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2024 SCMR 107 SUPREME-COURT

FAQIR MUHAMMAD Versus KHURSHEED BIBI
Civil Procedure Code 1908 Order XLI(1), (3), (9) | Limitation Act
1908 Section 5
jurisdiction vested in court, Civil Procedure Code Order XLI, appellate court
jurisdiction examination, condonation of delay, Limitation Act 1908 Section
5, period of limitation, court fees payment, appellate court staff
responsibility,
Key Legal Issues

 Jurisdiction of courts
 Responsibility of court staff in examining appeals
 Application of the principle actus curiae neminem gravabit
 Interpretation of limitation periods under the Limitation Act, 1908

Holding
The court concluded that the appeal should not have been dismissed on
technical grounds. The courts, including their staff, have an obligation to
diligently check the jurisdiction and raise objections as needed. The original
dismissal was based on the High Court's error regarding jurisdiction and
delay. The case was remanded back to the High Court to decide on its
merits.
Reasoning

 The failure to correctly process the appeals was partly due to the omission
of the Appellate Court’s staff.
 The appellant filed the appeals using the original property valuation which
was not questioned until much later.
 The High Court dismissed the delay condonation applications without
considering whether the appellant had acted diligently.
 The legal principle that no one should suffer due to the error of the court
(actus curiae neminem gravabit) was applicable.

Judgement

MUHAMMAD ALI MAZHAR, J.---These Civil Petitions for leave to appeal

have been brought to challenge the Judgments dated 09.02.2016 passed
by the learned Division Bench of the Lahore High Court, Lahore ("High
Court") in R.F.A. No. 459/2011 and R.F.A. No. 460/2011, whereby both the
appeals were dismissed being barred by time with the findings that the
petitioner/appellant completely failed to show his bona fide of due care in
prosecuting the case and also remained unsuccessful in explaining the
delay incurred in filing the appeals.

2.According to the minutiae of the case, both respondent No.1 (Khurshid

Bibi) in C.P. No. 1877-L/2016 and respondent No.1 (Jamila Begum) in C.P.
No. 1878-L/2016, separately filed Civil Suit No. 451-1/2009 and Civil Suit
No.1930-1/2003 respectively, for declaration in the Court of the Civil Judge
1st Class, Faisalabad with the assertion that the suit properties mentioned
in their Civil Suits were originally owned and possessed by their uncle,
Ghulam Muhammad. Both the plaintiffs in the aforesaid Civil Suits claimed
that they are the nieces of Ghulam Muhammad, who died issueless and
gifted the property to them. It was further alleged that Ghulam Muhammad
was in possession of the property since the creation of Pakistan and raised
construction thereon. The present petitioner (Faqir Muhammad) was a
defendant in the suits who alleged in the written statement that Ghulam
Muhammad, as a result of agreement to sell dated 13.10.1986 with Shah
Muhammad and Ghulam Rasool, received sale consideration of
Rs.300,000/- and delivered possession to them. He further alleged that the
gift mentioned in the plaints was against the law and facts. The learned
Trial Court settled the issues in both the suits, and by means of separate
judgments of even date, decreed the suits and accepted the gifts only to
the extent of the superstructure. However, on account of Issue No.3 in both
suits, which pertained to the valuation of suit, the learned Trial Court held
that the value of the property in question was between Rs.40,00,000/- to
Rs.45,00,000/-; hence the respondents No. 1/plaintiffs were directed in the
judgments to pay court fees in the sum of Rs.15,000/- within 45 days,
failing which the plaints shall be rejected.

3.Being aggrieved and dissatisfied with the judgment and decree, the
petitioner filed First Appeals before the District and Sessions Judge,
Faisalabad ("D&SJ") on 06.07.2010, based on the same valuation that was
originally worked out by the respondents No. 1/plaintiffs according to the
Suits Valuation Act, 1887 ("Suits Valuation Act") in the plaints. The appeals
remained pending for a considerable time; however, during the midst of the
proceedings, the Appellate Court allowed the petitioner to file amended
memos of appeal, and finally, on 17.05.2011, the Additional District and
Sessions Judge, Faisalabad ("ADJ") passed the following order in both
appeals separately:

"Partial arguments heard. It has been transpired from the title of the appeal
that valuation of suit for the purposes of court and jurisdiction was fixed as
Rs.40/45,00,000/-. An appeal in a suit having valuation more than
Rs.25,00,000/- is to be filed before the Honourable Lahore High Court,
Lahore. This court has no pecuniary jurisdiction to adjudicate upon the
appeal in hand, hence it is returned to the appellant for its institution in the
competent court. File of this Court be consigned to the record room,
whereas, record of learned trial court be sent back along with copy of order
of this court."

