1975 PLP 259 (SCMR)
Ch. MUHAMAD SHARIF-Petitioner Versus MUHAMMAD ALI KHAN AND OTHERS- Respondents
| Citation | 1975 PLP 259 (SCMR) |
| Forum / Court | High Court |
| Bench Members | Hamoodur Rahman, C J and Muhammad Gul, J |
| Parties | Ch. MUHAMAD SHARIF-Petitioner Versus MUHAMMAD ALI KHAN AND OTHERS- Respondents |
| Primary Law | Limitation Act (IX of 1908) |
Q1: What are the key laws and sections cited in 1975 PLP 259 (SCMR)?
This judgment primarily cites: Limitation Act (IX of 1908) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 1975 PLP 259 (SCMR)?
The case was heard and decided by the High Court bench comprising: Hamoodur Rahman, C J and Muhammad Gul, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 1975 PLP 259 (SCMR) (Ch. MUHAMAD SHARIF-Petitioner Versus MUHAMMAD ALI KHAN AND OTHERS- Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Mian Nusrat Ullah, Advocate Supreme Court instructed by Rana Maqbool Ahmad Qadri, Advocate-on-Record for Petitioner.
- Nemo for Respondents Nos. 1 and 3.
- Sh. Maqbool Ahma-l, Senior Advocate Supreme Court instructed by Masud Akhtar for Respondents Nos. 2 to 4.
- Date of hearing : 17th February 1975.
- Mian Nusrat Ullah, Advocate Supreme Court instructed by Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioner.
- Sh. Maqbool Ahma‑l, Senior Advocate Supreme Court instructed by Masud Akhtar for Respondents Nos. 2 to 4.
- The petitioner went up in appeal on the 8th May, 1973 but in spite of the fact that the amount of the mortgage was Rs. 50,000 the appeal was filed in the Court of the District Judge, Rahimyar Khan. The District Court hate no jurisdiction to entertain, the said appeal but before the Memorandum of Appeal could be returned to the petitioner, his Advocate, on the 13th October, 1973, himself applied for taking back the Memorandum of appeal and presented it to the High Court on 15‑101973 with a prayer for condonation of delay under section 14 of the Limitation Act.
- The learned Advocate who acted for the petitioner in the Courts below has, in pursuance of the order of this Court dated 2nd December, 1974, now put in an affidavit saying that after enroiment as a pleader, he 'worked mostly on the Rehabilitation and Settlement side and did very little work in criminal and civil Courts but in the year 1 70 he switched over to the regular Courts and mainly worked ill criminal Courts. He appeared in very few civil cases of small valuation which were invariably appealable to the District Judge. This was the first appeal of high valuation filed by him l in the Court of the District Judge under a misconception that since the subject‑matter was only a decretal amount in execution proceedings, the District Judge would have jurisdiction.
- He was further misled into this belief by the fact that the office of the District Judge did not return the memorandum immediately, as is usually done in subordinate Courts, out the matter was dealt with on the judicial side as a properly filed appeal. The learned Advocate, however on coming to now of his mistake himself applied for the return of the memorandum of appeal.
- We have heard the learned counsel at length and carefully examined all the decisions referred to by him and have come to the conclusion that this is a clear case in which the learned Advocate showed gross lack of care and his failure in such a case to acquaint himself with the relevant provisions of the law relating to the jurisdiction of the Courts amounted to negligence' on his part.
- In the case of Nazar Muhammad v. Mst. shahzada Begum (P L D 1974 S C 22s), this Court also followed the Privy Council but again that was a case in which the wrong period of limitation had been calculated even after reference to a recognized textbook on the law of limitation. There is no evidence here that the learned Advocate concerned consulted any book or law on the point.
Headnotes / Summary
appeal from the judgment and order of Lahore High Court, Lahore, dated the 1st February 1974, in R. F. A. No. 26-73/SWP). -- S. 14-Condonation of delay-Petitioner's counsel alleging to have appeared only in few civil cases of small valuation appeal-able to District Judge-Present appeal being first of its kind filed by him, counsel alleging misconception on his part with regard to venue of same and to have taken it back and filed in High Court immediately on discovery of his mistake--Case, held, one of gross lack of care on counsel's part--Failure to acquaint himself with relevant provisions of law relating to jurisdiction of Court --Amounted too negligence on part of counsel--High Court, held, properly exercised its discretion in refusing to condone delay. Kunwar Rajendra Bahudur Singh v. Rai Rajesriwar Ball A I R 1937 P C 276 and Nazar Muha-pmad v. Alst. Shahzada Begurn P L 1) 1974 S C 22 distinguished.
