P L D 1993 Quetta 88 (PLP)

IFrIKHAR MUHAMMAD CHAUDHARY, J.

We have proposed to dispose of R.F.As. Nos.52,'53 of 1992 a ' nd F.R.A. No.5 of 1993 by this judgment as common question of the law is involved in all these appeals.

1. The brief facts of the case statedly are that respondent No.1 filed three separate suits against the appellants on 18-5-1987 in the Court of Civil Judge, First Class, Hub for possession, cancellation of documents and injunction in respect of the landed property, specification whereof was mentioned in the plaint. The appellants contested the suit and trial Court vide order dated 30th June, 1991, separately passed in each case, allowed the relief as was prayed for.

2. Aggrieved from the order/decree of trial Court, the appellants preferred appeals before the learned District Judge, Khuzdar which was allowed vide order/decree dated 27th August, 1992, whereby the cases were remanded to the trial Court for further. proceedings.

3. The respondent No.1 challenged the order of the District Judge, before this Court in Civil Revisions Nos. 242 to 244 of 1992 mainly on the averments that the valuation of the subject-matter of the suit-property was above the pecuniary jurisdiction of the District Judge, as such the appellate Court had passed orders without jurisdiction. The appellants on appearing in the Court conceded to the legal position mentioned hereinabove. Ultimately all the three revisions were disposed by means of judgments dated 30th November, 1992. The operative portion of the order which is common in all the revisions is reproduced below:-- "On the perusal of section 18 it is quite evident that appeal challenging decree of trial Court dated 30-6-1991 concerning subject-matter of the suit, being admittedly beyond Rupees fifty thousand, 'was not maintainable before learned District Judge, Khuzdar as rightly conceded by learned counsel for respondents Nos.1 to

5. Accordingly for the above reasons, petition is accepted. Impugned judgment and decree dated 27-8-1992 passed by learned District Judge, Khuzdar is set aside. Resultantly memo. of appeal shall be returned to respondents Nos.1 to 5 for availing such remedy as may be Dermissible under the law. Parties are left to bear their own cost." it appears that in pursuance of the directions of this Court the memo. of appeals were returned to appellants. And they presented the same on 15th December, 1992, alongwith applications under section 5/14 of the Limitation Act read with section 151, C.P.C. mentioning therein that on account of bona fide mistake appeals were wrongly riled before the District Judge, as such, the delay in filing of the appeal be condoned. The respondents opposed the application on the ground that bona fide mistake in approaching a wrong forum hardly constitute a ground for the enlargement of the time. Keeping in view the objection regarding the maintainability of the appeals on the point of limitation, we have heard the learned counsel of parties.

4. Messrs Ch. Muhammad Yousufs yakub Khan YousafZai and M.S. Rakhhshani Advocates advancing the case of appellants, contended that owing to a legal confusion the appeals, were filed before the District Judge. As two parralle . I laws, namely, Dastoprul Amal Diwani Kalat and Civil Courts Ordinance, 1962 are applicable in District Lasbella for adjudicating the civil rights and on account of uncertainty of the legal position the learned counsel appearing for the appellants under a bona fide mistake filed the appeals therefore, in the interest of justice, the delay in filing the appeals be condoned.

5. On the other hand Messrs Farooq H. Niek and Syed Ayaz Zahoor, Advocates defended the appeals on hehalf of respondent No.1 and vigorously argued that the original suits were instituted by the respondent in the Court of Civil Judge First Class who derives jurisdiction from the Civil Courts Ordinance, 1962 and there had been never any confusion amongst the litigants in instituting the proceedings on the ground that different laws were imposed in the area. Mr. Farooq H. Nick further stressed that Limitation Act had never recognized a bona fide mistake or ill-advice on behalf of counsel a strong ground for condoning the delay. So much so section 14 of the Limitation Act, is not applicable on the civil appeals as such no indulgence legally can be shown to appellants for wrongly pursuing a remedy before the District Judge, Khuzdar.

6. We have heard the learned counsel for parties and with their assistance the record of the cases had also been gone through.

7. In view of the contentions. raised by the parties' counsel there are two moot questions requiring the determination:-- (i) Whether in appeal cases the provisions of section 14 can be pressed into service for getting the benefit of the period which has' been spent in pursuing the remedy before the wrong forum. (ii) Whether a bona fide mistake or ill-advice does constitute a sufficient ground to bring the case within the compass of section 5 of the Limitation Act to condone the delay in instituting the proceedings. Firstly it is to be seen that bare perusal of section 14 of the Limitation Act manifestly makes it clear that the time spent in persuing a wrong appellate forum cannot be condoned and this section can only be pressed into service where the suit has been persued in the wrong forum and if the appeal is barred by time for the reasons mentioned above, then only section 5 of the Limitation Act can be invoked, that too when Court in the interest of justice feels that, time should be condoned, keeping in view the peculiar circumstances of the each case. In this context reference can be made to 1982 SCMR 425, 1991 SCMR 520 and 1991 SCMR 1679. In the last-mentioned case the Hon'ble Supreme Court has granted the leave to examine whether section 14 of the Limitation Act can be utilized for getting the condonation of delay in filing the appeal. Hence it is held that time spent in persuing the remedy before a forum having no jurisdiction to hear the appeal is not condonable under section 14 of the Limitation Act. It is also to be observed that the contentions raised by the appellants' counsel regarding non-filing of the appeals on account of the ' legal confusion, due to the applications of parrallel laws is inconceivable because the parties were fully represented before the, Civil Juge, who admittedly had assumed the jurisdiction in pursuance of the West Pakistan Civil Courts Ordinance, 1962 and section 18 of the Ordinance provides that appeals having the valuation exceeding Rs.50,000 both for the jurisdiction as well as payment of court-fee shall be instituted before the High Court. It is an uncontroverted fact in the instant cases that the valuation in all the suits was admittedly more than Rs.50,000 and in the revisions, previously filed by respondent No.1 the appellants conceded that the District Judge had no jurisdiction to entertain and adjudicate upon the appeals. Therefore, the argument so raised by the appellants' Advocates is not acceptable.

