1996 PLP 507 (PLD)

being R.F.A. No.47 of 1981 which was heard without any objection as to it competency the appeal was accepted by a Division Bench of this Court on

3. The decision of this Court was challenged by the respondent by filing Civil Appeal No.25 of 1983 which was allowed by the Hon'ble Supreme Court on 2‑5‑1987 on the ground that as the valuation for the purposes of court‑fee and jurisdiction had been fixed ' in the plaint at Rs.24,300 the appeal should have' been filed in the District Court and as such the appeal filed by the petitioner in the High Court (R.F.A. No.47 of 1981) was not competent. As a consequence, the Supreme Court of Pakistan after setting aside the judgment and decree of this Court directed that the memorandum of appeal be returned to the present petitioner for presenting it before the appropriate Court. .

4. Pursuant to ‑that order the memorandum was returned. to the petitioner who presented it before the District Court on 31‑5‑1987 alongwith an application. under sections 5 and 14 of Limitation Act, 1908, seeking exclusion for time spent by him in prosecuting the appeal before this Court, where it had been filed under a bona fide mistaken advice and with due indulgence. This application was rejected by the learned Additional District Judge on 6‑4‑1988 and the appeal was dismissed being barred by time.

5. In support of this petition Mr. Muhammad Yaqub Sindhu, Advocate has contended that R.F.A., No.47 of 1981 was filed by the petitioner under a bona fide mistaken advice rendeied by his counsel that the appeal would lie before this Court and as such the petitioner is entitled to the exclusion of time spent by him in prosecuting the ‑matter before the High Court. He has relied upon pronouncement of Supreme Court of Pakistan in She'rin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 as also on an earlier judgment of the Supreme Court in Nazar Muhammad and others v. Mst. Shahzada Begum and another PLD 1974 SC 22.

6. In reply Mr. Ata‑ul‑Mohsin Lak, learned counsel representing the respondent argued that as in the plaint the petitioner himself had fixed the valuation for the purposes of jurisdiction at Rs.24,300 question of having bona fide mistaken impression does not arise and that the first appeal was. filed in this Court without any jurisdiction and the petitioner having not acted bona fidely is not entitled to any indulgence. He pointed out * that while filing the first appeal before this Court the petitioner , had fixed the valuation of the appeal at Rs.80,000 without any reason or justification. Learned counsel further mentioned that in any case, at the time when the appeal Was presented before the ‑High Court, the limitation for filing it in District Court had expired and consequently also even if the period spent in prosecuting the appeal before this Court is excluded the appeal would be barred by 11 days. Reliance has ‑been placed by the learned counsel on Islam Din v. Allah Nawaz and others 1988 SCMR 2, Mst. Mahmooda Begum and others v: Major Muhammad Ishaq and others 1984 SCMR 890, Abdul Ghani v. Mst. Musarrat Rehana 1985 C 2529 and Abdul Ghani v. Ghularn Sarwar PLD 1977 SC 102.

7. Having heard the learned counsel for parties at length and perused the record as also going through the. case‑law I am of the view that in the circumstances of the case the learned Additional District‑Judge was clearly in error in refusing to condone the delay in filing the appeal.. The first. thing to be noted in this behalf is that at the time when the appeal was filed in this Court no objection was raised by the office. Not only that but, even subsequently at the time of hearing the respondent too did not object to the maintainability of the A appeal but the two learned Judges of this Court heard the appeal and accepted it on inerits. 'It was only for the first time before the Honourable Supreme Court that an objection to the competency of the first appeal before this Court was raised by the respondent which was allowed. In these circumstances it cannot be said that the appellant by. filing the appeal before this Court had acted mala fidely or with contumacy. 8 .It has been pointed out by the learned counsel for the petitioner on an ‑objection raised by the respondent the trial Court while deciding the suit had held that the suit was not properly valued for the purpose of court‑fee and jurisdiction. In these circumstances if the learned counsel representing the respondent has fixed the valuation of the appeal at Rs.80,000 that is the price at which according to the petitioner the respondent hag purchased the property the learned counsel cannot be said to have acted in contumacious disregard of the law.

9. The question as to whether the mistaken advice rendered by a counsel constitutes sufficient cause for condonation of delay for such cause has been subject‑matter of dispute before various Courts for a long period. Earlier the trend of authorities was that the mistaken advice of a counsel per se is not a ground for seeking condonation of delay, unless it is shown that the counsel has acted with the diligence and was misled into filing the appeal before the wrong forum on account of some confusion in law; The situation appears to have been dramatically changed by the judgment of the Supreme Court in Sherin's case supra where the Hon,'ble Supreme Court has laid down that if the litigant engages a counsel who commits a mistake due to carelessness by filing the appeal before the wrong forum which is not attributed to any conduct of the parties themselves the client cannot be penalised. The following observation in Sherin's case was instructive and may be reproduced with advantage: "In the present case record showed that out of five appellants four were utterly illiterate. 'This was inferable from the factum of thumb impressions put'by them on the documents forming part of the trial Court's file. Fifth appellant was not an educated person and presumably could only‑write his name. In our system of law, what a litigant placed in the situation, as the appellants were, had to do for dress of his grievance, through a Court of law, was to engage a counsel. This the appellants did. ‑It seems that they did not make contribution, in the institution of the appeal in the District Court. There was no allegation that they stood to gain thereby or were guilty of any mala fide conduct. The filing of appeal in the District Court, was entirely attributed to the carelessness of the appellant's counsel. He represented them in the trial Court, and was not unaware of the amount of the court‑fee paid on the plaint by the respondents, on the objection of the appellants. which determined the forum of appeal. He, also appeared for the appellants in the High Court. It seems that he was a Senior Advocate. Of late, unfortunately there has been a tendency of some decline in the proficiency of the members of this noble profession, practising at the Bar. It is high time that the Bar Councils in the country should take notice of it and adopt measure to arrest this tendency. If the law has to march with the changing time, some restraint. needs to be exhibited by the Courts, in imposing too large a burden on a litigant, for the lapses of his counsel. The position in the present case appears to be the same as the sole appellant before this Court in RFA. No. 47 of 1981 ‑an illiterate person. He engaged Mr.C.A. Rehman who is a senior counsel practising on the civil side. Due to his mistaken advice the appeal had been filed before the High Court and the appellant paid the court‑fee on valuation of the appeal. The petitioners had not derived any benefit out of this mistake but on the other hand they appear to suffer a disadvantage inasmuch. as if the appeal had been valued at Rs.24,300, which was found by the Supreme Court as correct value, no court‑fee was required to be paid on the appeal at all in view of exemption to pay court‑fee on valuation of less than Rs.25,000.

10. Learned counsel for the respondent has however, tried to distinguish Sherin's case on the ground that in that case at the time of filing the appeal wrongly before the District Court the limitation for filing it in this Court has not expired. While in the present case when the appeal was presented in this Court but the appeal if filed before the * District Court would be barred by I I days. This distinction with respect is specious and hardly makes any difference. As the appellant was advised by the learned counsel that the appeal lay in the High Court he was well within his rights to assume that it could be filed within 90 days which is the limitation for filing appeal in the High Court. The rule laid down in Sherin's case is clearly applicable. In view of what has been stated above, this revision petition is allowed. The judgment and decree of the District Judge, Gujranwala, is set aside and the delay in filing of appeal before him is condoned. With the result that the appeal of the petitioner against the decree of the trial Court shall be deemed to be pending and shall be decided afresh. A.A./H‑4/L 'No order as to costs. Case remanded