JUDGMENT SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

HYDERABAD.

 

Present:

1. Mr. Justice Sajjad Ali Shah.

                                 2. Mr. Justice Muhammad Ali Mazhar.

 

C.P.No.D- 188 of 2006

 

 

Haji Ahmed Nawaz through L.Rs..        .           .           .           .           .Petitioners.

 

                                                        Versus.

 

Abdul Shakoor and others.       .           .           .           .           .           .Respondents.

 

 

Petitioners:                                                                    Through Mr. Ejaz Ali Hakro, Advocate.

 

Respondents-1 to 7:                                                     Through Mr. Naimatullah Soomro, Advocate.

 

Respondents-8 & 9:                                                     Through Mr. Anwar H. Ansari, State Counsel. 

 

Date of hearing:                                                            22.3.2011

 

Date of decision:                                                           22.3.2011

:                                                                                 

 

                                                            J U D G M E N T.

 

 

SAJJAD ALI SHAH,J:- Petitioners have called in question order dated 22nd February 2006 passed by IIIrd Additional District Judge, Nawabshah in Civil Revision No.4 of 2004 whereby the learned Judge while dismissing the revision affirmed the order of the trial Court whereby the Petitioners application U/s 14 of the Limitation Act was dismissed.

2.         Briefly, the Petitioners on 19th August 1999 filed F.C.Suit No.77 of 1999 seeking specific performance of an agreement before the Senior Civil Judge, Shahdadpur District Sanghar. The Plaintiff in Para-1 of the plaint has described the suit property by asserting to be situated within the territorial jurisdiction of Taluka Shahdadpur District Sanghar. The defendants accepted this position and jurisdiction of the Senior Civil Judge, Shahdadpur. The Court at Shahdadpur framed the issues on 24.1.2000 and recorded the evidence of the Plaintiff and his witnesses. In 2004, the concerned Mukhtiarkar informed the learned Senior Civil Judge, Shahdadpur that vide notification dated 14th July 1992, (hereinafter referred to as said notification) certain portion of Shahdadpur of District Sanghar has been transferred to Sakrand District Nawabshah and therefore, he is not in possession of the record pertaining to the suit land as now it falls within the territorial limits of Taluka Sakrand District Nawabshah. On the basis of such statement, the trial Court on 24th May 2004 returned the plaint for presenting it before the Court having jurisdiction. The Petitioners consequently on 25th May 2004 i.e. next day, presented the plaint before the Senior Civil Judge, Nawabshah alongwith an application U/s 14 of Limitation Act seeking exclusion of time spent in pursuing the legal remedy bonafidely before a Court without jurisdiction. The learned trial Court on 30.5.2004 admitted the suit and after hearing the parties vide its order dated 13th October 2004 dismissed the application U/s 14 of the Limitation Act. The Petitioners being aggrieved filed a revision against the said order before IIIrd Additional District Judge, Nawabshah who through impugned order affirmed the order of the trial Court by dismissing the revision.

3.         Mr. Ejaz Ali Hakro, learned Counsel appearing for the Petitioners contends that the fact of issuance of notification transferring certain portion of Taluka Shahdadpur District Sanghar to Taluka Sakrand District Nawabshah had first time came to the notice of the petitioners on 13.4.2004 when the Mukhtiarkar Shahdadpur placed such information before the Senior Civil Judge, Shahdadpur and therefore, the Petitioners were entitled to exclusion of time consumed in pursuing the remedy before a Court having no jurisdiction. Learned Counsel further contended that now it has transpired that “said notification” was challenged before this Court in C.P.No.D-390 of 1993 by some one and a Division Bench of this Court vide its order dated 15.4.1993 suspended its operation and such suspension continued till 06th December 2000 when the said petition was dismissed. Learned Counsel further pointed out that in consequent to the said notification, the record of the land was transferred by the concerned Mukhtiarkar Shahdadpur to Sakrand on 27th January 2001 as evident from the letter No.Sett/66 of 2001 at page 207 therefore, the Court at Shahdadpur in fact had the jurisdiction when the Petitioners filed suit on 19th August 1999. Learned Counsel in support of his contentions that in the circumstances, the Petitioners are entitled to exclusion of time, has placed reliance on the judgment of this Court in the case of Mst. Umerunnisa Vs. Fateh Ali and 2 others (PLD 1971 Karachi 553) and the judgment of Apex Court in the case of Raja Muhammad Ayub and others Vs. Muhammad Ijaz Khan and others (1982 SCMR 1105).