8. As it has been observed that section 14 of the Limitation Act cannot be. enforced in appeal proceedings therefqre, the appellants have to make out a case within the scope of section 5 of the Limitation Act, which lays down that delay in riling of the appeals can be condoned provided sufficient cause has been put forth in order to warrant indulgence on the question of limitation. In this context there is a host of case-law of the Hon'ble Supreme Court wherein it has been held time and again that bona fide mistake or ill-advice by a counsel in invoking the jurisdiction of a wrong forum never constitutes a ground for condoning the delay. Reference can be made to PLD 1983 SC 262 and 385,1984 SCMR 1068,1988 SCMR 2,1989 SCMR 1498, PLD 1991 SC 102 and PLD 1992 SC 529 and

917. Following the dictum laid down in these C Feports we are inclined to hold that bona ride mistake or ill-advice by the counsel does not constitute -sufficient ground for condoning the delay, however, the party who had suffered at the hands of counsel, had a remedy to sue his counsel for damages. As such, the plea being raised by the appellants in this behalf has not been found entertainable for condoning the delay.

9. We have also perused the applications under section 5 of the Limitation Act and failed to find the explanation of each day in filing the belated appeals. Under section 5 of the Limitation Act the plea for condoning the delay can only be looked into if the delay of each day has been calculated and explained and in absence thereof, the Court is not duty bound even to take into consideration the plea raised in the application.

10. Even otherwise, the question of limitation is not to be lightly interfered in purported exercise of jurisdiction under section 5 of Limitation Act, because it creates a valuable right in favour of the party against whom the proceedings are being instituted, thus on this score as well, we see no merits in the applications. . 11. - Mr. Farooq, H. Neik, also contended that in the Appeal No. 52 of 1992, appellants did not pay the proper court-fee before the District Judge, Khuzdar, therefore, on account of insufficient court-fee it may be deemed that no appeal was instituted before the District. Judge and in the present appeal without considering the period which was spent before the District Judge, where the' time is to be calculated from 30th June, 1991 duly. constituted appeal was not submitted, and on this score as well the said appeal becomes hopelessly barred by time and no indulgence can be shown in enlarging the time because, neither these facts find mention in the application under section 5 of the Limitation Act nor this point has been urged by the counsel appearing for appellants. Mr. Farooq N. Neik, relied on PLD 1981 Lahore 286, AIR 1931 Calcutta 333, AIR 1941 Allahabad 295 and 1980 CLC

485. When confronted with this situation, Muhammad Yousaf, Advocate of the appellants in R.F.A. No. 52/92 could not give the reply satisfactorily. It is to be observed that under Order 41, rule 1, C.P.C. the appellant besides accompanying the decree with the memo of appeal is also under obligation to affix the same amount of the court-fee which was paid before the trial Court and for non payment of requisite court-fee it would be deemed, that no appeal has been properly instituted. Thus it is held that Appeal No. 52 of 1992 is also considered hopelessly barred by time for this added reason as well.

12. Likewise Mr. Farooq H. Neik objected that the RYA. No. 53 of 1992 is also not competent because the appellants did file time-barred appeal before the District Judge. We have perused the record which reveals that order of Civil Judge dated 30th June, 1991, was challenged on 5th November, 1991, with a request to condone the delay in filing of the appeal for the reason that copies were not delivered in time. We failed to associate ourself with the contention raised by. the learned counsel for the appellants because they did move application for obtaining the requisite copies on 2nd November, 1991 after expiry of limitation period as such, appeal instituted before the District Judge hardly can be considered within time. Consequently instant appeal on this score as well is liable to be dismissed. Before parting with the judgment we would like to observe that the appellants were represented by learned Advocates before the Courts below and the engagement of an eminent lawyer presupposes that he had knowledge and command over the basic provisions of law, relevant for filing of the proceedings before the competent forums and in such view of the matter no indulgence can be shown on account of an ill-advice and bona fide mistake on the part of an Advocate, because as the maxim goes that "ignorance of law,-is no excuse". The foregoing discussion persuades us to believe that all the appeals are not maintainable on account of being barred by limitation as such, without dilating upon the merits of the case, the same are dismissed on this score alone. However, the parties are left to bear their own costs. AA./445/Q