1997 PLP 1795 (MLD)

(b) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑O.XLI, R.1 [as amended by High Court (Lahore) Notification No.577‑G, dated 15th November, 1928]‑‑‑First appeal must be accompanied with specified Form prescribed for first appeal filed before District Judge‑‑‑High. Court noted with anguish that said Form was not being appended with first appeals with the result that mistakes were committed and subsequently advantage was sought to be taken by invoking the principle that nobody should suffer because of mistake of Court‑‑‑All the District Judges working under control of High Court were directed that no first appeal should be entertained without opening sheet prescribed therefor. Muhammad Bashir Malik, Advocate. This regular first appeal is directed against the judgment and decree dated 3-10‑1995 passed by learned Civil Judge, Mankera whereby the appellants' suit for specific performance was dismissed.

2. The relevant facts are that the appellants' suit seeking to enforce agreement to sell dated 5‑2‑1989 whereby the defendant had allegedly agreed to sell the land in dispute to the appellants was dismissed by the learned trial Court because the appellants failed to produce evidence despite various opportunities given in this behalf. The suit was valued at Rs.4,00,000 i.e. the consideration amount of the contract for which the same was allegedly concluded between the parties.

3. The appellants being aggrieved of the judgment and decree filed an appeal in the Court of District Judge, Bhakkar which was entertained by the said Court for the particular reason that the value of the suit was described to be Rs.2,00,000 in the heading of the memorandum of appeal filed by the appellants. The appeal remained pending before the said Court till 12‑5‑1996 when the same was returned to the appellant as the said Court lacked pecuniary jurisdiction. It was thereafter that the appeal was filed in this Court on 29‑5‑1996 when the same had become barred by 144 days. The delay in filing the appeal was sought to be condoned on the ground that the appellants had been prosecuting the appeal with due diligence and in good faith. It was submitted that the delay was neither intentional nor wilful and that if the same is not condoned the appellants would suffer irreparable loss and injury.

4. At the hearing, the learned counsel for the appellants urged the same ground as incorporated in the application with an added ground that the learned District Judge ought not to have entertained the appeal and since the same was entertained without any objection, therefore, the appellants should not suffer because of the act of Court. We are not impressed by the argument. It is matter of record that the appellants while filing the appeal before the learned District Judge had themselves described the jurisdictional value of the suit as Rs.2,00,000 and that being so, the learned District Judge or for that matter his office did not commit any mistake in entertaining the same. Manifestly it is not a case of any error on the part of the District Judge or his office. It is also matter of record that the value of the suit has been described in the decree prepared by the lower Court and the same is stated to be Rs.4,00,

000. The appellants had known the value of the suit as the same was stated in the plaint while the lawyer filing the appeal ought to have looked into the plaint as also the decree prepared in the case. The omission on the part of the appellant as also the counsel filing the appeal, to say the least, is an act of gross negligence and the same cannot be treated unintentional. The other explanation rendered in the application that the appellants have been pursuing their remedy with due diligence and in good faith cannot also be accepted in the facts and circumstances of the case. Mere filing of appeal before the learned District Judge and the prosecution thereof cannot be said to be an act of due diligence and in good faith. Due diligence means performance of an act with care and caution which is expected of a reasonable and prudent man under the particular circumstances. The circumstances, as would be seen from the facts of the case, were to the effect that the suit had been valued by the appellants at Rs.4,00,000 and court‑fee in regard thereto was also affixed after obtaining permission from the Court below and then the same value was inserted in the decree‑sheet. In the background aforenoted it could not possibly be maintained that the insertion of value of the suit at Rs.2,00,000 in the memorandum of appeal was an act performed by a reasonable and prudent man. Needless to add that it is really not understandable as to from which source, the appellants took the value of the suit to be Rs.2,00,

000. A little care, if taken, would have disclosed to the counsel that the value of the suit was Rs.4,00,000 and for that matter he had either to scan the plaint filed in the suit? or look at the decree‑sheet. The conduct of the appellants as also that of the counsel filing the appeal was extremely negligent, therefore, we are not pursuaded to condone the delay in filing this appeal.

5. Before parting with the judgment we may point it out here that under the rules an opening form has been prescribed for the first appeal filed before the District Court. We have noticed with deep anguish that the said form is not being appended with the first appeals with the result that mistakes are committed and subsequently advantage is sought to be taken by invoking the principle that nobody should suffer because of the mistake of the Court. The practice of dispensing with the opening form prescribed for first appeals is depreciated and it is notified to all concerned that no first appeal should be entertained without the opening sheet prescribed therefor. The Deputy Registrar (Judl.) of this Court is directed to circulate this judgment to all the District Judges working under the control of this High Court for information and compliance. This appeal is dismissed being barred by limitation. A.A./M‑235/L???????????????????????????????????????????????????????????????????????? Appeal dismissed.