2024 SCMR 107
Limitation.
Choosing or opting the wrong forum to present an appeal---Duty of Court and its staff---Scope---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---In the present case as far as the defect of choosing or opting the wrong forum to present the appeals was concerned, the circumstances reveal that the petitioner was not solely responsible, rather it was due to the inadvertence of the Appellate Court 's 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---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---High Court was required to consider the fault committed by the Appellate Court on account of which the petitioner had been made to suffer and whether the benefit of the principle "actus curiae neminem gravabit" should be extended or not, and whether the petitioner had 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, 1908---Petitioner had been pursuing the matter diligently and his application for condonation of delay was dismissed without any convincing justification---Petitions for leave to appeal were converted into appeals and allowed, impugned judgment was set-aside and the matter was remanded back to the High Court . FAQIR MUHAMMAD vs KHURSHEED BIBI
2024 SCMR 107
Appeal from original decree---Examination of memo of appeal and supporting documents---Jurisdiction, question of---Duty of Court and its staff---Scope---Order XLI, Rules 1, 3 & 9 of C.P.C. emphasize 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 to 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 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.
FAQIR MUHAMMAD vs KHURSHEED BIBI
2024 SCMR 107
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