P L D 1963 Azad J & K 38 (PLP)

ABDUL HAMID KHAN, J.‑Brief facts giving rise to this appeal may be stated as under:‑ Muhammad Ayub appellant and his brother Ghulam Mohi ud‑Din deceased had filed a suit for possession of land measuring 29 kanals 7 marlas situate in village Ankar, Tehsil Mirpur in the Court of the Sub‑Judge, Mirpur against Sain Dass, Chet Ram (now evacuees), Sajawal Khan, Sardar and Abbas Ali. It was alleged by them that they were the occupancy tenants of the land of which Sain Dass defendant No. 1 was the proprietor. It may be mentioned here that Sain Dass had got the plaintiffs ejected in the Dogra time and this ejectment was challenged by the plaintiffs in the Civil Court and a decree was passed in favour of the plaintiffs which was maintained even in appeal by the High Court. In pursuance of this decree the plaintiffs were put in possession of the land but the mutation in the revenue papers had not yet been entered and attested in the names of the plaintiffs when the War of Liberation broke out. Defendants Nos. 1 and 2 (Sain Dass and Chet Ram) migrated to India and the defendants Nos. 3 to 5 forcibly entered upon the land and ejected the plaintiffs. The plaintiffs sought their remedy in the Local Revenue Courts but failed. They, therefore, lodged a suit in the Civil Court. The defendants Nos. 3 to 5 contested the suit on the ground that they were in possession of the suit land since the Dogra time ; and that their possession was not adverse. They also pleaded that a portion of the suit land was purchased by them while the rest was in their possession as occupancy tenants. The trial Court framed 5 issues in the case and started recording the evidence of the parties but after the statement of only one witness of the plaintiffs had been recorded when on 8‑12‑1959 an application on behalf of Muhammad Hussain and others i.e., the sons, daughters and widow of Ghulam Mohi‑ud‑Din plaintiff was made praying that as Ghulam Mohi‑ud‑Din was dead they should be impleaded as plaintiffs in place of Ghulam Mohi ud‑Din. The trial Court recorded the statement of Muhammad Hussain one of the applicants and learnt from it that the death of Ghulam Mohi‑ud‑Din had taken place a year‑and‑a‑half before the application. On this, objection was taken by the defendants to the effect that the application was barred by time and as such the entire suit had abated. The trial Court after hearing the arguments held that the entire suit had abated on account of the default of the plaintiffs in bringing on record the legal representatives of Ghulam Mohi‑ud‑din in time. As against this order of the trial Court dated 28‑1‑1961 an appeal was preferred by the plaintiffs‑appellants in the Court of the Custodian on 24‑2‑1961. This appeal remained pending in that Court up to 19‑4‑1961 when the learned counsel for the appellants, who had presented the appeal in the Court of the Custodian realised his mistake and prayed for the return of the memorandum of appeal which was accordingly returned to him and he filed the appeal in the Court of the District Judge. A preliminary objection was raised by the respondents before the District Judge that the appeal was filed beyond the period of limitation prescribed for it and was, therefore, time‑barred. The District Judge, by order dated 9‑11‑61 held that the filing of the appeal in the Court of the Custodian did not appear to him to be the result of a genuine mistake but was obviously a blunder on the part of the counsel for the appellants. He, therefore, held the appeal time‑barred and dismissed the same. The appellants have now come to this Court in appeal against this order of the District Judge. The point involved is whether the appellants in this case were entitled to the benefit of section 5 of the Limitation Act. The learned counsel on behalf of the appellants contends that it is a case in which benefit of section 5 should have been extended because he was mis‑led by the names of Sain Das and Chet Ram (evacuees) appearing in the title of the suit to think that it was a case which had been decided by the Deputy Custodian and in which appeal lay to the Custodian. He has cited A I R 1917 P C 156 and P L D 1960 Lah. 427 in support of his contention. In A I R 1917 P C 156 it was held that if a party bona fide presented an application for review of judgment within the ordinary period limited for appeal; the time occupied by Court in disposing of such application would not be reckoned among the days limited for appeal, but would be added thereto and a memorandum of appeal represented within such extended period will be received as presented within time. In P L D 1960 Lah. 427, it was laid down that a litigant in order to be diligent can do no better than to engage a senior lawyer in his case. The lawyers, however, senior and eminent they may be, are after all human and for that reason fallible. It is the possibility of the occasional error in the case of the litigants and their counsel that is guarded against by section 14 and other similar sections of the Limitation Act. It will be totally wrong to a record a mistake committed by an eminent lawyer, in instituting the suit in a wrong Court, as a matter for which a litigant should be punished, time should be allowed in such cases. As against these rulings the learned counsel for the respondents has quoted A I R 1933 Lah. 568 wherein it was held that where an appellant preferred an appeal to the District Court instead of preferring it to the High Court which he did after the stipulated period of limitation and prayed for extension of time on the ground that he had consulted the counsel who had presented the memorandum to the District Judge, they a was bona fide mistake and hence limitation could not be extended. The learned counsel for the respondent has also quoted another authority P L D 1959 Azad J & K 55 wherein it was held that :‑ "According to section 3, Azad Jammu and Kashmir State Courts and Laws Code Act, 1949, it is impracticable for the Punjab Courts Act to remain in force when it is altogether inconsistent with the provisions of the later Azad Jammu and Kashmir Act. Therefore, there should not b: any misunder standing about the forum of appeal in a suit valued at more than Rs. 2,

