P L D 1952 Baghdad﷓ul﷓Jadid 8 (PLP)

ABDUL AZIZ, C. J.‑‑One Mst.. Bano made a gift of agri cultural land in favour of Said Muhammad and Muhammad Bakhsh defendants No. 2 and 3 by virtue of a registered deed, dated 6th of January 1946. A declaratory suit was brought on 10th of March 1946 by Roshan and others alleging that the donor had only life interest in the estate which ‑ was ancestral qua plaintiffs and she was not, therefore, competent to make the gift of the said land in favour of defendants No. 2 and 3 and a declaration be granted that it would not effect their reversionary rights after the death of the donor The suit for the purpose of jurisdiction was valued at Rs. 12,

000. The defendants raised no objection to the jurisdictional value and the suit after lingering on for three years wag decreed in favour of the plaintiffs. An appeal was preferred to the Court of the District Judge, Bahawalpur where an objection was taken by the respondents that the Court of the District Judge was incompetent to entertain the appeal. On this objection the position taken, up by the learned Counsel for the appellants was that the jurisdictional value initially fixed in the Court of the first instance should have been fixed at fifteen times the net profits of the preceding year of that land. This ques tion was gone ‑into by the learned District judge and he came to the conclusion that the jurisdictional value in appeal was more than Rs. 5,000 that being the fifteen times of the net profits of the preceding year of that land. He thereupon returned the memorandum of appeal to, be presented to the proper Court. The, appeal, therefore, came up before this Court and a preliminary objection was taken by Mr. Mustafa Khan counsel for the respondents that the appeal was barred by‑ time because it ought to have been presented in the High Court instead of preferring it to the Court of the District Judge. Mr.Bajwa who has preferred this. appeal in the‑ High Court had contended that though the appeal was barred by time from the date of the decision of the Court of first instance yet the period should be extended' under the provisions of section 5 read with section 14 of the Limitation Act. The only point for consideration therefore for this Court is whether the circumstances in this appeal warrant the exten sion of time. Section 5 of the Limitation Act which is appli cable to the Courts of the State reads as below :‑‑ Any appeal or application for a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of, limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period." The general rule no doubt is that every suit instituted, appeal preferred or application made 4fter the period prescrib ed therfor by the first schedule shall be dismissed. This section is one of the provisions to 'which the general rule is subject, and provides for the extension of time in the case' of appeals and certain specified applications under the circum stances referred to in it, namely, that the appellant or appli cant, as the case may be, satisfies .the Court that he had sufficient cause "for not filing the proceeding within the period prescribed. But mere proof of the existence of sufficient cause for not filing the proceeding within the prescribed period does not under the section, ipso facto compel the Court. to extend the time. The Court has a discretion to admit or refuse to admit the proceeding, even if sufficient cause is shown, as is made clear by the words "may be admitted". The conclusion drawn from the general rule is that the existence of sufficient cause for not filing the proceeding in time is thus merely a condition that must be satisfied before the Court exercises its power of granting or refusing to grant the extension of time. If the condition is not satisfied, there is no room for the applicability of the power to excuse delay. Thus, where no cause has, at all, been shown that is, where no explanation has been given for filing the proceeding out of time, there arises no opportunity of considering the sufficiency or otherwise of the reasons for that fact, and there cannot be any room for the exercise of the discretion given by the sec tion. If the condition is satisfied, then the Court gets a dis cretionary power to grant or refuse the prayer for extension of time. It may in its discretion refuse to extend the time even though there may be sufficient cause for the delay. The extension of time is thus a matter of concession or indulgence to the applicant and cannot be claimed by him‑ as a matter of absolute right. Whenever discretion is to be exercised it should be exer cised in a judicial and not an arbitrary manner and a consider able care should be exercised in determining the question of "sufficient cause" which is always a question of fact, in each case. Thus a sufficient cause can properly be said to be a cause which is beyond the control of the party invoking the aid of the section. A cause for delay which by due rare and attention‑the party could have avoided cannot be a "sufficient cause". The test, there fore, whether or not a cause is sufficient is to see whether it could have been avoided by the party by the exercise of due care and attention : in other words, whether it is a bona fide cause, inasmuch as nothing shill be deemed to be done bona fide or in good faith which is not done with due care and! attention. In Krishna v. Chathappan 13 Mad. 269 Their Lordships observed that the words "sufficient cause" should receive a liberal construction so as to advance substantial justice when no negligence, nor inaction, nor want of bona fides is imputable to the appellant. The question of the existence of "sufficient cause" is thus one of fact to be decided from the facts and circumstances of the particular case. We have now to revert to the facts in the present case in order to determine whether sufficient cause is established in order to grant the concession claimed by the appellant. It has already been stated above that the jurisdictional value fixed initially by the plaintiff in the plaint was Rs. 12,

