P L D 1966 (W (PLP)

3. In support of the appeal Ch. Abdul Rehman, the learned counsel for the appellant, has contended that the appeal was filed in the Court of the Senior Civil Judge, Multan on the advice of Malik Faiz Rasool, Advocate, a senior counsel of Multan. He referred me to his affidavit in support of the allegation made in the application under section 5 of the Limitation Act that, in the first instance, the Memorandum of Appeal was presented to the Court of the District Judge, but his clerk of Court informed that the Senior Civil Judge was competent to entertain it and upon this information he later on presented it to the Court of the Senior Civil Judge. It is not disputed by the other side that this allegation is corroborated by the Memorandum of Appeal and the connected papers filed in the Court of Senior Civil Judge. The heading of the Memorandum of Appeal shows that it was first addressed to the District Judge, Multan and later on it was changed and addressed to the Court of the Senior Civil Judge, Multan.

4. Sh. Muhammad Iqbal Husain, the learned counsel for the respondent has not challenged the facts stated by Malik Faiz Rasool, Advocate in his affidavit dated the 10th December 1955. In this affidavit the said Advocate had affirmed that by bona fide mistake the appeal was presented on his advice in the Court of the Senior Civil Judge, Multan, and this advice was not based on negligence. In view of this affidavit the learned counsel for the appellant has contended that the lower appellate Court has fallen into an error in holding that the appellant had not made out a sufficient reason for condoning the delay under section 5 of the Limitation Act. The learned counsel contended that it is a well established rule of law that mistaken advice of counsel is a good ground for extension if counsel does not act negligently. In support of his contention reliance was placed on a decision of the Judicial Committee in the case of Kunwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali and others (A I R 1937 P C 276). It was held in that case by their Lordships of the Privy Council that mistaken advice given by the legal practitioner may, in the circumstances of a particular case, give rise to sufficient cause within the meaning of section 5 of the Limitation Act, though there is certainly no general doctrine which saves parties from the result of wrong advice. In that case a person acting under Chapter 7 U. P. Land Revenue Act presented an application for partition which was dismissed. The applicant filed an appeal in the Court of the District Judge within the period of limitation acting on the mistaken but wrong advice of his counsel who honestly took the view that the valuation of the suit for the purpose of appeal was Rs. 1,

000. The appeal was dismissed on the ground that the true value was in excess of Rs. 5,

000. Thereupon the applicant filed an appeal in the Chief Court and along with an application under section 5 of the Limitation Act for extension of time. The application was dismissed on the ground that the counsel did not exercise due care and attention and acted with gross negligence in the matter. Their Lordships observed as under:‑ "That the counsel cannot be deemed to have been negligent in valuing the appeal nor could his action be described as gross negligence; facts therefore disclosed as sufficient cause within the meaning of section 5 and in applying that section to such a case the principle of section 14 should be applied by anology." The learned counsel further referred to the case of Arura v. Karam Din (A I R 1947 Lah. 76). In that case the High Court extended the period of limitation on the ground that the mistake which led the appellant to choose the Court of the Senior Subordinate Judge as his forum was due to the objections raised by the other side. Their Lordships considered it as sufficient cause within the meaning of section 5 of the Limitation Act and extended the period of limitation. In the case of Ghulam Muhammad v. Usman and others (A I R 1933 Lah. 541), a Division Bench of the Lahore High Court extended the period of limitation on the ground that an appellant in presenting an appeal to a wrong Court on the mistaken advice given bona fide by his pleader is entitled to exclude the period during which the appeal remains pending in the wrong Court. It was held that the appellant should not be penalised for having acted on the mistaken advice given bona fide by his pleader. In the case of Muhammad Latif v. Muhammad Hafeez and others (P L D 1951 Lah. 479) also a Division Bench of the Lahore High Court extended the period of limitation on the ground that in view of the decision of the trial Judge that the suit was properly valued both for purposes of Court‑fee and jurisdiction and the appeal lay to the District Judge, but since the parties had agreed before the District Judge that the correct value of the suit for purposes of jurisdiction was Rs. 18,000 the appellant in presenting the appeal in the Court of the District Judge acted bona fide and condoned the delay on that account.

