1995 PLP 584 (SCMR)

MUHAMMAD AFZAL LONE, J.‑‑‑The facts are that the respondent sued the appellants for declaration and permanent injunction. In the plaint an alternate relief for possession was also prayed for. The suit was, however, valued for the purposes of court‑fee and jurisdiction at Rs.200 only on which court‑fee Rs.15 was paid. On an objection raised by the appellants that the plaint was deficiently stamped, the learned trial Court appointed a Local Commissioner for assessment of the market value of the property which was estimated by him at Rs.1,90,

680. On the directions of the learned trial Court the respondents made good the deficiency in the court‑fee and provided court‑fee stamp paper of the value of Rs.3,

000. The suit was decreed in their favour on 21‑2‑1984.

2. The appellants preferred an appeal in the Court of the District Judge; which was admitted to regular hearing on 21‑3‑1984, but the memorandum of appeal was returned to them on 1‑12‑1985, for presenting the same in the High Court, as the appeal was found beyond the pecuniary jurisdiction of the District Judge. It was re‑filed by them in the High Court on 1.5‑12‑1985 and admitted to regular hearing on 14‑1‑1986. The delay in filing the appeal was condoned subject to all just exceptions. However, when the appeal was ultimately heard the respondents' objection was upheld and the High Court took the view that there was no good ground to condone the delay and vide judgment dated 26‑6‑1989 dismissed the appeal as barred by time. This judgment is under challenge before us.

3. Leave to appeal was granted to examine: "What should be the standard of care and diligence required of appellants when preferring their appeals and whether any duty is cast on the Court officials entertaining the appeals to record objections as regards defect of jurisdiction etc., and, if so, within what period of time."

4. The appellants' case is that they entrusted the case to their learned counsel, who after completion of the file, instituted the same in the Court of the learned District Judge; that the appellants themselves were not posted with the knowledge of the provisions of law as to the pecuniary jurisdiction of the District Judge to entertain the appeal; and they wholly depended on their counsel. The delay has been thus, sought to be excused on the plea that the appeal was instituted in the District Court on the mistaken advice of the counsel. In order to plead that the latter was not negligent, it has been asserted that the value of the suit for the purposes of the court‑fee and jurisdiction was neither incorporated in the decree sheet nor explicity shown in the judgment of the trial Court. Conversely, the learned counsel for the respondents has dubbed it a case of gross negligence on the part of the appellants and their counsel, and added that the mistaken advice of the counsel cannot furnish a good ground for condonation of delay.

5. Diligence is a state of human conduct. What should be the standard for assessing the behaviour of an appellant to style him as diligent. Because of fluidity of the notion of diligence, it is difficult to set up a precise yardstick. Whether or not litigant has acted diligently and with care, would differ from case to case. Speaking broadly, a person may be said to have acted diligently, when he has informed himself of all relevant factors, taken all obvious steps and precautions, characterized by a degree of effort, as in a given situation, a reasonable person would do. But, the epithet of "reasonable", opens wide the measure of‑application of this yardstick, on the factual plane, for the word "reasonable" is not susceptible of any precise definition. Etymologically, it signifies according to reason, which expression itself is open to difference of opinion. Whether or ‑not a person has acted diligently, in ultimate analysis, would depend on the circumstances of each case and cannot be determined on the foundation of any judicial syllogism.

6. The criterion of "due diligence" for enlargement of time is prescribed by section 14 of the Limitation Act, which upon its terms applies only to the suits and applications and not to the appeals. On the other hand section 5 is applicable to the appeals but it does not apply to suits. The question of condonation of delay, therefore, has to be examined on the basis of section 5 and not section 14 of the Limitation Act. Not unoften, while examining the question of condonation of delay, in filing the appeal, the Courts have been invoking the principles underlying section 14 of the Act. The High Court has declined to condone the delay entirely on the touchstone of section

14. It is, however, to be remembered that expression "due diligence" and "good faith" appearing in section 14 do not figure in section

5. The condition prescribed in the latter section for its applicability is "sufficient cause" but what is sufficient cause is not capable of connotation, with exactitude and would differ from case to case. We may observe that filing of appeal in a wrong Court on account of mistaken advice tendered by the counsel canvassed on behalf of the appellants for condonation of delay by itself would not attract section 5 but when the litigant and the counsel have acted with due care and caution and their conduct does not smack of negligence, the institution of the appeal in the wrong forum may constitute a "sufficient case" within the meaning of section 5 for condonation of the delay.

