1993 PLP 1603 (MLD)

We have heard the arguments and gone through the file. It has been contended by Kh. Ali Muhammad, the learned counsel for the appellants, that bona fide mistake in choosing a wrong forum is a good ground for condoning the delay. The learned counsel has relied on the following authorities:‑‑ In case reported as Lala Kishan Lal v. Tika 101 IC 750, it was held that as the appeal was filed in a wrong forum with a bona fide mistake, the limitation was condoned. In Rupa Thakurani v. Abdul Khalifa 46 IC 116, it was observed that although section 14 of the Limitation Act does not apply to appeal but if it is filed in a wrong forum with a bona fide mistake, delay can be condoned under section 5 of the Limitation Act. In Kunwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali and others A I R 1937 PC 276, the delay was condoned on the ground that as the appellant while appealing to the District Judge entertained a mistaken view with regard to valuation of the suit for appeal, it was a good cause for the condonation of delay. It was observed that as the valuation of appeal was really in excess of Rs.5,000, the appeal was‑competent to the Chief Court and not to the District. Judge. It was observed that the action of the counsel was not a gross negligence and was a bona fide mistake. In case reported as P L D 1961 Lah. 137 it was held that as to whether the appeal under the relevant statute lay to the District Judge or the High Court was shrouded in mystery and it was a difficult proposition. It was observed that the case was not of gross negligence and the delay was condoned. In case reported as Fazil Muhammad and others v. Suboh Sadiq and another P L D 1966 Lah. 542, the delay was condoned. It was held that although the negligence of the counsel in giving advice is never considered to be a good cause for the extension of time but if the wrong advice is tendered `'f after due care and caution by the counsel, delay can be condoned. In view of the facts of that case it was found that the filing of appeal in the wrong forum could not be regarded as a gross negligence because the counsel initially filed the appeal in propel forum but the same was returned to him by the Clerk of the Court of District Judge telling the counsel that the appeal was to be filed in the Court of Senior Civil Judge. In case reported as Nazar Muhammad and another v. Mst. Shahzada Begum and another P L D 1974 SC 22, it was held that the presentation of appeal by the appellant was the result of the wrong advice of the counsel who gave the said advice after consulting the book known as 'Tegore Law Lectures by Mitra' which misled the counsel and thus the delay was condoned. The learned counsel for the respondents has controverted the proposition propounded by the learned counsel for the appellants and has argued that cases where the advice of the counsel can be regarded the result of gross negligence, the delay cannot be condoned. The learned counsel for the respondents contended that as in the instant case the provisions of section 36(1)(a) contained in the Azad Jammu and Kashmir Courts and Laws Code of 1949 are clear with regard to the forum of appeal, the delay cannot be said to have caused by a bona fide mistake because the relevant statutory provision is self‑speaking and does not suffer from any ambiguity; besides there are so many authorities of the High Court of Azad Jammu and Kashmir and this Court on the point wherein it has been held that the appeal in a case where the value of the original suit is more' than Rs.5,(100 would he competent to the High Court and not to the District Judge. The learned counsel for the respondents has cited the following authorities in support of his contention:‑‑ In case reported as Masud Ahmad and 2 others v. United Bank Limited 1992 S C M R 424 the case‑law on the subject was discussed by this Court in detail and it was opined that where the provision of law is clear, the question of condonation of delay in filing the appeal under section 14 would not arise; the delay can be condoned only if the litigant is misguided by some practice of the Court or by erroneous judgment. Identical view was taken in an unreported judgment of this Court entitled Farooq Ahmed v. Mst. Rashida Bibi Civil Appeal No. 6 of 1998, decided on 19‑2‑1989. In the aforesaid case too the appeal was filed before the District Judge but subsequently the same was returned and was filed in the High Court. The condonation in filing the appeal was sought on the ground of bona fide mistake and it was held as under:‑‑ "We have given our due consideration to the arguments raised by the learned counsel for the parties. It may be observed that there may be cases where even an experienced counsel may be misled regarding limitation on account of ambiguity in law or due to divergent judicial pronouncements. But where the law is well‑settled and there is no ambiguity regarding the correct forum for filing the appeal, the case does not come within the ambit of bona fide mistake; rather it would be a case of `gross negligence'. In view of the relevant provision embodied in the Courts and Laws Code Act, there is no ambiguity that the appeal was competent to the High Court and not to the District Judge. The learned counsel for the appellant could have avoided the mistake by resorting to the relevant provision of law. Thus, the argument that the counsel for the appellant took due care and caution while choosing the forum for filing the appeal cannot be accepted. In the aforesaid view of the matter we see no reason to differ from the view taken by the High Court and hold that in the instant case the mistake in choosing the wrong forum was the result of gross negligence on the part of the counsel for the appellant and thus cannot be regarded as 'bona fide mistake'. It may be observed that the counsel for the party is expected to be careful in such cases; otherwise the aggrieved party, as has been held in some of the authorities, may sue his counsel for damages. " Identical view was also taken in an unreported judgment of this Court entitled Muhammad Hussain Khan v. Abdul Karim Civil Appeaf No.41 of 1978, decided ou 7‑3‑1984. In case reported as Ghulam Ali v. Akbar Ali P L D 1991 SC 957, it was held that delay in filing appeal in case of wrong forum can only be condoned if the mistake of the counsel does not fall within the purview of gross negligence. It was further observed that if the mistake is result of gross negligence, it cannot be said to be a bona fide mistake. In Mst. Mahmooda Begum and others v. Major Malik Muhammad Ishaq and others 1984. S C M R 890 it was held that gross negligence on the par: of the counsel cannot be regarded as ill‑advice and if his client suffers, he can seek his redress against the counsel but in cases of gross negligence the delay cannot be condoned. The learned counsel for the appellants has also submitted that as the decree for the recovery by the trial Court has been passed in terms Rs.1,000 per month from 27‑9‑1989 to 30‑9‑1990, it resulted in a mistake while choosing the forum of appeal. It may be stated that under section 36(1)(a), as amended, it is clearly mentioned that where the value of the original suit is more than 5,000 rupees, the appeal shall lie to the High Court. It is evident that the forum of appeal is to be chosen in view of the valuation of original suit which in the instant case is Rs.21,000 and not in view of the decretal amount. The aforesaid view is also confirmed by the authorities reported as Pitam Singh and another v. Bishun Narain and others A I R 1931 Oudh 58 and Ganga Ram v. Madan Lal A I R 1953 J&K 13, wherein it has been observed that forum of appeal is to be determined in view of the valuation of the plaint only. It may be stated that in the instant case, irrespective of the aforesaid authorities, the question of forum of appeal could be easily determined from the provisions contained in section 36 of the Courts and Laws Code and thus it cannot be said by any stretch of imagination that this was a case of bona fide mistake. In the light of what has been stated above we find no force in this i appeal; it is hereby dismissed with costs. A.A./7/S.C.A. Appeal dismissed.