4.The learned counsel for the petitioner argued that the appeals filed
before the ADJ remained pending for a considerable period and were
thereafter returned due to a lack of pecuniary jurisdiction. She further
argued that the suit was originally valued at Rs.200/- according to the Suits
Valuation Act, however, during the proceedings, the learned Trial Court
reached the conclusion that the value of the property was more than
Rs.40,00,000/-, and therefore, in the judgments, the respondents No.
1/plaintiffs were directed to pay the court fees to make the deficiency good.
Based on the original valuation, the appeals were filed before the D&SJ,
which remained pending for a considerable period and, within one month of
their return, the appeals were filed in the High Court. However, despite
showing sufficient cause, the learned High Court dismissed the
applications for condonation along with the main appeals.

5.The learned counsel for the respondents argued that the appeals were
filed in the wrong forum with mala fide intention, despite knowledge that the
value was enhanced through the judgments passed by the Trial Court.
However, he could not deny that the original valuation of suit was
calculated as Rs.200, which remained the same until the date of the
judgments without any amendment in the plaints. It was also not denied
that the appeals remained pending for a considerable time without any
objection.

6.Arguments heard. The record divulges that the appeals were filed by the
petitioner on 06.07.2010, while the memos of appeal were returned to the
petitioner on 17.05.2011 for institution in the competent Court. Thereafter,
the petitioner presented the Regular First Appeals in the High Court on
13.06.2011, along with the application for condonation of delay. What
comes into sight is that the application moved by the petitioner for
condonation of delay was dismissed on a hyper-technical ground without
adverting to the fact that, although the direction to make good the
deficiency of court fees was passed in the judgments when the learned
Trial Court rendered its findings on the valuation of the property, there was
no direction to amend the plaints with regard to the value of the property in
accordance with the Suits Valuation Act, hence the Trial Court's valuation
was not reflected in the plaints which created considerable confusion.
There is no doubt that, in order to safeguard the interest of the State with
regard to the payment of court fees, the direction was issued to pay the
court fees within 45 days, but this was done without any direction for the
amendment of the plaints for the purposes of valuation to complement the
provisions of the Suits Valuation Act.

7.According to Order XLI, Rule 1 of the Code of Civil Procedure, 1908

("C.P.C."), every appeal is required to 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, along with a copy of the
decree appealed from. It is also a requirement of law that the memorandum
of appeal should 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. Under Rule 3 of Order
XLI, C.P.C., it is envisaged that where the memorandum of appeal is not
drawn up in the manner hereinbefore prescribed, it may be rejected, or be
returned to the appellant for the purpose of being amended within a time to
be fixed by the Court, or be amended then and there; and where the Court
rejects any memorandum, it shall record the reason for such rejection and
if the memorandum of appeal is amended, the judge, or such officer as he
appoints in this behalf, shall sign or initial the amendment. Under Rule 9 of
the same Order, it is further provided that where a memorandum of appeal
is admitted, the Appellate Court or the proper officer of that Court shall
endorse thereon the date of presentation, and shall register the appeal in a
book to be kept for the purpose.

8.A survey of the aforesaid provisions cited from the C.P.C. emphasizes
the onerous duty of the Court, including the Officer of the Appellate Court
or any staff member of the Court (clerk of court/chief ministerial officer) who
has been authorized and assigned the task to accept the presentation of
the memo of appeal before admission and diligently examine the memo of
appeal, and judgment and decree, including all supporting documents, to
ensure that everything is in order, and, if there is any doubt in the mind of
the concerned Court clerk/official with regard to jurisdiction, they should
raise the objection(s) and bring it to the attention of the Court to resolve it;
and if the Court concludes at the time of admission that the appeal has
been filed at the wrong forum, whether due to a lack of territorial or
pecuniary jurisdiction, or some other ancillary or incidental reasons, the
memo of appeal should be promptly returned to the appellant to elect the
right remedy and forum to avoid rendering the decision of the Court coram
non judice at the end of the day. The available record indicates that the
appeals were admitted by the learned ADJ for regular hearing on
06.07.2010 and the operation of the impugned judgment of the Civil Court
was also suspended until the next date of hearing which demonstrates that
neither the relevant Court Staff invited the attention of the Court with regard
to the valuation of suit added on in the judgments, nor did they raise any
objection to the pecuniary jurisdiction, nor did the Appellate Court itself
scrutinize the judgment and decree to determine its own jurisdiction.
Instead the matter remained pending for a considerable period of time and
the proceedings continued without any demur up to 17.05.2011 when the
learned ADJ concluded that he had no pecuniary jurisdiction to adjudicate
upon the appeals and returned the memos of appeal to the petitioner for
institution in the High Court. The examination and evaluation of jurisdiction
at the initial stage is also significant pursuant to the well-settled explication
of law that the parties cannot, by mutual consent, take away the jurisdiction
vested in any Court of law, nor can they confer jurisdiction to any Court not
vested in it by law.