4. In reply Sh. Muhammad Iqbal Husain, the learned counsel for the respondents, has placed reliance on the decision of the Lahore High Court and of this Court in the following cases: (1) Naul and others v. Mula and others A I R 1926 Lah. 626; (2) Uttam Chand v. Yishandas A I R 1933 Lah. 568; (3) Foodstuffs Supply Co. v. Irfan Cotton Mills and others P L D 1958 Lah. 325; and (4) Allah Wasaya and others v. Muhammad Shakir P L D 1958 Lah.

959. In A I R 1926 Lah. 626 the delay in presenting the appeal was four years and their Lordships declined to condone the delay on the ground that there was no ground for extending the time in removing the defect. In A I R 1933 Lah. 568 final decree passed by the trial Court was in the sum of Rs. 10,042‑6‑

6. The respondent challenged this decree to the extent of Rs. 4,941‑5‑3 and filed an appeal in the Court of the District Judge. A Division Bench of the Lahore High Court did not accept the ground for extension of the period of limitation given by the appellant that he had consulted the counsel who presented the Memorandum to the District Judge on the ground that there was no bona fide mistake on the part of the counsel. In P L D 1958 Lah. 325 a decree was passed by the trial Court in the sum of Rs. 29,000, but the counsel mistook the decree amount to be Rs. 3,000 which represented only one item of the decree and the actual decree amount was much more. In these circumstances his Lordship held that it was not possible to put forward any view of law on adoption of which the appeal could have been filed in the Court of the District Judge; and therefore considered that it was not a fit case for condoning delay in preferring an appeal to the High Court. In P L D 1958 Lah. 959 the suit for possession and partition was valued at Rs. 7,

000. No objection was raised about the valuation of the suit and it was decreed. Obviously the appeal lay to the High Court because its value was much more than Rs. 5,

000. The defendant however filed an appeal in the Court of the District Judge. Later on the District Judge returned the appeal for presentation to the proper Court. It was taken back by the appellants from the office of the District Judge on 10th August 1957 and was filed in the High Court on 7th September 1957. It was argued before the Division Bench that the appellants have acted on the advice of his counsel in filing the appeal before the District Judge. In this connection their Lordships observed as under:‑ "Wrong advice of counsel tendered with due care and caution can no doubt be sufficient cause within the meaning of section 5 of the Limitation Act but negligent advice has never been and can never be a ground for extension of time. Here, the facts are such that it is even difficult to understand how learned counsel for the appellant could have filed this appeal before the District Judge. Every counsel is expected to know that an appeal in a suit where the valuation is more than Rs. 5,000 lies to the High Court. The valuation has to be stated in the Memorandum of Appeal, and in this case it had been stated as Rs. 7,

000. We asked the learned counsel who appeared for the appellant in this Court to enquire from the learned counsel who filed the appeal in the Court of the learned District Judge as to why he had filed the appeal in that Court. His reply is that he is new to the profession and he was under the impression that all appeals lay to the District Judge. He had just to look up the relevant law or to get advice from any other counsel to remove this misapprehension and in any case he was not entitled to assume that all appeals lay to the District Judge. This is a case of gross negligence on the part of counsel and while the parties may have a good case for proceeding against him, his negligence cannot form a ground for extension under section 5 of the Limitation Act." In view of these observations the delay was not condoned.

5. Thus it will be noticed that the principle applicable in such cases is that in cases where wrong advice was tendered with due care and caution it is considered to be a sufficient cause within the meaning of section 5 of the Limitation Act; but a negligent advice has never been and cannot be considered to be a good ground for extension of time. In cases of gross negligence of counsel delay cannot be condoned under section 5 of the Limitation Act because the negligence of the counsel is the negligence of the party. Considering the present case in the light of the above discussion it is to be seen whether Malik Faiz Rasool, counsel for the appellant, gave the advice to file the appeal in the Court of the Senior Civil Judge, Multan under a bona fide mistake or on account of any gross negligence on his part. His affidavit shows that in the first instance the appeal was addressed to the District Judge, Multan and it was presented to the clerk of the Court of the District Judge and it was upon the information given by him that the appeal lay to the Court of Sheikh Abdul Hamid, Senior Civil Judge that the latter presented it to that Court. This fact is corroborated by the heading of the Memorandum of Appeal and the connected papers which were presented to the Court of the Senior Civil Judge along with the Memorandum of Appeal. It is not disputed that the predecessor of Sh. Abdul Hamid, Senior Civil Judge was exercising enhanced appellate powers. It is quite clear that in the present case Malik Faiz Rasool was misled by the information conveyed to him by the clerk of the Court of the District Judge. The statement of the counsel appearing for the appellant in the District Court has not been challenged by any counter affidavit nor has it been challenged before me. On the facts stated by him in the affidavit, it cannot, therefore, be said that the counsel appearing in the lower Appellate Court acted with gross negligence. On the other hand, he was misled by the wrong information of the clerk of the Court of the District Judge and this in my view, is nothing else but a bona fide mistake on the part of the learned counsel in the lower Appellate Court. In my opinion, therefore in the circumstances of the present case, the learned District Judge should have condoned the delay in presenting the appeal in his Court.