Judgment & Decree
HAMOODUR RAHMAN, C. J.‑This is a petition for special leave to appeal from the judgment and order of a learned Single Judge of the Lahore High Court dismissing a second appeal as being barred by time. The circumstances leading to the said second appeal were as follows :‑‑ The petitioner, it appears, had morttgaged a half petition of his Bungalow No. 5 situated to General Public Colony, Rahimyar Khan, wish the respondents for Rs. 5J.O,iO. The said respondent brought a suit for foreclosure and sale on the l0ta September, :971 in which a preliminary decree was (sassed on the 24th ,*lay, 19,jZ and the petitioner, on his own request, eras given time for payment of the mortgage money. He filed to make the payment by the date fixed. On his request, however, the time was further extended up to the 28th October, 1972, he again failed to make the payment within the aforesaid time but obtained another extension of time up to the 26th February, 1973. Even on this occasion, he failed to pay. Thereupon, the respondents moved an application on the 6th March, 197.1 under Order XXXIV, rules 2 and 3 for a decree for foreclosure. The appellant was duly served with a copy of the said application and was given time up to the 28th March 1973 to make a reply, but, instead of making a reply,, he absented himself, Final decree for foreclosure was then passed on the 3rd April, 1973. The petitioner went up in appeal on the 8th May, 1973 but in spite of the fact that the amount of the mortgage was Rs. 50,000 the appeal was filed in the Court of the District Judge, Rahimyar Khan. The District Court hate no jurisdiction to entertain, the said appeal but before the Memorandum of Appeal could be returned to the petitioner, his Advocate, on the 13th October, 1973, himself applied for taking back the Memorandum of appeal and presented it to the High Court on 15‑101973 with a prayer for condonation of delay under section 14 of the Limitation Act. The High Court, after considering all the relevant decisions, came to the conclusion that the delay could only be condoned if the mistake was bona fide. In the present case the mistake was not a bona fide one. The learned Advocate who acted for the petitioner in the Courts below has, in pursuance of the order of this Court dated 2nd December, 1974, now put in an affidavit saying that after enroiment as a pleader, he 'worked mostly on the Rehabilitation and Settlement side and did very little work in criminal and civil Courts but in the year 1 70 he switched over to the regular Courts and mainly worked ill criminal Courts. He appeared in very few civil cases of small valuation which were invariably appealable to the District Judge. This was the first appeal of high valuation filed by him l in the Court of the District Judge under a misconception that since the subject‑matter was only a decretal amount in execution proceedings, the District Judge would have jurisdiction. He was further misled into this belief by the fact that the office of the District Judge did not return the memorandum immediately, as is usually done in subordinate Courts, out the matter was dealt with on the judicial side as a properly filed appeal. The learned Advocate, however on coming to now of his mistake himself applied for the return of the memorandum of appeal. We have heard the learned counsel at length and carefully examined all the decisions referred to by him and have come to the conclusion that this is a clear case in which the learned Advocate showed gross lack of care and his failure in such a case to acquaint himself with the relevant provisions of the law relating to the jurisdiction of the Courts amounted to negligence' on his part. The learned counsel has relied on the decision of the Privy Council in Kunwar Rajendra Bahadur Singh v. Rai Rujeshwar Bail (A. I R 1937 F C 276) to support his contention that action taken "in good faith on the advice of counsel honestly given" is a sufficient cause for condoning delay the finding in that case was that the view taken by appellants' counsel was not unreasonable and he could not be doomed to leave been negligent in valuing the appeal. The facts here are altogether different. f he correct value was knows:. In the case of Nazar Muhammad v. Mst. shahzada Begum (P L D 1974 S C 22s), this Court also followed the Privy Council but again that was a case in which the wrong period of limitation had been calculated even after reference to a recognized textbook on the law of limitation. There is no evidence here that the learned Advocate concerned consulted any book or law on the point. In the circumstances, the High Court was clearly right in refusing to condone the delay. We see no valid ground to interfere. The High Court has exercised its discretion in accordance with sound judicial principles. This petition is accordingly dismissed. The caveator prays for costs. There will be no order as to cost, Petition dismissed.