000. Through out the trial of the case for 3 years no objection was raised by the defendants to that jurisdictional value. It was evident therefore that they had admitted it as correct. After the decision of the case the appeal was preferred to the District judge but no application was attached to the memorandum of appeal that the jurisdictional value was wrongly fixed by the plaintiff in the Court below and that it was below Rs. 5,000 and the appeal was thus within the competence of the District Judge nor any affidavit 'eras put in the Court to that effect. It is clear, therefore, that the counsel who had presented the appeal in the Court of the District judge had no intention to contest the correctness of the jurisdictional value for the purpose of appeal. He therefore blindly put in the memo randum of appeal in an incompetent Court. When the objec tion was raised, by the respondents as it was to their interest to raise it, the learned counsel for the appellant realised his mistake and with an intent to overcome it he took up a position which was never taken up by him so far, that is that the jurisdictional value in the Court below was wrong and really it was below Rs. 5,

000. If the learned counsel for the appellants had realized the consequences of the appellants objection he would not have raised that objection so haphaz ardly. He would have accepted his mistake and would have, taken the memorandum of appeal back to present it to the proper Court. He persisted that the jurisdictional value in the Court below was wrong and then failed to prove it. If he really believed that the jurisdictional value was wrong he ought to have entered the Court of the District judge with‑an application accompanied by an affidavit and the requisite documents in support of his objection. It, therefore, cannot be said that the Counsel was reasonably diligent in prosecuting his appeal or his application. If he was not then he cannot ask this Court that the period of limitation which had expired should be extended. I have already observed that the discre tion is not to be exercised arbitrarily but judicially. It is firmly established that when the time for appeal or applying is once passed a very valuable right is secured to the successful party of which he should not be deprived lightly. See 25 A I R 1938 Nag. 156 and

409. To the same effect are the observation in 6 (B) Law Reporter.373 Sikandar Chand v. Mano Lal Deva Das. It was observed by the learned Judge that the law prescribes that an appeal must, appart from special circum stances, be presented within a limited., time, and if effect is not given to the provisions of the law, a successful1litigant maybe wrongly deprived of the benefit which had been secured to him by the jurisdiction of the first Court: To put it briefly it is necessary, before a party can claim indulgence under this section, that ‑he should prove not only the existence of "sufficient cause" for the delay but also that he was reasonably diligent in prosecuting his proceedings. The learned counsel for the appellant in support of his contention has drawn my attention to certain rulings which to my mind afford no assistance to him. The first is 1939 Bom.

26. The head‑note itself does not help him. That 'refers to the application of section 14 and the point was disposed of in the following terms :‑ "Section 14 must be liberally construed, and if on the facts of a particular case, the Court finds that the plaintiff was pro secuting in good faith another civil proceeding against the same defendant, founded upon the same cause of action; the time taken up in such proceeding will be excluded and the mere fact that it is held that the cause of action was premature will make no difference. The next ruling is 1931 Lah.

