P L D 2005 Peshawar 214 (PLP)

EJAZ AFZAL KHAN J.

Appellants instituted a suit for recovery of Rs.29,00,000 (Rs.29 lacs) as their share in the business descending on them and the respondents on the demise of their ancestor. They also asked for recovery of their share in income at the rate of Rs.20,000 per month from December, 1998 up to date.

2. The respondents on being served raised objection as to the A maintainability of the suit. The learned trial Judge after hearing the parties rejected the plaint, vide order dated 31-10-2002, mainly on the ground that the form of suit was not proper and that the suit for rendition of account was the proper remedy in the circumstances of the case.

3. The appellants preferred an appeal in the Court of the learned District Judge on 3-1-2003 which was, however, entertained and admitted to regular hearing on the same date. Later on when the respondents raised objection about its competency on account of pecuniary jurisdiction, it was returned by the learned District Judge, vide order dated 7-5-2003, hence this appeal.

4. It was argued by the learned counsel for the appellants that where the appellants pursued his remedy with all the diligence at his back and call in a wrong forum any delay so consumed in such forum may well be condoned under sections 5 and 14 of the Limitation Act when the order sought to be impugned is illegal on the face of it.

5. As against that, the learned counsel appearing on behalf of the respondents argued that filing or prosecution of appeal in a wrong forum even in good faith or on account of mistaken advice of counsel does not furnish a justification for condonation of delay, therefore, the appeal being hopelessly time-barred is liable to be dismissed. The learned counsel to support his contention placed reliance on the cases of Bashir Ahmed v. Muhammad Sharif and 4 others (PLD 2001 Supreme Court 228), Mst. Khadija Begum and 2 others v. Mst. Yasmeen and 4 others (PLD 2001 Supreme Court 355) and Sheikh Muhammad Saleem v. Faiz Ahmad (PLD 2003 Supreme Court 628). The learned counsel, however, could not defend the impugned order on merits.

6. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.

7. A perusal of the plaint reveals that the appellants in their suit have claimed a specific amount as their share, as well as monthly income thereof, in the business left by their propositus. The averments made in the plaint clearly suggest that a serious triable issue has been raised by the appellants which cannot be decided without regular proceedings that too before the submission of written statement, therefore, there was hardly any need or justification for the learned trial Court to short-circuit the matter by proceeding with such an indecent and un-called for haste.

8. Now the question which crops up for our consideration is whether the appellants pursued their remedy in good faith and with due diligence in a wrong forum and as such the time consumed therein is liable to be condoned'? We will answer this question in the affirmative as according to the record, the appellants soon after the announcement of the order applied for its attested copy and after getting it, filed an appeal in the Court of the learned District Judge. The relevant order-sheets of the learned District Judge also indicate that the appellants have been pursuing their appeal in the said forum with due diligence. The moment it transpired that it was filed in a wrong forum, they asked for its return and soon thereafter presented it before this Court. There is nothing on the record of this Court as could give an indication that the appellants acted with negligence, therefore, we will not subscribe to the argument of the learned counsel for respondents that filing or prosecution of appeal in a wrong forum even in good faith or on account of mistaken advice of counsel does not furnish a justification for condonation of delay.

9. In the case of Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584, a Bench of the Hon'ble Supreme Court consisting of 3 Hon'ble Judges while dealing with a similar aspect held as under:- "4.The appellants' case is that they entrusted the case to their learned counsel, who after completion of the file, instituted the same in the Court of the learned District Judge; that the appellants themselves were not posted with the knowledge of the provisions of law as to the pecuniary jurisdiction of the District Judge to entertain the appeal, and they wholly depended on their counsel. The delay has been thus, sought to be excused on the plea that the appeal was instituted in the District Court on the mistaken advice of the counsel. In order to plead that the latter was not negligent, it has been asserted that the value of the suit for the purpose of the court-fee and jurisdiction was neither incorporated in the decree sheet nor explicity shown in the judgment of the trial Court. Conversely, the learned counsel for the respondents has dubbed it a case of gross negligence on the part of the appellants and their counsel, and added that the mistaken advice of the counsel cannot furnish a good ground for condonation of delay.

5. Diligence is a state of human conduct. What should be the standard for assessing the behaviour of an appellant to style him as diligent. Because of fluidity of the notion of diligence, it is difficult to set up a precise yardstick. Whether or not litigant has acted diligently and with care, would differ from case to case. Speaking broadly, a person may be said to have acted diligently, when he has informed himself of all relevant factors, taken all obvious steps and precautions, characterized by a degree of effort, as in a given situation a reasonable person would do. But, the epithet of "reasonable" opens wide the measure of application of this yardstick, on the factual plane, for the word "reasonable" is not susceptible of any precise definition. Etymologically, it signifies according to reason, which expression itself is open to difference of opinion. Whether or not a person has acted diligently, in ultimate analysis, would depend on the circumstances of each case and cannot be determined on the foundation of any judicial syllogism.

6. The criterion of "due diligence" for enlargement of time is prescribed by section 14 of the Limitation Act, which upon its terms applies only to the suits and applications and not to the appeals. On the other hand section 5 is applicable to the appeals but it does not apply to suits. The question of condonation of delay, therefore, has to be examined on the basis of section 5 and not section 14 of the Limitation Act. Not unoften, while examining the question of condonation of delay, in filing the appeal, the Courts have been invoking the principles underlying section 14 of the Act. The High Court has declined to condone the delay entirely on the touchstone of section

14. It is, however, to be remembered that expression "due diligence" and "good faith" appearing in section 14 do not figure in section

5. The condition prescribed in the latter section for its applicability is "sufficient cause" but what is sufficient cause is not capable of connotation, with exactitude and would differ from case to case. We; may observe that filing of appeal in a wrong Court on account of mistaken advice tendered by the counsel canvassed on behalf of the appellants for condonation of delay by itself would not attract section 5 but when the litigant and the counsel have acted with due care and caution and their conduct does not smack of negligence, the institution of the appeal in the wrong forum may constitute a "sufficient cause" within the meaning of section 5 of condonation of the delay."