9.In the application moved under section 5 of the Limitation Act, 1908
("Limitation Act"), the petitioner highlighted all the circumstances and
events necessitating the condonation of delay in good faith and clearly
pleaded that the proceedings continued without any objection and on
17.05.2011 the learned Appellate Court realized that it lacked the requisite
pecuniary jurisdiction. It was further averred that the petitioner had not filed
the appeals in the wrong forum deliberately, rather the original valuation of
the suit was fixed at Rs.200/-, and neither the Court pointed out any defect
of jurisdiction, nor did the other side raise any objection. Despite furnishing
a reasonable explanation to justify the delay, the learned High Court
dismissed the application without adverting to the bona fide of the petitioner
to prosecute the appeals diligently. So far as the defect of choosing or
opting for the wrong forum to present the appeals is concerned, the
circumstances reveal that the petitioner was not solely responsible, rather it
was due to the inadvertence of the Court staff that the question of
pecuniary jurisdiction was not highlighted at the very initial stage in order to
cure the defect within the period of limitation allowed for filing the appeals.
Without a doubt, it is the responsibility of the appellant and, more
importantly, of their counsel, being a legal expert, to oversee and ensure
after due diligence that the appeal is being preferred before the right forum
without any deficiency or oversight of jurisdiction and advise the client
accordingly, but at the same time, it is also the bilateral and collaborative
responsibility of the concerned Court staff not to sit as a silent spectator,
but to also examine the memo of appeal diligently and conscientiously at
the time of its first presentation in the Court (i.e. before the stage of
admission) and raise objections immediately in writing, if any, with regard
to jurisdiction and then invite the attention of the Court so that if the Court,
after a preliminary hearing of the advocate or appellant, deems it fit to
return the memo of appeal for presentation before the competent Court, the
exercise should be done immediately rather than devastating or wrecking
the residual period of limitation to approach the right forum which had
virtually expired or lapsed. In this regard, wherever and whenever needed,
the proper training of the Court's staff is also indispensable, being a
cardinal limb of the doctrine of safe administration of justice. Sometimes,
due to trivial errors or omissions on the part of Court staff, serious prejudice
may be caused to the litigants, which is also a violation of the doctrine of
due process and opposed to the right of fair trial enshrined under Article
10A of the Constitution of the Islamic Republic of Pakistan, 1973.
Moreover, it is also a well settled elucidation of law that an inadvertent error
or lapse on the part of Court may be reviewed in view of the renowned
legal maxim "actus curiae neminem gravabit", recognized by both local and
foreign jurisdictions which articulates that no man should suffer because of
the fault of the Court or that an act of the Court shall prejudice no one. This
maxim is rooted in the notion of justice and is a benchmark for the
administration of law and justice to ensure that justice has been done with
strict adherence to the law and for undoing the wrong so that no injury
should be caused by any act or omission of the Court. The proper place of
procedure in any system of administration of justice is to help and not to
thwart the grant to the people of their rights. All technicalities have to be
avoided unless it is essential to comply with them on grounds of public
policy [Ref: Imtiaz Ahmad v. Ghulam Ali and others (PLD 1963 SC 382)].

10.At this juncture, we cannot lose sight of the judgment rendered by this
Court in the case of Khushi Muhammad through L.Rs. and others v. Mst.
Fazal Bibi and others (PLD 2016 SC 872), wherein a question was posed
regarding whether the time spent in pursuing an appeal before a wrong
forum can be condoned and/or excluded from the prescribed period of
limitation with further observation that an appellant who approaches the
wrong forum (one lacking jurisdiction) should not be given the premium of
his own negligence; especially in cases where the institution of an appeal
before the wrong forum is tainted with mala fide intention (emphasis
supplied). To answer this proposition of fact and law, this Court framed a
specific question as under:

"Question No.3:- Where an appeal which has been entertained by the staff
of the court or the court itself which has no pecuniary jurisdiction and is
ultimately returned to the appellant or is dismissed, whether this protects
the appellant from the bar of limitation and/or constitutes a sufficient cause
for the condonation of delay on the principle of actus curiae neminem
gravabit".
To address the aforementioned question, this Court stated in Paragraph 39
of the judgment as under:-