6. But Sh. Muhammad Iqbal Husain, the learned counsel for the respondent, has contended that the learned District Judge has also declined to condone the delay on the ground that the appellant had failed to satisfactorily explain the period from 11th June 1955 to 14th June 1955, which was taken for presenting the Memorandum of Appeal returned by the Senior Civil Judge, Multan to the Court of the District Judge. In this connection the learned counsel referred me to two decisions of the Lahore High Court reported in Muhammad Ghazanfar v. Mst. Noor Basar (P L D 1952 Lah. 156) and Ghulam Hussain and others v. Bahadur and others (P L D 1954 Lah. 361). In the first case a pauper application was presented beyond time and an application was made under section 5 of the Limitation Act. A Division Bench of the Lahore High Court held that the prescribed period of limitation having expired, the person desiring the Court to condone the delay must explain every day of the delay. Similarly, in P L D 1954 Lah. 361 the learned single Judge observed "that in order to have the benefit of section 6 of the Limitation Act it is the duty of the appellant to explain the delay for every day that elapsed beyond the period allowed by the Limitation Act for filing an appeal." No body can question the principle of law followed in these decisions. It is, therefore, to be seen whether the appellant has been able to explain the time taken from 11th June 1955 to 13th June 1955 in not presenting the Memorandum of Appeal ordered to be returned to him on 11th June 1955. Ch. Abdul Rehman, the learned counsel for the appellants, have brought it to my notice that 12th June 1955 was a Sunday which has not been disputed by the learned counsel appearing for the respondents. It is therefore quite clear that the appellants could not reasonably be expected to take back the Memorandum of Appeal from the Court of the Senior Civil Judge, Lahore before 13th January 1955. On 13th January 1955, the Memorandum of Appeal was actually returned to them and the appeal was presented on the next day, that is, 14th January 1955. In my opinion, the time taken by the appellant in presenting the appeal to the proper Court has been sufficiently explained. The respondent counsel's contention that the Memorandum of Appeal should have been taken back on the 11th June and presented on the same day in the District Court has not impressed me. Similarly his contention that the Memorandum of Appeal should have been presented on the 13th June to the District Court which is at a very short distance from the Court of the Civil Judge has also not impressed me. In the case reported in P L D 1951 Lah. 479 the Memorandum of Appeal was actually returned on 5th May 1943 and the appeal was presented to the High Court on 6th May 1943 and their Lordships did not consider it as insufficient good ground for condoning the delay. In my opinion, therefore, the appellant has satisfactorily explained the time taken by him from 11th June 1955 to 13th June 1955 in not presenting the appeal to the Court of the District Judge, Multan. On this ground also I would hold that the learned First Appellate Court had fallen into an error and he should have condoned the delay in presenting the appeal in his Court under section 5 of the Limitation Act After carefully considering the arguments advanced by the learned counsel for the parties, it seems to me that the appellant in presenting the appeal to the Court of the Senior Civil Judge Multan acted on a bona fide mistake and advice given by his counsel and therefore, the learned District Judge ought to have s, condoned the delay under section 5 of the Limitation Act.

7. In the result, I would, therefore, set aside the judgment and decree of the learned Additional District Judge, Multan and remand back the case to the Court concerned for decision of the appeal on merits, after notice to the parties within four months of the passing of this order. The parties will bear their own costs in these proceedings. K. B. A. Appeal accepted.