500. Thus, the appellant could not be said to have been prosecuting his appeal with due diligence in the Court of the District Judge believing bona fide that the appeal lay there." It cannot be denied that section 5 of the Limitation Act empowers a Court to admit an appeal after the period of limitation prescribed therefore when the appellant satisfies the Court that he had some sufficient cause for not preferring the appeal within such period. Every case is to be judged on its own merits, and as laid down in section 5 of the Limitation Act if an appellant satisfies the Court that there were good and sufficient reasons for not preferring the appeal in time the Court could admit the appeal and treat it as within time. In the present case the reasons advanced by the learned counsel for the appellant appear to us to be sound. The names of the Hindus appear in the title of the suit and as everybody knows, here in Azad Jammu and Kashmir Sub‑Judges have been empowered to try case: in which the interests of evacuees are involved, as Deputy Custodians. An appeal from their orders lies to the Custodian. We have narrated the facts in this case at some length intentionally to show that there was a possibility of a Counsel being misled to think that the judgment in the case was pronounced by the Sub‑Judge in his capacity as Deputy Custodian and hence the mistake that the appeal was filed in the Court of the Custodian. In our opinion, it is a fit case in which benefit of section 5 of the Limitation Act should have been extended by the District Judge. This case can be easily differentiated from the case quoted as A I R 1933 Lah.

568. In that case the final decree was passed for a sum of Rs. 10,042‑6‑6 and the law was that in an account suit when the value of the amount decreed was over Rs. 10,000 the appeal lay to the High Court. The appellant took shelter behind the plea that he had consulted his counsel who presented the memorandum of appeal to the District Judge. It was remarked by their Lordships that the High Court had always held that a legal adviser's mistake to justify extension must be a bona fide one, i.e., it must be done with due care and attention and that as in this case the law was clear, therefore, there was no bona fide mistake. In the present case as already remarked the names of the evacuees appearing in the title of the suit had misled the counsel and then the trial Court was vested with powers both as a Sub‑Judge and as a Deputy Custodian and hence the explanation offered was a good one. The other authority P L D 1959 Azad J & K 55 is also not applicable to the present case. In that case the appeal lay to the High Court but was wrongly filed in the Court of the District Judge and when the memorandum of appeal was returned back to the appellant on 7‑10‑57 by the District Judge to be presented to the proper Court the appeal was not filed in the High Court soon after but was filed as late as 12‑11‑1957 for which no satisfactory explanation was given. We, therefore, agreeing with the view expressed in P L D 1960 Lah. 427 hold that the District Judge was wrong in not extending the benefit of section 5 to the appeal. We, therefore, accept the appeal, set aside the judgment of the District Judge, dated 9‑11‑1961 with the direction that the District Judge should treat the appeal as within time and decide the same on merits after hearing the parties. K. B. A./A. H. Appeal accepted.