259. This was based on entirely different facts. After the case was decided by the Subordinate Judge the appeal was properly presented to the Court of the District Judge. But when the case was remanded to the‑ Subordinate Judge and after the report was received by him the jurisdictional value exceeded and the Court of the District Judge became incompetent thereby to decide the appeal. It was at that time that the memorandum of appeal was returned to be presented to the proper Court. When it was presented to the High Court it was barred by time. It was rightly held under those circumstances that there was sufficient reason for the appellant to come to the High Court after the lapse of the prescribed period of limitation. It was during the pendency of the appeal before the District judge and after the remand from the District judge that the jurisdiction in the case had increased. Such are manifestly not the facts in the 'appeal before this Court. 1929 Cal. 240 similarly contained different facts. It was held as a fact that in that case the appellant acted bona fide in preferring the said appeal there was initial cause for him for not preferring the appeal within time. It was therefore, treated a fit case for the Court to exercise its discretion under section

5. It was contended by Mr. Mustafa Khan that section 14 has no application to the present case. But in reply to this Mr. Bajwa has drawn our attention to 1927 All. 719, 1937 P. C. 276 and 1928 Lah.

136. In the first ruling it was held that the provisions of section 14 Indian Limitation Act can be applied to the appeal but the facts in that case stand pole as: under from the facts of the present case and apparently the reasons for the application of that section to that case, cannot apply to the present case. There the appeal was presented to a Court wrongly on account of some administrative misconception. The Court of the Subordinate judge was once attached to one District judge and later it was transferred to another District Judge. It was, therefore; that the appeal was presented to a wrong Court: In that case the Court treated the circumstances as sufficient to extend the period of limitation. Facts of 1928 Lah. 136 are equally different from the facts of the present case. There a suit for redemption the value; of which for the purposes of jurisdiction was Rs. 99 was decreed against the appellant who presented an appeal to the Court of the Senior Subordinate Judge who after enquiry, held that the suit was for possession by redemption of "land" as the property in suit was initially land and its character had not been changed by anything alleged to have been done thereon by the defendant. He therefore returned the memorandum of appeal for presentation to the proper Court. . The next day, the appellant filed the appeal in the Court of the District judge though the presentation was not within time. The appellant claimed reduction of the time spent by him in prosecuting his appeal in the Court of the Senior Subordinate judge under section 14, Limitation Act. It was then held that the, provision of section 14, Limitation Act. applied to that case. In that case the form of appeal was changed by the Senior Subordinate judge and for which the appellant could not be held responsible. It was, therefore, held that there were sufficient reasons to bring the case within the ambit of section 14, Limitation Act. The last ruling 1937 P C 266 have also different, facts. On the other side Mr. Mustafa Khan. drew our attention to a number of rulings in which it was held that in order that mistaken advise given by counsel may be "sufficient cause", within the meaning of section 5 such advice must be given with due care and attention and not through negligence of counsel. Filing of an appeal in a wrong Court through gross carelessness of the counsel is not a "sufficient cause" for pre senting the appeal to the proper Court after the expiry of the period of limitation. In 1932 Cal. 589 it was laid down that there is no authority for the view that a mistake of a legal adviser, however, gross acid inexcusable, if bona fide acted upon by a litigant will entitle him to the protection of section 5 of the Act. Each case of this sort depends on its facts but the sound working formula would be this : In cases where a suitor has suffered from negligence or gross want of legal skill of his legal adviser he has his remedy against that legal adviser and meantime the suitor must suffer. But where there has been a bona fide mistake, not through misconduct or through negligence nor through want of reasonable skill, but such as a skilled person might make, the client is entitled to indulgence. We cannot presume that this case needed any reasonable skill which the counsel could not honestly exercise and con sequently it lead him to commit a mistake in preferring an appeal to the Court of the District Judge. To our mind it was a case of gross and inexcusable negligence as it is estab lished Beyond doubt from the facts stated above and we do not think inadvisable to repeat them: In 1933 Lah. 568 it was laid down that a legal adviser's mistake to justify extension of limitation must be a bona fide one that is, it must redone with the due care and attention. 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 presented the memorandum to the District Judge : there was no bona fide mistake and hence the limitation could not be extended. Reference may further be made to 1944 O. 135, 1929 section 32, 1933 rule 396 where similar proposition was laid down. We are therefore of opinion that no sufficient cause is shown in the present appeal to extend the period of limitation. We treat it a case of gross and inexcusable negligence and consequently decline to extend the period of limitation. The appeal, therefore, is to be treated as barred by time and is dismissed with costs. Said Muhammad appellant Fateh Muhammad Mukhtar of the respondent are present. Announced. K.M.A. Appeal dismissed.