7. From the perusal of the record we find that appellants Nos.l, 2, 4 and 5 are utterly illiterate. This is inferable from the factum of thumb‑impressions put by them on the documents forming part of the trial Courts' file Appellant No.3 is not an educated person and presumably can only write his name. In our system of law, what a litigant, placed in the situation, as the appellants were, has to do for redress of his grievance, through a Court of law, is to engage a counsel. This the appellants did. It seems 'to us that they did not make contribution, in the institution of the appeal in the District Court. There is no allegation that they stood to gain thereby or were guilty of any mala fide conduct. The filing of appeal in the District Court, is entirely attributable to the carelessness of the appellants' 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 is a Senior Advocate. We may say, and say so with respect that 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 lime, some restraint needs to be exhibited by the Courts, in imposing too large a burden on a litigant, for the lapses of his counsel.

8. We now advert to the other limb of the leave grant order. It is discernible from the record that the learned Senior Civil Judge announced the judgment on 21‑2‑1984. The appellants applied for the copy of the judgment and decree on 28‑2‑1984, which were prepared and delivered to them on the same day. The memorandum of appeal was presented to the Clerk of Court on 20‑3‑1984, on which he recorded the following note:‑‑ "This is a civil appeal, against the judgment of the lower Court, alongwith attested copy of the judgment of the Court concerned decree‑sheet as well as the photostat copy of the Settlement Office, Power‑of‑Attorney presented by‑Clerk of Shah Jahan, Advocate. To be registered and to put in Court for orders." The appeal was enlisted for hearing before the learned District Judge, Swat, on the next day, and after preliminary hearing admitted to regular hearing and direction given for issuance of notice to the opposite‑party. The record indicates that the appeal thereafter came up for hearing before the learned District Judge on 28‑4‑1984, 2‑6‑1984, 8‑11‑1984, 10‑1‑1985, 24‑1‑1985, 5‑3‑1985, 24‑3‑1985, 18‑5‑1985, 2‑6‑1985, 2‑10‑1985 and then on 21‑11‑1985, but was adjourned for one reason or another. During this interlude the appellants also moved an application for grant of permission to amend the written statement. On the last date of hearing the arguments on the application aforesaid were heard and the learned counsel for the respondents raised an objection as to the jurisdiction of the District Judge to hear the appeal. The case was adjourned to 3d‑11‑1985 to enable the parties to address the Court on that issue. The arguments were heard on that date and on 1‑12‑1985 the learned District Judge passed the order to return the memorandum of appeal to the appellants for presenting the same in the proper Court. As already stated the latter filed the appeal in the High Court on 5‑12‑1985. Evidently, the learned Ist Appellate Court held up the appeal for a period of over 10 months in discovering that it had no jurisdiction and that the appeal should have been filed in the High Court. The appeal instituted in the District Court was well within time. The period of limitation for filing the appeal in the High Court is 90 days. It is important to note that when the appeal was instituted in the District Court a period of more than two months was available to the appellants for filing the same in the High Court. Had the learned District Judge applied his judicial mind to the record before him; attended to the value of the appeal for jurisdictional purpose and returned the memorandum of appeal to the appellant, without undue delay, he could have easily re‑filed it in the High Court within the period of limitation.