10. Assuming for a while that the appellants did not act with due diligence by prosecuting their remedy in a wrong forum, nonetheless, they, before it was too late, could be put on the right track by the learned District Judge, the day the memorandum of appeal was presented before him. This is what preliminary hearing stands for. In any case when it was entertained and even admitted by the learned Judge without adverting to its competency on account of his pecuniary jurisdiction, all the time so consumed from its entertainment to its return in his Court, cannot be debited in the account of the appellants, and thus they cannot be allowed to suffer for the act of the Court. Had it been returned on the first date of hearing the appellants could have presented it in this Court well within time. Since the time was consumed due to the act of the Court, it will certainly constitute a sufficient cause for condonation of delay as according to the principle enshrined in the maxim actus curiae neminem gravabit, `an act of the Court shall prejudice none'.

11. This aspect of the case too was highlighted by the learned Judges of the Supreme Court in the case of Sherin and 4 others. v. Fazal Mehmood and 4 others (supra) in the following paragraphs which are also referred for the facility of reference which read as follows:- "We feel that omission on the part of learned District Judge to take timely action is the major cause of refilling of the appeal by the appellants, in the High Court, out of time. They have been the victim of the act of the Court which furnishes "sufficient cause" under section 5 of the Limitation Act, for condonation of 'delay. The fact that after receiving the memorandum of appeal from the District Court, some time was 'consumed by the appellants, in presenting it to the High Court, in the circumstances of the case is inconsequential. We are, therefore, inclined to condone the delay in presenting the memorandum of appeal to the High Court."

12. While dealing with an act of the Court the Privy Council, in the case of Jai Berhrm v. Kedar Nath (AIR 1922 P.C. 269) Made the following observation:- "One of the first and highest duties of all Courts is to take care that the act of the Court does not cause injury to any of the suitors and when the expression `the act of the Court', is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of Appeal, but the act of the Courrt as a whole from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case."

13. In the case of P.M.Amer v. Qabool Muhammad Shah and 4 others (1999 SCMR 1049), the Hon'ble Supreme Court despite holding that section 14 of the Limitation Act, does not apply to the proceedings in appeal held that in appropriate cases principle underlying' the said provision could be taken into consideration while condoning the delay in filing appeal under section 5 of the Limitation Act.

14. In the case of Syed Haji Abdul Wahid and another v. Syed Sirjuddin (1998 SCMR 2296), another Bench of the Hon'ble Supreme Court consisting of 3 Hon'ble Judges by approving the judgment rendered in the case of Sherin and 4 others v. Fazal Mehmood and 4 others (supra) held as under:

"From the preceding discussion, it emerges that the ratio decidendi in Abdul Ghani v. Ghulam Sarwar has been followed consistently. No doubt Abdul Ghani's case laid down that an advice given by the counsel against a clear provision of law would amount to gross negligence on the part of counsel and any action taken on such advice would not entitle the party to seek condonation of delay on the ground that he bona fidely acted on that advice, but the above rule laid down in Abdul Ghani's case did not exclude from its purview condonation of delay by the Court under section 5 of the Limitation Act in a case where the appellant is able to establish that he acted in good faith in pursuing his appeal before the wrong Court, as is evident from the above quoted passage from Abdul Ghani's case. Therefore notwithstanding, the fact that section 14 of the Limitation Act, in terms does not apply to proceedings of an appeal, if the appellant is able to establish that he followed the remedy before a wrong forum in good faith, the Court may condone such delay in filing of the appeal treating it as "sufficient cause" in such cases would depend on the facts and circumstances of each case."

15. In the case of Karachi Electric Supply Corporation Ltd. v. Lawari and 4 others (PLD 2000 Supreme Court 94), the Hon'ble Supreme Court after dealing with the expression sufficient cause, due diligence, good faith and act of the Court held as under:- "In the aforesaid admitted facts and circumstances, we are of the view that it is not a case where the appeal had been filed by the appellant before the District Judge only on account of mistaken advice of the counsel. Here the act and conduct of the District Judge and its office in entertaining the appeals on both occasions i.e. in the earlier round when the appeal was filed by the respondents and then when the appeal was filed by the appellant and District Judge deciding the appeals on both occasions on merits and not noting or raising the question of maintainability, and respondents conduct on both occasions, are also factors which led the appellant in filing the appeal before the District Judge and pursuing the same there. In our view taking all the above, facts and circumstances together, a case of sufficient cause as required in section 5 of the Limitation Act had been made out and the appeal filed by the appellant before the High Court was not liable to be rejected on the ground of limitation."

16. As we have already held that the appellants pursued their remedy in a wrong forum in good faith and with due diligence the judgments cited at the bar by the learned counsel for the respondents will not have any relevance to the case in hand as in those cases the element of good faith or due diligence .in prosecuting the remedy in a wrong fourm was completely absent.

17. Having thus viewed in this background and in. the light of the dictums referred to above, we are convinced that a case for condonation of delay is made out.

18. For the reasons discussed, above, we allow this appeal along with the C.M. set aside the impugned order and send the case back to the learned trial Court for decision afresh in accordance with law.

19. While parting with this judgment we will direct the Registrar of this Court to circulate a copy of this judgment to all the Courts of the learned District and Additional District Judges and the Clerks of the Court with the remarks that they should before entertaining any appeal ensure that it is within their pecuniary jurisdiction. H.B.T./464/P Appeal allowed.