of lesser essentiality. From this a conclusion may be reached, at least tentatively, that until the decree has been made out so that a copy thereof may be obtained, the requirements of Order XLI, rule 1, cannot be met. In other words, that the date of taking steps requisite for satisfying the requirements of Order XLI, rule 1, commences, from the point of view of limitation, from the time when the decree has come into existence. The view that application can be made by an interested party at any time after announcement of the judgment, and that if this is delayed until after the decree has been signed, the conclusion of negligence on the part of the person applying must follow, does not in our view, find full support from the wording of Order XLI, rule 1. There is a difference between anxiety and due diligence. An anxious litigant may make an immediate application after the announcement of the judgment, but for satisfaction as to due diligence, it is the requirement of law, which must determine the matter. There being a sanction provided, viz., that of dismissal if the prescribed period of limitation is exceeded, care should be taken that no burden is placed upon the litigant which is heavier than that which the statute, fairly interpreted within its terms, imposes. Since Order XLI, rule 1, renders it possible for an appellate Court to dispense with the copy of the judgment, but not of the copy of the decree, for the due presentation of a memorandum of appeal, and since Article 156, in terms, prescribes the date of the decree, and not the judgment, as the terminus a quo, the duty of the litigant should be assessed in relation principally to procurement of a copy of the decree. Just as no application for copy of a judgment can be expected to be made until the judgment has at least been announced, so, no litigant satisfying the law in its terms can be required to make application for a copy of the decree before that decree has come into existence. The relevant law appears clearly to distinguish between the judgment and the decree which follows upon it, and speaking with respect, this distinction cannot be allowed to be obscured on assumptions, such as, that a decree “in a legal sense” comes into existence as soon as a judgment is pronounced, or that “in its essence” a decree is not a thing “separable from the judgment. (emphasis is supplied).

The conclusions reached above are unaffected by the fact that Order XX, rule 7, C.P.C., requires that the decree should bear the same date as the judgment. That provision renders the formal expression of the adjudication effective, as between the parties, from the date of such adjudication, but it can’t be construed so as to enhance the burden expressly imposed on the litigant by Order XLI, rule 1, C.P.C., read with Article 156, aforesaid, in respect of exercise of the right of appeal. Where there is delay in signing of the decree, that would ordinarily be accommodated in the period requisite for obtaining a copy of the decree, even if notionally, the date of signing of the decree is related back to the date of the judgment, for purposes of limitation. But the time would still run from the date of signing of the decree, under Article 156”.

Baseer Ahmad Siddiqui Vs. Shama Afroz (1988 SCMR 892)

“The other aspect of the case is that if the respondent had actually made an application for copy of the decree before the trial Court, there is nothing on the record to indicate whether this copy was prepared and notice given to the respondent that the same is ready for delivery. All these circumstances seem to justify the conclusion of the High Court that the Respondent was not at fault for not obtaining a copy of the decree from the trial Court. In these circumstances we feel that it is not necessary to determine the question of law raised by the learned Counsel, as we do not consider this a fit case to determine the same. In substance the High Court had condoned the delay in submitting the decree sheet by the Respondent after the filing of the appeal”.

Faquir Muhammad and 48 others Vs. Province of Punjab (PLD 1993 Lahore 493)

“The learned counsel for the respondents has rightly canvassed at the Bar that while presenting memorandum of appeal, copy of judgment can be dispensed with by the Court but not the decree. And the appeal unaccompanied by the decree sheet cannot be entertained and if subsequently the same is allowed by the Court that would be subject to mischief of Limitation Act. To support the contention, the learned counsel placed reliance upon the following precedents:

(i) Imam Gul v. Mst. Begum Jai (1980 CLC 530)

(ii) Muhammad Anwar etc. v. Mst. Soma (1981 CLC 1490)

(iii) Abdul Majeed and 6 others v. Mst. Haleema and 18 others (1987 CLC 2331) and

(iv) Abdul Sattar and 2 others v. Khuda-e-Dad (PLD 1986 Quetta 11)

10. The ratio of the cited authorities is that the appellate Court is empowered to dispense with the copy of the judgment and the requirement that a copy of the decree should be filed alongwith the memorandum of appeal was mandatory and that in absence of copy of such decree, the appeal would be incompetent.

11. Admittedly the appeal is not accompanied by the decree sheet. The explanation of the learned Counsel for the appellants is that if was not available at the relevant time and was prepared subsequently. If the case was so, the appellants or their counsel ought to have brought the matter to the notice of the learned Additional District Judge passing the judgment and the decree or the learned District Judge on his administrative side. While preferring the appeal, the learned counsel had not brought the omission to the notice of this court and had also not mentioned the fact in the memorandum of appeal. In the circumstances, the contention is overruled. The decree sheet is available on the original record and if the appellants are now directed to place its certified copy, that would take the appeal out of limitation”.