9. The Peshawar High Court was established under Paragraph 3 of the High Courts (Establishment) Order, 1970 after the dismemberment of the One Unit and was conferred the same jurisdiction, powers and authority as exercised by the High Court of West Pakistan. The Rules and Orders of the High Court of Judicature at Lahore, which were applicable to the High Court of West Pakistan, are followed by the Peshawar High Court. For ascertaining the duty of the Court officials in entertaining an appeal, reference may be made to Rule 5 of Chapter 1‑B and Rule 5 of Chapter 14‑B, both of Volume I of the Rules and Orders of the High Court, which are reproduced below:‑‑ "It shall be the duty of the Clerks of Court to District and Sessions Judges, Senior Sub‑Judges and fudges of the Courts of Small Causes and Readers to all other subordinate Judges to see that appeals, plaints and petitions, etc., received in the Courts, to which they are attached, are properly stamped. When they are in doubt what court fee is due on any document, it shall be their duty to refer the matter to the Presiding Officer for orders. These officials are primarily responsible for any loss of revenue caused to Government by insufficiently stamped documents having been received owing to their neglect, but the ultimate responsibility for the loss lies on the Judge of the Court whose duty it is to look into such matters either when the plaints are instituted or when the plaints came up for hearing before him:' "In District Courts, the usual practice is for the Clerk of the Court to receive, in the first instance, the memorandum of appeal. There is no objection to this practice, which is a convenient one for both the Court and suitors. It must, however, be distinctly remembered that the only duty, which can legally be delegated to the Clerk of the Court, is to receive the memorandum of appeal and note thereon the date of its receipt. The order as to its admission or rejection can be passed only by the Court itself." The rules clearly indicate that so far as the jurisdictional side is concerned, it is none of the functions of the Court officials to examine the memorandum of appeal from that angle. It is the sole responsibility of the Presiding Officer of the Court, to pass an order admitting or rejecting the appeal.

10. The next question which requires our consideration is, that was it obligatory for the learned District Judge to have noticed the value of the appeal from the point of view of pecuniary jurisdiction when he admitted it to regular hearing or soon thereafter; returned the memorandum of appeal to the appellants, so that it could be filed by them in the High Court without delay. This would call for the examination of the nature of provisions under which the power of returning the memorandum of appeal to an appellant, is exercised by the Appellate Court. We find that so far as the plaint is concerned, if the suit is instituted in the Court which has no jurisdiction to hear it, undoubtedly under Order VII, Rule 10, Code of Civil Procedure, the Court is required to return it to the plaintiff to present it to the Court in which the suit should have been filed. There is, however, no provision in the Code of Civil Procedure, analogous to Order VII, Rule 10, directly applicable to the Appellate Court. Order XLI, C.P.C. which deals with appeal from the original decree does not embody any such provision. The issue whether the provisions of Order VII, Rule 10, which decidedly upon its language apply to the trial Court, can be extended to the Appellate Court required examination. In this respect it shall not be inept to make reference to section 107, C.P.C., bearing the heading "powers of the appellate Court" which is reproduced below:‑‑ "Powers of Appellate Court.‑‑(1). Subject to such conditions and limitations as may be prescribed an Appellate Court shall have power:‑‑ (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein."

11. A point arises whether in view of the provisions of subsection (2) of section 107, Order VII, Rule 10, can be extended to the Appellate Court, to authorize it to return the memorandum of appeal to the appellant for its institution before the Court, having the jurisdiction to hear the same. Somewhat, similar situation arose before this Court in the case of Siddique Khan v. Abdul Shakoor Khan (PLD 1984 SC 289). In that case the controversy requiring resolution was that could Order VII, rule 11, which ordains rejection of the plaint for deficiency of court‑fee, by virtue of section 107(2), be applied to the Appellate Court. After a fairly extensive review of the case‑law on the subject, one of us (Muhammad Afzal Zullah, C.J) took the view that: "There is nothing in the language of section 107 to suggest that it made any specific provision of the C.P.C. in its terms, applicable to appeals. Subsection (1) thereof no doubt relates to certain powers and functions of an appellate Court which are spelled out in Order XLI, C.P.C. also (see Order XLI, rules 4, 20, 23, 23‑A, 24, 25, 27, 28 and 33); but that does not mean that for this reason the other powers and duties of the trial Court not so easily relatable to specific orders/rules of C.P.C. are not applicable to the appellate Court. Subsection (2) of section 107 would, if that there were so become by any large, redundant. Similar conclusion would be reached when examining whether the provisions specifically made for appeals in Order XLI or elsewhere (other than section 107) furnish complete procedure for the appeals. The answer is in the negative. But for section 107 particularly subsection (2) thereof the appellate Court would not be able to process the appeal proceedings to the stage of completion for hearing Order XLI, C.P.C. has not provided for all eventualities. Order VII, rule 11(b) and (c) amongst others by virtue of section 107(2) fill the gaps of procedure which is not directly provided for the appeals in Order XLI, C.P.C. Thus, in the relevant context section 107 without making any particular reference to a particular stage of appeal or a document therein, is applicable to appeal proceedings. The argument that the omission of the phrase `memorandum of appeal' from section 107(2) supports the plea that in term it would not apply to appeal and that it is applicable thus only to `plaint', is without any support from the point of view of logic or practice. It is, therefore, obvious that section 107(2) is also applicable to memorandum of appeal."