4.         On the other hand Mr. Naimatullah Soomro, learned Counsel appearing for the Respondents contends that ignorance of law is no excuse and the Petitioners plea of want of knowledge about the said notification cannot be accepted and consequently on the date when the Petitioners filed suit for specific performance, the Court at Shahdadpur had no jurisdiction at all and the concession made by defendants/Respondents acceeding to the jurisdiction of Shahdadpur is of no consequences. It was next contended that the Petitioners before presenting the plaint at Nawabshah ought to have amended it by incorporating the grounds on the basis whereof the Petitioners were seeking exclusion of time and not by way of an application U/s 14 of Limitation Act which even otherwise is incompetent. It was further contended that constitutional petition cannot be a substitute of second revision as there were concurrent findings against the Petitioner which cannot be upset in the constitutional jurisdiction of this Court. It was lastly contended that plea now raised was never raised before the trial Court and the appellate Court therefore, such plea cannot be considered. Counsel has placed reliance on the judgments of Apex Court in the case of Ghulam Nabi and 5 others Vs. Rashid (PLD 2000 Supreme Court 63) and Muhammad Khan Vs. Salehun alias Saleh Muhammad (2010 SCMR 36) as according to Mr. Soomro in order to prove due diligence, evidence is required.

5.         Learned State Counsel does not support the impugned orders.

6.         We have heard the learned Counsel for respective parties and have perused the record with their able assistance and case law cited at bar.

7.         The facts as reproduced above are not disputed. The questions which require adjudication are as to whether in the given circumstances, the Petitioner was entitled to exclusion of time in terms of Section 14 of the Limitation Act on the ground that at the relevant time Court at Shahdadpur had no jurisdiction and secondly as to whether the findings of the trial Court can be termed concurrent and cannot be interfered while exercising the writ jurisdiction. Admittedly, though the said notification was issued on 14th July 1992 but it remained suspended till 16th December 2000 and consequently, the Senior Civil Judge at Shahdadpur continued to exercise jurisdiction on the portion of lands which through “said notification” were transferred to Taluka Sakrand District Nawabshah and therefore, in our opinion the filing of suit at Shahdadpur was not without jurisdiction at the relevant point of time. We are of the firm view that once the suit is filed before a competent Court having territorial as well as pecuniary jurisdiction then subsequent change cannot adversely effect the rights of parties on account of administrative change abridging the territorial or pecuniary jurisdiction specially when the Petitioners were vigilant enough to present the plaint on the very next day of its return. However, since the material disclosing suspension of “said notification” was not available before the trial Court which entailed such consequences.

8.         It further appears to be an admitted position that such fact of transfer of jurisdiction was brought to the notice of the Court for the first time by concerned Mukhtiarkar on 13th April 2004 and whereafter the trial Court had returned the plaint to the Petitioners after almost five years of its presentation/admission vide order dated 22nd May 2004 and handed over the same to the Petitioner on 24th May 2004 which was presented before the Court having territorial jurisdiction on the very next day. We are further of the view that it was the equal responsibility of the Court to have entertained the suit after satisfying itself as to its pecuniary and territorial jurisdiction as it is not the case where the plaintiff in the plaint has ascribed wrong address of the parties or property on the contrary admission note of the Court at Shahdadpur dated 19.8.1999 reads as follows:-

“1.That the suit is in proper form.

2. That the suit is properly valued and stamped.

3. That this Court has jurisdiction to entertain the same.”

9.         In these circumstances to hold the Petitioner was negligent or not entitled to exclusion of time is not warranted at all. The Apex Court in the case of Raja Muhammad Ayub and others (Supra) where notification conferring jurisdiction was not traceable leading to filing of Revision Application before an incompetent forum, held it to be a bonafide mistake entitling the applicant to exclusion of time in terms of Section 14 of Limitation Act. In the instant case, admittedly the “said notification” was not in the knowledge of Petitioners, Respondents or even the Court and rightly so as the “said notification” remained extinct due to its suspension, and the trial Court while admitting the suit rightly averted its jurisdiction and held the proceedings competently and consequently the trial Court instead of returning the plaint should have given the Petitioner similar treatment which could be given due to change of jurisdiction during pendency of proceedings. As to the contention of Mr. Soomro, though this Court while exercising Constitutional jurisdiction normally does not interfere with concurrent findings of facts recorded by the Courts below or takes another view which appears to be more appropriate. However, in cases where the findings of the Courts below are perverse or suffer from non-reading or misreading of evidence the exercise of such power is established.

10.       As to the second plea of Mr. Soomro that the Petitioner cannot be allowed to raise a new plea at this juncture, suffice it to observe that a legal plea can be raised at any stage of the proceedings.

11.       In view of what has been discussed above, we allow this petition as prayed; set aside the order of revisional as well as original Court. Since we have already held that the institution of suit at Shahdadpur was not without jurisdiction therefore we direct the Senior Civil Judge at Shahdadpur to transfer the proceedings/file to the Court of Senior Civil Judge 0at Nawabshah who would start the proceedings from the stage where the proceedings were terminated and would decide the suit on merits within three months and report compliance to the Additional Registrar of this Court. Let this judgment be communicated to both the Courts through fax to ensure compliance. 

                     

                                                                                                                       

 

                                                                                                            JUDGE.

 

JUDGE.