Abdul Majeed and 6 others v/s Mst. Haleema and 18 others (1987 CLC 2331)

“7. It may be seen that the production of a copy of the judgment can be dispensed with by the Appellate Court but a copy of the decree appealed from must be filed alongwith the appeal. Undoubtedly when the learned lower Court did not prepare the decree-sheet, the District Judge should have granted time to the appellant to get the decree prepared and filed with the appeal during the period of limitation. The appeal was filed on 21-01-1985 and the copy of the decree-sheet was not appended with the file till 28.05.1985 when the appeal was decided. The petitioners did not bother to apply to the learned Trial Court for preparation of the decree nor did they care to asking the learned District Judge to direct the trial Court to prepare a copy of the decree. They did not move any petition for the condonation of delay as envisaged under section 5 of the Limitation Act, they do not know when the decree-sheet was prepared and they were indolent for a period of more than four months in filing the copy of the decree-sheet. The copy of the decree filed with this revision petition shows that it was prepared on 5.01.1986. All the official acts are presumed to be done in a right manner unless proved otherwise.

8. In para 1 of the memorandum of appeal that the copy of the decree has not been prepared by the learned trial Court and its production may be dispensed with. The prayer is to dispense with the copy of the decree which runs counter to the provisions of Order XLI rule 1 C.P.C. In this manner the learned appellate Court has rightly dismissed the appeal of the petitioners and has not committed any illegality or material irregularity in the exercise of its jurisdiction. The revision petition fails and is dismissed with costs”.

Datari Construction Co. (Pvt) Ltd Vs. A. Razzak Adamjee &others (1995 CLC 846)

“We are of the humble view that in case an application for obtaining a copy of the decree has already been made, and the decree is signed later on, the period which thus elapses, would be deemed to be the time requisite for the obtaining of the copy, because the signing of the decree is a matter which is not within the control of the applicant. By the mere act of applying for the copy, the applicant does whatever is within his power with the diligence and caution to obtain the benefit of section 12. But if he does not put in the application for a copy till after the decree has been signed, he cannot be said to have exercised due diligence and caution and in that case, period which elapses between the date of the judgment and the date of the signing of the decree cannot be considered to be the time requisite for obtaining the copies.

We, therefore, hold that the period between the date of judgment i.e. 20.12.1990 and date of signing the decree i.e. 21.02.1991 cannot be excluded as the application for obtaining a copy of decree was not made within limitation from the date of judgment.

The fact that the application for the copy of the decree was made on 16.03.1991 after the judgment, therefore, is of no avail to the appellants. In this view of the matter, the preliminary objections prevail and we hold that H.C.A. No. 58 of 1991 filed by Mst. Hameeda Khuhro and another is beyond time”.

Cooperative Model Town Society Vs. Mst. Asghari Safdar & Ors.(2005 SCMR 931)

“It has been clearly provided in Order XLI, rule 1, C.P.C. as reproduced above that certified copy of the decree had to be appended with the memo of appeal which is followed by the limiting words regarding certified copy of the judgment on which the same was based therefore, the provision regarding production of certified copy of the decree-sheet shall be deemed to be mandatory. It has further been held in the case of Akbar Khan v. Muhammad Razzaq alias Abdur Razzaq PLD 1979 SC 830 that the appeal was not properly constituted if the same had been filed without certified copy of the decree-sheet”.

10. From the reading of above provisions of the law and the decisions cited above the following proposition of law could be deduced:-

1. Every intra-Court appeal filed against the order of a Single Judge of this Court as per Order 41 Rule 1 CPC has to be accompanied with a copy of the decree appealed from.

2. The time limit for such appeal is twenty days from the date of the decree, as per Article 151 of the Limitation Act.

3. Section 12 of the Limitation Act allows the time elapsed between the day of the application and the day of obtaining copy of the decree.

4. The decree should bear date on which it was signed and drawn in accordance with the judgment. Time for filing the appeal will commence from the date of decree and the time elapsed between the announcement of the judgment and signing of the decree is included in the time requisite for obtaining the copy of the judgment and decree.

5. Every memorandum of appeal should be accompanied with the copy of the decree and copy of the judgment can be dispensed with by the Court but not the decree, as appeal is incompetent if the same is filed without the decree.

11. Now coming to the facts of the present case it would be seen that in the present case admittedly the appeal was filed on 10.07.2008 without the copy of the decree which was signed on 23.06.2008.

12. There is no cavil to the proposition that in reckoning the time limit, the time requisite in obtaining copy has to be excluded and the limitation comes to a stand still and does not run in the period from the date of the application to the date an order or decree is obtained.

