1994CLC701 (PLP)

Dewan Bashir Ahmed Khan for Appellant, A.R. Mirza for Respondent. Date of hearing: 22nd April, 1993. The respondent purchased a motor‑car from the appellant for a consideration of Rs.70,

000. The respondent waited for transfer documents pertaining to the sale of the car but without any result. Consequently, the respondent filed a suit against the appellant seeking declaration that she was a lawful owner of the car having purchased the same for valuable consideration. An injunction was also sought to restrain the appellant from interfering with the possession and use of the said car by the respondent. This suit, when it came for hearing before the learned VIth Senior Civil Judge, Karachi Court, was decreed in favour of the respondent. The appellant, being aggrieved by the decree, filed appeal first before the learned District Judge, Karachi (South) but after it transpired that under section 18 of the Civil Courts Ordinance, 1962 (Ordinance II of 1962) an appeal against the said decree was maintainable before this Court since the value of the original suit in which the decree was passed exceeded RsS0,000, the appeal was presented before this Court. According to Article 156 of the Limitation Act, an appeal before this Court could be presented within 90 days, however, when the appeal was presented before this Court the period of limitation provided under the said Article had already expired. Thereafter, a belated application under section 5 of the Limitation Act (C.M.A. No.24/93) was filed by the appellant, requesting for condonation of the delay in filing the appeal which, according to her own admission, was of about 40 days. However, Mr. A.R. Mirza, learned Counsel for the respondent has strenuously urged that under the circumstances of the case, such delay cannot be condoned by this Court.

2. Before adverting to the issue, it is pertinent to point out that the aforesaid judgment and decree was passed by the learned Civil Judge on 29‑11‑1990. The appellant applied for copy of the judgment and the decree on 3‑12‑1990. The endorsement made on the certified copy of the judgment further indicates that the costs were estimated on 6‑12‑1990 which were deposited on the same day and the copy was made ready on 8‑12‑1990. Consequently, six days were consumed for preparation of the certified copy of the judgment. It may also be pointed out that although the appellant had applied for a certified copy of a decree on the same day but the endorsement made on the certified copy further indicates that costs for supply of copy were estimated on 20‑12‑1990 which were deposited on the same day and the copy was also made ready on the same day. Therefore, 18 days appear to have been taken by the Office to prepare the said copy of the decree. Thereafter, an appeal was filed by the appellant but the same was presented before the District Judge, Karachi, South who subsequently transferred the same to the, Third Additional District Judge South. Although, according to the affidavit filed by the appellant, the said appeal which had been filed on 22‑12‑1990 before the learned District Judge was well within time and the same had also been found to be in order by the Office and consequently, it was being prosecuted in good faith and due diligence before the learned Third Additional District Judge. However, after notice in respect of the appeal was served upon the respondent an objection was raised for the first time. Thereafter, on 13‑4‑1991 which was the same day an application was moved by the Counsel for the appellant for return of the memo of appeal for filing the same before this Court. Notice was thereafter issued by the Court on the said application for 27‑4‑1991. On the same day the memo of appeal was returned to the appellant for filing the same before this Court and thereafter the appeal was filed the same day before this Court.

3. Consequently, there appears to be no controversy in regard to the fact that the appeal was filed before this Court after a delay of 149 days and even if the period requisite for obtaining certified copies of the judgment and the decree is excluded as provided in section 12 of the Limitation Act, the appeal would still be time‑barred by 41 days.

4. Section 14 of the Limitation Act provides for exclusion of time if proceedings which have been prosecuted bona fide and in good faith before a Court without jurisdiction and section 5 of the said Act is another provision which provides for condonation of delay if the appellant or the applicant as the case may be satisfied the Court that he had sufficient cause for not preferring the appeal or making the application within the period of limitation prescribed therefore under the said Act.

5. Mr. Dewan Bashir Ahmed, learned Counsel for the appellant has argued that since the appellant was pursuing the remedy before the learned District Court in good faith and with due diligence, such period should be condoned by this Court. Various judgments given by the Supreme Court on the point have been discussed. The cases mainly referred to by the learned Counsel being Muhammad Hashim Khan v. The Chairman, Balochistan Service Tribunal (PLD 1983 SC 262), Mian Muhammad and 10 others v. Additional Commissioner (Revenue/Settlement Commissioner), Rawalpindi (1991 SCMR 520) and Ghulam Ali v. Akbar alias Akoor (PLD 1991 SC 957). No doubt, in the above cases it has been observed that while considering the question of condonation of delay both sections 5 and 14 of the Limitation Act are to be read in juxtaposition. However, in Ghulam Ali v. Akbar alias Akoor it was further held, that only that delay would appear to be condonable which had occurred in spite of the fact that the plaintiff had prosecuted his case with due diligence. The facts of this case appear to be identical with those of the case in hand. In this case also, an appeal was filed before the District Court notwithstanding the clear provisions of section 18 of the Civil Courts Ordinance, 1961. Therefore, the memo. of appeal was presented before the High Court but by the time the appeal had been filed before the High Court, the same had become time‑barred. An application under section 5 read with section 14 of the Limitation Act was filed which was, however, dismissed and so was the appeal as time‑barred. It was held that it was the duty of the Counsel to check the law before presenting the appeal and consequently, any written advice given by‑the Counsel could not extend the period of limitation. The Supreme Court also declined to interere with the judgment of the High Court. Reference was made in this case to Abdul Ghani v. Ghulam Sarwar (PLD 1977 SC 102), the facts of which case were again identical to the case of Ghulam Ali. In the said case also the Supreme Court declined to interfere with the judgment of the High Court. In fact, in Abdul Ghani's case, the District Court had even gone to the extent of granting an ad interim injunction in the case which had attracted the principle actus curiae nemonim gravalsit, nevertheless the order of the High Court declining to condone the delay was upheld.

6. In the present case, the learned Counsel wrongly advised the appellant to file the appeal before the learned District Court in the face of the clear provisions of section 18 of the Civil Courts Ordinance, 1961 when he had himself valued the suit at Rs.70,

000. Consequently, due diligence was not exercised by the. learned Counsel while presenting the appeal before the learned District Court. Such proceedings before the District Court cannot be said to have been prosecuted in good faith because the same was done without due care and caution. Consequently, neither section 5 nor section 14 of the Limitation Act, can come to the rescue of the appellant in the present case. Consequently, I am clearly of the view that the delay in filing the present appeal cannot be condoned because once a matter is shown to be time‑barred, a valuable right also accrues in favour of the opposite party. Under the circumstance, C.M.A. No..24/93 is dismissed.

7. Since the application for condonation of the delay has been dismissed, it will be futile to go into the merits of the case. This appeal is, therefore, dismissed as time‑barred.‑The parties are left to bear their own costs. A.A./R‑255/K Appeal dismissed.