"Even on general consideration it was held in FA. Khan v. Government of Pakistan (PLD 1964 SC 520) and the Province of East Pakistan v. Muhammad Hussain Mian (PLD 1965 SC 1) that the original and the appeal proceedings are steps in reality in one cause and process. And when appeal is filed the original matter becomes sub judice and is reheard by the appellate Court, which does not act merely as a Court of error. That being so, it will not be correct to say that the `plaint' and `memorandum of appeal' are such documents that they cannot at all be treated at par in procedural respects in accordance with the enabling and very wide provision in that behalf made in section 107(2), C.P.C. Accordingly there is no justification for making an exception on the object under discussion."

12. The provisions of Order VII, Rule 10 are mandatory and when the Court has no jurisdiction to hear the suit is it under a compulsion to return the plaint for presentation before the proper Court. There is no reason to whittle down the imperative character of this provision while applying it to the appellate Court. It is noteworthy that section 107, as already stated, is titled as "powers of the appellate Court". From jurisprudential point of view sometimes a distinction is drawn between "power" and "duty". We feel, so far as a judicial functionary is concerned, the distinction is etherial, when power is conferred on the Court or a quasi‑judicial tribunal for the benefit of the litigant. In such a case, exercise of power should be treated as compulsive. In East Suffolk Rivers Catchment Board v. Kent and another (1941 AC 74 (at p. 90)) Lord Atkin, after referring to some decisions of House of Lords, observed:‑‑ "I treat it therefore as established that a public authority whether doing an act which it is its duty to do, or doing an act which it is merely empowered to do, must in doing the act do it without negligence, or as it is put in some of the cases must not do it carelessly or improperly. Now quite apart from a duty owed to a particular individual which is the question in this case I suggest that it would be difficult to lay down that a duty upon a public authority to act without negligence or not carelessly or improperly does not include a duty to act with reasonable diligence by which I mean reasonable dispatch." It is to be noticed that all public authorities including the judicial functionaries while doing an act enjoined by law or merely empowered to do it must not do it improperly. An action may lie against a public authority for misfeasance or non‑feasance but for the sake of safe administration of justice and good sense no action lies for the breach of duty when the duty to perform is judicial or quasi‑judicial. There may be a variety of reasons for omission or failure in performing such duty or exercising power with reasonable dispatch such as delaying tactics of the parties to the action multiplicity of pending cases in the Court or intricacies of questions of law and facts raised before it. As stated at page 75 in Broom's Legal Maxims: "Cases, however, have occurred, in which injury was caused by the act of legal tribunal, as by the laches or mistake of its officer; and where, notwithstanding the maxim as to actus curiae, the injured party was without redress." Presumably the need to mitigate the rigor of the hardship inflicted on a party in the course of administration of justice, by an act of the Court, led to the emergence of the norm that "the act of the Court shall prejudice no man".

