[Lahore (Rawalpindi Bench)]
Before Mirza Viqas Rauf and Sultan Tanvir Ahmad, JJ
AYAZ MEHMOOD----Appellant
Versus
MUSADAQ RIAZ and 2 others----Respondents
R.F.A. No.51 of 2023, decided on 13th February, 2023.
(a) Limitation Act (IX of 1908)---
----Ss. 5 & 14---Civil Procedure Code (V of 1908), O.VII, R. 10---Pursuing case before wrong forum/Court---Condonation of delay---"Sufficient cause"---Due diligence and good faith---Initial burden---Scope---Suit instituted by the plaintiff (appellant) was dismissed by the Civil Court, however, Instead of filing appeal before the High Court, he filed appeal before the District Court which remained pending for about one year and finally the appeal was returned under O.VII, R.10 of C.P.C.---Appellant/plaintiff while preferring appeal before the High / Appellate Court also moved an application for excluding the period of pursing the remedy before the District Court---Validity ---Where the plaint was returned under O.VII, R. 10 of the Civil Procedure Code, 1908, for its representation before the Court of competent jurisdiction, for all intent and purposes, it would be treated as a fresh institution---Application for excluding the period of pursing the remedy before the Court lacking jurisdiction, in the present case, was instituted under S.5 of the Limitation Act, 1908 ('the Limitation Act') which required a litigant to satisfy the Court that he had sufficient cause for not preferring the appeal or making the application within the stipulated time period--- In order to establish "sufficient cause", there was no mathematical formula or hard and fast rule that could be followed, however, although S.14 of the Limitation Act had no direct application to the appeals but the principles enumerated therein could be taken into the consideration by the (Appellate) Court while ascertaining the availability of 'sufficient cause' for condonation of delay---Section 14 of the Limitation Act reflected that it was incumbent upon the litigant, seeking exclusion of time period for pursuing remedy in forum without jurisdiction, to plead the facts to justify the grant of relief and by reasonably demonstrating due diligence and good faith in pursuing the matter before the Court having no jurisdiction to adjudicate---Initial burden, to show the said elements for seeking to exclude the period consumed in prosecuting case before the forum without jurisdiction, was on the applicant pleading such relief---Applicant / appellant miserably failed to plead the elements of S. 14 of the Limitation Act---No plea as to the bona fide on the part of the applicant / appellant or any due diligence on his part had been taken in the application ---Applicant / appellant had failed to give any justification or to argue as to due diligence adopted by the appellant for about one year of pursuing the remedy in wrong forum---Conduct of the applicant / appellant depicted carelessness, lack of required diligence and callous approach on the basis of which condonation of delay under S. 5 of the Limitation Act was sought, without even discharging the initial burden or even pleading necessary ingredients---Application for enlargement of time by excluding the time period of about one year for pursuing remedy before wrong forum, filed by the appellant, had no substance, therefore, the same was dismissed---Appeal was dismissed in limine, in circumstances.
Khushi Muhammad through L.Rs. and others v. Mst. Fazal Bibi and others PLD 2016 SC 872; Monazah Parveen v. Bashir Ahmad and 6 others 2003 SCMR 1300; Abdul Ghani v. Mst. Mussarat Rehana 1985 CLC 2529; Sarmukh Singh v. Channan Singh and others AIR 1960 PH 512 and Munshi v. Punna Ram AIR 1974 Punjab and Haryana 229 ref.
(b) Limitation Act (IX of 1908)---
----Ss. 5 & 14---Civil Procedure Code (V of 1908), O.VII, R. 10---Application for enlargement of time by excluding the time period of pursuing the case before wrong forum /Court---Condonation of delay---"Sufficient cause"---Suit instituted by the plaintiff (appellant) was dismissed by the Civil Court, however, Instead of filing appeal before the High Court, he filed appeal before the District Court which remained pending for about one year and finally the appeal was returned under O.VII, R.10 of the C.P.C.---Appellant/plaintiff while preferring appeal before the High / Appellate Court also moved an application for excluding the period of pursing the remedy before the District Court ---Contention of the applicant / appellant that the cases should be decided on the basis of merits rather than technicalities---Held, that the contention of the applicant / appellant was misconceived as availing the remedy within the period provided by law was not merely a technicality---Section 5 or S.14 of the Limitation Act, 1908, was not intended to add premium to the carelessness or to validate lack of vigilance and required caution by a litigant ---Application for enlargement of time by excluding the time period of about one year for pursuing remedy before wrong forum,filed by the appellant, had no substance, therefore, the same was dismissed ---Appeal was dismissed in limine, in circumstances.
