P L D 1958 (W (PLP)

B. Z. KAIKAUS, J.‑In this first appeal a preliminary objection has been taken that the appeal is time‑barred. The facts are that the judgment of the trial Court was delivered on the 9th of Feb ruary 1957. The suit was one for possession by partition and its valuation, as stated in the plaint, was Rs, 7,

000. This valuation had not been objected to by the defendant. The suit had been decreed. An appeal obviously lay to the High Court because the value of the suit was more than Rs. 5,000 The defendants filed an appeal, however, on the 1st of April 1957, in the Court of the learned District Judge, Multan. The Ahlmad who made a formal report did say that the valuation was Rs. 7,000 and appeal did not lie to that Court but his report does not appear to have been read by the District Judge. After notice had been served .on the respondent and an objection taken to the jurisdiction of the Court, the District Judge ordered on the 3rd of July 1957, that the appeal be returned for presentation to the proper Court. It was actually taken back by the appellant's` from the office of the District Judge on the 10th of August 1957 and was filed in this Court on the 7th of September 1957. The question is whether this delay can he condoned.

2. It is argued that the appellants had acted on the advice of his counsel in filing the appeal before the District Judge. Wrong advice of counsel tendered with due care and caution can no doubt be sufficient cause within the meaning of section 5 of the a 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 appellants 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 appellants 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 party may have a good case for proceed ing against him, his negligence cannot form a ground for extension of time under section 5 of the Limitation Act. Negligence of the counsel is the negligence of the party, because he is the agent of the party. If the negligence of counsel was to be condoned, appeals which are not filed through counsel's negligence would never become time‑barred and in cases where a dismissal in default was, due to the, negligence of the counsel, the suit or appeal would have to be restored. The provisions as to restoration of, proceedings dismissed for some default are similar to that in section 5 of the Limitation Act. In all such cases the party is to be granted relief for, sufficient cause. While it may. be hand on a party that for no fault of his and by the negligence of one who holds a licence to practise which certifies him as a fit and proper person to conduct a case, the party suffers but there is no help to it. On grounds of public policy we cannot, though we may hate to do so, relieve a party of the negligence of his counsel.

3. It is urged by learned counsel for the appellants that in this case the District Judge and his office should have at once returned the, appeal for they knew very well that this appeal did not lie to the District Judge. Had they performed their duty, he says, this appeal would have been returned shortly after it was filed, and as there was yet sufficient time for filing it in the High Court, it would not have become time‑barred. He relies upon the very well established principle that no person should be pre judiced by an act of the Court and urges that the failure of the Court to return the memorandum of appeal is a good ground for extension of time. He has cited three cases in support of this argument. The first is Muhammad Din v. Gurbakhsh Singh (A I R 1933 Lah. 611 (1)). In this case on an objection raised before the trial Court it was found that the Court had no territorial jurisdiction to try this suit and the plaint was ordered to be returned to the plaintiff on the 25th of March 1924. It was not actually returned to the plaintiff till the 10th of April 1924. The question which arose was whether the party should get the benefit of the interval between the 24th of March and the 10th of April 1924. It was found that due to the negligence of the office the plaint had not been returned earlier and that the plaintiff could not, in any way, be held responsible for the delay in its return. It was held that no liti gant could suffer on account of the laches or delay caused by the Court or its office, and time was extended. The second case is Ma Me Thin v. Maung San Lun (A I R 1915 Lower Burma 108) where no date was fixed for the .delivery of judgment and the party, in spite of repeated attempts to find out when judgment was to be delivered, was unable to do so. The judgment had ultimately been delivered without notice to the parties. It was held that the appeal became time‑barred entirely on account of the negligence of the Judge and the party was not responsible for it. The third case cited is Kali Prasad Sahu v. Mst. Bibi Aziz Fatma (A I R 1938 Pat. 149) where an application for execution was held not to be time‑barred, because a wrong date had been mentioned in the decree sheet which had been prepared under the orders of the Court and from that date the application was within time.

4. I am afraid none of these cases can help the appellants. These are all cases where the parties were not at all to blame. Where the party has not been guilty of any negligence, but on account of some act of the Court or its office, it is prevented from filing a proceeding in time, that obviously is a good ground for extension of time. Not one of these cases could support the proposition that where the party is itself guilty of negligence, the fact that the Judge or an officer of Court too is negligent, will be a good ground for granting the party the benefit of section 5.

5. This is a, hard case. One does not like that parties should be prejudiced by an act of incompetent or negligent counsel, but it appears to me that it is not possible to relieve the appellant of the injustice. I have tried my best to evolve some principle on the basis of which I may be able to say that because of the negli gence of the District Judge I have jurisdiction to extend time, but I have failed to do so. Ultimately it is always a question of finding whether there was sufficient cause. "Sufficient cause means something beyond the control of the party. It cannot be, said that, in a case where there has been contributory negligence by a Court, but where but for the negligence of the party the proceeding would have been filed in time, sufficient cause existed. While determining sufficient cause we should be lenient and should overlook some negligence that is an ordinary incident of human affairs, but gross negligence cannot be condoned.

6. Even if there was no further fact, I would have refused to extend time, but it appears to me that there are other reasons for a decision against the appellant. The appellants were negligent not only in filing the appeal before the District Judge, but even in getting it back. The order for the return of the memorandum of appeal had been passed on the 3rd of July 1957, but actually the appeal was taken back only on the 10th of August 1957. There was no explanation as to why the appellants did not take back the appeal shortly after the order was passed. There is no allegation of negligence in this connection on the part of the office or the District Judge. He who applies for extension of time has to give a satisfactory explanation of every day's delay.

7. The appeal is dismissed with costs. AKHLAQUE HUSSAIN, J.‑I agree. K. M. A. Appeal dismissed.