13. We may refer here with advantage to the classic remarks of Lord Eldon in Pulteney v. Warren (1801) 6 Ves. 73, 92, quoted by Maclean C.J., in Lakhan Chunder Sen v. Madhu Sen (ILR 35 Calcutta 209):‑‑ "If there be a principle, upon which Courts of justice ought to act without scruple, it is this; to relieve parties against that injustice occasioned by its own acts or oversights at the instance of the party, against whom the relief is sought. That proposition is broadly laid down in some of the cases:" This view was approved of by the House of Lords in The East India Company v. Campion (1837) 11 Bli. (ICS.) 158." In the same strain are the observations of Lord Cairns, L.C. in Rodger v. The Comptoir d'Escompte de Paris (1871) 3 P.C. 465, quoted with the approval by Lord Carson in Jai Berham v. Kedar Nath (AIR 1922 PC 269): "One of the first and highest duties of all Courts is to take care that the act of the Court does not cause injury to any of the suitors and when the expression `the act of the Court', is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of Appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case:' More recently a practical application of this rule, which perhaps is in somewhat close proximity of the case in hand is demonstrated in Hidayatullah v. Murad A. Khan (PLD 1972 SC 69), when this Court stepped into relieve the appellants before the Court, of the wrong, caused to them by the act of the trial Court. This was a case in which the pre‑emptors were required by the trial Court to deposit "Zare Punjam" in cash by 6th January, 1968. They, however, applied to the Court on 6th December, 1967 for grant of permission to furnish security in place of cash deposit but instead of disposing of their application, the Court adjourned it to 6‑1‑1968, on which date it rejected the application and also refused to enlarge time for cash deposit. Hamoodur Rehman, C.J. who spoke for the Court noticed that had the trial Court disposed of the application soon after it was filed, the difficulty faced by the pre‑emptors would not have arisen and maintained:‑‑ "There was, as we have already pointed out, a very good and substantial reason for the extension of time, because, even assuming that no application was made by the appellants for such extension of time, the Court, in the interest of justice, was fully competent suo motu to extend the time when it had by its own act made it practically impossible for the appellants to comply with its original order by adjourning the application for furnishing security to the 6th of January, 1968."

14. The stage is now set down to evaluate the effect of the learned District Judge's failure in returning the memorandum of appeal to the appellants with reasonable dispatch. It is correct that the appellants themselves were at fault, in filing the appeal in the District Court, which was not possessed of the pecuniary jurisdiction to hear it. But, let the appellants' mistake be there, a searching question needs to be asked had the learned District Judge, no reason to look into the existence or otherwise of the jurisdictional facts upon which the entertaining of the appeal by him was dependent, though not in depth, but at least prima facie; through a preliminary enquiry confined only to the cursory examination of the record before him. We are unable to show him any indulgence, in this regard. We are sure had he glanced through the record, the agony of the appellants would not have prolonged. In jIari Ram v. Akbar Hussain (ILR 29 All. 749) a Full Bench of the Allahabad High Court had the occasion to adjudicate upon the‑defendants' objection, in a pre‑emption suit that mistake in court‑fee by a party is not covered by section 28 of the Court Fees Act, 1870, and it applied only when a document not properly stamped, was received and used by the Court or Office by mistake or inadvertence. The objection was repelled with the observations which are quite instructive:‑‑ "The mistake may in its origin be the mistake of the plaintiff; by the time the plaint has been registered, the mistake has become the mistake of the Court. If the Court or the Munsarim discovered the plaintiffs mistake before registration of the plaint, the plaint would at once be rejected under section 54 of the, Code of Civil Procedure and never registered at all:" We feel that omission on the part of learned District Judge to take timely action is the major cause of refiling of the appeal by the appellants, in the High Court, out of time. They have been the victim of the act of the Court which furnishes "sufficient cause" under section 5 of the Limitation Act, for condonation of delay. The fact that after receiving the memorandum of appeal from the District Court, some time was consumed by the appellants, in presenting it to the High Court, in the circumstances of the case is inconsequential. We are, therefore, inclined to condone the delay in presenting the memorandum of appeal to the High Court. This appeal is therefore accepted, and the delay in refiling the appeal condoned. Resultantly, the first appeal filed by the appellants in the High Court shall be treated as pending end disposed of afresh on merits in accordance with law. The parties are left to bear their own costs. M.BA./S‑915/S Appeal accepted.