2001 PLP 2326 (YLR)

MIAN HAMID FAROOQ, J.

This appeal proceeds against the judgment and decree dated 10-6-1999, passed by the learned Civil Judge, Phalia, District Mandi Baha-ud din, whereby the learned Judge dismissed the suit for possession through pre-emption, filed by the appellant.

2. Facts, in brief, leading to the filing of the present appeal are that the appellant filed a suit for possession through pre-emption in respect of land measuring 78 Kanals (elaborately described in the plaint), owned by Anayat Bibi and Hadayat Bibi, which was sold in favour of respondents Nos.1 and 2 for a consideration of Rs.3,00,

000. The suit was contested by the respondents by way of filing the written statement thereby controverting the averments contained in the plaint, culminating to the framing of the issues and the learned Civil Judge, after recording the evidence of the parties, both oral as well as documentary, proceeded to dismiss the suit vide judgment and decree dated 10-6-1999. Feeling aggrieved by the said judgment and decree, the appellant filed an appeal, on 23-6-1999, before the learned District Judge, Mandi Baha-ud-din, which remained pending before the said learned Court till 9-6-2001, on which date arguments were addressed regarding pecuniary jurisdiction of the learned District Judge to entertain the appeal. It was noticed by the learned Appellate Court that the learned trial Court, vide order dated. 18-4-1996, fixed the valuation of the suit at Rs.22,731 x 15, which comes to Rs.3,40,

965. The learned Judge after coming to the conclusion that pecuniary jurisdiction exceeds from Rs.2,50,000 ordered for the return of memorandum of appeal to the appellant for its presentation before the Court of competent jurisdiction, consequently, on 9-6-2001, the memorandum of appeal was returned to the appellant.

3. The appellant, then, filed the aforenoted memorandum of appeal in this Court, on 21-7-2001, alongwith an application (C.M. No.2-C of 2001) under sections 5 and 14 of the Limitation Act for the condonation of delay.

4. Learned counsel while reiterating the contents of the application seeking condonation of delay has contended that the appeal was filed, admittedly, before a wrong forum under a bona fide belief and, as such, the contents of the application coupled with the affidavit of the appellant amply justify the condonation of delay in filing the appeal in this Court.

5. Above narrative would manifest that, admittedly, the impugned judgment and decree was passed on 10-6-1999 and the present appeal was instituted before this Court on 21-7-2001, thus, the appeal has been filed after an inordinate delay of two years, one month and 10 days. The only reason advanced in the application, seeking condonation of delay and argued by the learned counsel is that the appeal was filed by the appellant before a wrong forum under a bona fide belief that the appeal is maintainable before the said Court.

6. Section 14 of the Limitation Act permits the exclusion of time only for proceedings "prosecuted in good faith" therefore, in order to make out a sufficient cause under section 5 of the Limitation Act, an applicant must prove that he had acted in good faith. The applicant in this case has failed to prove, even prima facie, or to place on record any document in order to show that either he acted in good faith or the appeal was filed before a wrong forum under a bona fide belief. Even no affidavit of the learned counsel, who has allegedly instituted the appeal in wrong forum has been filed alongwith the appeal. The bald assertion of the appellant/applicant that the appeal was filed under a bona fide belief, will be of no help to him. Needless to mention that the appeal before the learned Additional District Judge remained pending approximately for two years and at no point of time, the appellant or his learned counsel realised their mistake. Needless to mention that in order to be entitled for the condonation of delay, within the parameter of law, each day's delay has to be explained by the party, who is seeking the condonation of delay. It has been held in Ch. Muhammad Sharif v. Muhammad Ali Khan and others 1975 SCMR 259 that failure to acquaint himself with relevant provisions of law relating to jurisdiction of the Court amounts to the negligence on the part of the counsel and, therefore, the delay was not condoned.

7. We are aware, for sure, that there are judgments to this effect that when it is proved on record through the production of some documents that the learned counsel after taking all the legal pre-cautions filed an appeal before a wrong forum under a bona fide belief, then, of course, under the facts and circumstances of each case, the delay in filing the appeal can be condoned. But in such-like cases, at least, the affidavit of the learned counsel, who has allegedly filed an appeal under the bona fide belief before a wrong forum, must be on record of the case. Surprisingly, in this case, neither the bona fide belief of the learned counsel has even been pleaded in the application in hand nor there is any affidavit of the learned counsel to this effect. In the present application, the appellant has only alleged, without re- enforcing the plea of any bona fide belief, that the appeal was filed by the petitioner before the learned District Judge under a bona fide belief. Only the affidavit of the appellant in support of this casual and vague application is of no avail to the applicant for condonation of delay.

8. Another aspect of the case which has become very 'significant is that admittedly, the appellant received the memorandum of appeal from the lower appellate Court, on 9-6-2001, but the same was filed on 21-7-2001, in this Court, with an application for condonation of delay, after 41 days of the return of the memorandum of appeal. The appellant has further failed to explain as to why the returned memorandum of appeal was submitted in this Court after the delay of 41 days, which explanation is comprehensively lacking in this case and the appellant did not care to explain about this period of delay. It is settled law that the applicant has to explain the cause of delay of each and every day before he can claim for the condonation of delay.

9. Seeing from any angle, the appellant/applicant could not make out any case for the condonation of delay under the parameters laid down by the relevant law and comprehensively failed to explain the delay of each and every day, thus, the application under sections 5 and 14 of the Limitation Act (C.M. No.2-C of 2001) is devoid of merits and is dismissed.

10. With the dismissal of the aforesaid application, the appeal in hand is grossly barred by time, which has been filed after the lapse of two years, one month and ten days thus, the same is also dismissed in limine. H.B.T./S-286/L Appeal dismissed.