"39. The noted maxim which connotes "an act of the court shall prejudice
no man" is founded upon justice and good sense; and affords a safe and
certain guide for the administration of law and justice. It is meant to
promote and ensure that the ends of justice are met; it prescribes that no
harm and injury to the rights and the interest of the litigants before the court
shall be caused by the act or omission of the court. This rule of
administration of justice is meant for the benefit of both sides of litigants
before the court and it would be illogical to conceive that the rule would or
should be applied for the advantage of one litigant to the prejudice and
disadvantage of the other. It is the duty of the court to act as a neutral
arbiter between the parties and to provide justice to them through strict
adherence to law and keeping in mind the facts of each case. The rule is
neither meant to provide a premium to the negligent litigant who finds
himself on the wrong side of limitation for unfounded reasons and nor to
impair the rights of the other side. The principles of proportionality and
balancing have to be kept at the forefront by the court whilst applying this
rule. The Court must see what fault, if any, has been committed by the
court on account of which a litigant has been made to suffer; then the court
must consider whether the benefit of the rule can or should be extended to
a negligent litigant who has failed to make out a sufficient cause in terms of
Section 5 of the Act as explained above. (Emphasis supplied) In our candid
opinion the principle actus curiae neminem gravabit has no application
where a litigant approaches a wrong forum and such appeal is entertained
by the staff of the court or by the court or even admitted to regular hearing.
Thus no condonation of delay can be availed by the appellant on the basis
of this principle".

11.In the dictum rendered by this Court in the Khushi Muhammad (supra),
it was opined that the principle "actus curiae neminem gravabit" has no
application where a litigant approaches a wrong forum even if it is
entertained by the Court staff. Thus no condonation of delay can be availed
on this principle, but in unison as a rider and precondition it has been made
obligatory that the Court must examine what fault, if any, has been
committed by the Court on account of which a litigant has been made to
suffer; then the Court must consider whether the benefit of the rule can or
should be extended to a negligent litigant who has failed to make out a
sufficient cause in terms of section 5 of the Limitation Act as explained
above.
12.In the instant case, it is resonating beyond any shadow of doubt that
neither any request was made by the petitioner on its own motion at any
belated stage for returning the memos of appeal for presentation in the
competent forum nor is it evident from the record that he filed the appeals
before the wrong forum due to mala fide intention. On the contrary, it is
evident from the record that the Appellate Court at the final stage of the
case when the appeals had, in all respects, ripened for hearing and its
logical finale, returned the memos of appeal on its own motion, after a
considerable period, for presentation in the High Court and consigned the
files to the record room. So in all fairness, according to the dictum laid
down in the case of Khushi Muhammad (supra), the learned High Court
was required to consider the fault committed by the Court on account of
which the petitioner has been made to suffer and whether the benefit of the
principle "actus curiae neminem gravabit" should be extended or not, and
whether the petitioner has made out the case for condonation with
sufficient cause or failed to make out a case in terms of section 5 of the
Limitation Act. The ground reality is that the petitioner was pursuing the
matter diligently and, keeping in mind the original valuation of the suit in the
plaints, the appeals were filed before the D&SJ, apparently due to a bona
fide mistake. No doubt, the scope and niceties of sections 5 and 14 of the
Limitation Act are distinct in application and concentration but the purpose
is almost the same. Section 5 of the Limitation Act is germane to the
extension of period in appeal or application/revision or review of the
judgment, or for leave to appeal, or any other application to which this
Section is made applicable by or under any enactment and the aforesaid
genre of proceedings may be admitted after the period of limitation
prescribed, provided the Court is satisfied that the appellant or applicant
has brought to light sufficient cause for not preferring the appeal or
application within the prescribed period of limitation. On the other hand,
section 14 of the Limitation Act pertains to the exclusion of time of
proceeding bona fide in a Court without jurisdiction, and, in computing the
period of limitation prescribed for any suit, the time during which the plaintiff
has been prosecuting with due diligence another civil proceeding, whether
in a Court of first instance or in a Court of appeal, against the defendant,
shall be excluded, where the proceeding is founded upon the same cause
of action and is prosecuted in good faith in a Court which, due to the defect
of jurisdiction, or other cause of a like nature, is unable to entertain it. Each
case has to be decided on its own facts and in the present case, what we
have perceived is that the application for condonation of delay was
dismissed without any convincing justification, therefore, in the interest of
justice and fair play, we feel it appropriate to hold that the petitioner should
not have been knocked out on a hyper-technical ground rather, in order to
advance the cause of justice, the Regular First Appeals should have been
heard on merits.

13.The aforesaid Civil Petitions were converted into Civil Appeals and
allowed vide our short order dated 26.09.2023 in the following terms:

"For the reasons to be recorded later, these petitions are converted into
appeals and allowed. The impugned judgment is set aside and the matter
is remanded back to the High Court, where Regular First Appeals Nos. 459
and 460/2011 are deemed to be pending before the High Court and the
same are to be decided on merits in accordance with law."

14.Above are the reasons assigned in support of our short order.

MWA/F-21/SCAppeals allowed.

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