13. Article 151 of the Limitation Act clearly stipulates the period of 20 days for filing the appeal commencing from the date of decree or order and as per Order 41 Rule 1 CPC appeal has to be accompanied with a copy of the decree. If these two provisions of law are read together it would reveal that the limitation would start running from date of decree which is 20 days and any appeal filed thereafter would be barred by limitation. It is also a trite proposition of law that once time begins to run it does not stop and an appeal filed after the expiry of limitation period would abate as a whole. It was held by the Hon’ble Supreme Court of Pakistan in case of Haji Ghulam Rasool v/s Federation of Pakistan that period of limitation to which Article 151 applies is 20 days and any appeal filed beyond the period of 20 days would be barred by time under section 3 of the Limitation Act. Requirement of filing copy of the decree alongwith appeal is sine qua non for filing the appeal and if the appeal is filed without the same it will not be presumed to have been validly presented. As per the provisions of Order 41 Rule 1 CPC, Court has the authority to dispense with the copy of the judgment but has no authority or power to dispense with the copy of the decree. Appeal is considered to be valid only when a copy of the decree is appended thereto and an appeal filed without complying with this mandatory requirement could not be considered to be an appeal properly instituted. The provisions of Order 41 Rule 1 CPC being mandatory in nature has to be complied with and an appeal filed in violation of the above provision of law is not a competent and a valid appeal.

14. We were able to lay our hands on a decision given by the Hon’ble Supreme Court of Pakistan in the case of Akbar Khan v/s Muhammad Razzak (PLD 1979 SC 830) wherein the Hon’ble Apex Court has observed as under:-

“As a result, we are in respectful agreement with the opinion expressed in these cases that the filing of a certified copy of the judgment and decree of the Court of the first instance is a mandatory requirement, and if they are not filed alongwith the memorandum of second appeal in the High Court, then the appeal cannot be said to be the properly constituted, unless the requirement has been dispensed with by the High Court in terms of the relevant rule itself; and if the certified copy is filed after the expiry of the period of limitation, then the appeal is to be treated as time barred, unless the delay is condoned under section 5 of the Limitation Act in the peculiar circumstances of the case concerned”.

15. Perusal of the above referred decisions would reveal that, as argued by the learned counsel for the respondents, the Court has the power to dispense with the judgment but not the decree. Moreover omission to file decree is fatal and renders the appeal non-maintainable if the same was not filed within the period of limitation.

16. After quoting the relevant laws and the case law on the point under discussion, we would now proceed to examine the facts of this case in view of the law laid down by the superior Courts. In the present case, admittedly, the judgment was given on 23.6.2008. It is also a fact that a decree follows a judgment and, as required under Rule 262 of the Sindh Chief Court Rules, “the Judge when signing the decree shall write below his signature also the date, month and year on which the decree is actually signed by him.” Unfortunately, this mandatory requirement of law had not been complied with in the present case and although the date, month and year is written over the signature of the learned Single Judge who has signed the Decree but not below his signatures and that too not by the learned Judge himself. This throws up a very important question – when the decree was prepared i.e signed by the learned Judge? If the decree is minutely examined for answering this question it will transpire that although the learned Single Judge has not written the date of signing of the decree below his signature but, there is a clear indication that the decree could not have been signed on 23 June 2008 as the decree itself reveals that it was sent for the signature of the learned Single Judge on 2.7.2008 as this was the date on which the Assistant Sealer has signed it for forwarding the same to the learned Judge for signature. Therefore, at the most, it could have been signed on 2.7.2008 and not before that date as the decree itself was not in existence prior to 2.7.2008. If the date of the decree is taken to be 2.7.2008 i.e. on which date the Assistant Sealer, after preparing the decree, sent the same for the signature of the learned Judge, in such case the present appeal appears to be within the limitation period of 20 days as, admittedly, the decree was prepared on 2.7.2008, the application for obtaining certified copy of the decree was filed on 18.7.2008 i.e. after 16 days from the date of preparation of the decree, the copy of the decree was obtained on 23.7.2008 and the copy of the decree was filed in Court on 26.7.2008 i.e. after three days and if 16 days are added to these three days the cumulative figure comes to 19 days.

17. We have recently in our unreported judgment dated 05.05.2011 in the case of National Refinery Ltd. Vs. Falcon Enterprises in H.C.A. No.332 of 2006 by following the judgment in the case of Niaz Muhammad, quoted supra, held that the period of limitation starts from the date the decree is signed and as noted above the decree has been filed within 20 days of its assumed signing excluding the period spent in obtaining a certified copy of the decree.

18. We, therefore, keeping in view the above proposition of law that non-filing of the certified copy of decree would be fatal if the same is not filed within the period of limitation, are of the considered opinion in view of the judgments referred to above that this appeal was filed within the period of limitation and is maintainable.

19. In view of the above, the application under Order VII, Rule 11, CPC (CMA No.1519/2008) filed by the respondents, is dismissed and the office is directed to fix the case in Court for appropriate orders.

Judge

Karachi

Dated _____ June, 2011.