1998 PLP 2296 (SCMR)

SAIDUZZAMAN SIDDIQUI, J.

The above direct appeal under Article 185 (2) of the Constitution of Islamic Republic of Pakistan is filed before this Court to question the judgment of the learned High Court of Balochistan, dated 14-11-1995.

2. The respondent instituted Civil Suit No.97 of 1990 before the Civil Judge, Quetta, seeking specific performance of an agreement of sale in respect of Property Nos.9-14/81, 9-14/82, 9-14/83 and 9-14/84, situated at linnah Road. Quetta. Although there is no specific paragraph in the plaint showing the valuation of the suit but from the averments in the plaint, it appears that the consideration mentioned in the agreement was Rs.13,25,

000. The respondent examined Kazi Allah Bakhsh (P.W.1), Gul Muhammad (P.W. 2) and Noorul Haq (P.W.3). The last mentioned witness was examined by the trial Court on 29-5-1993. It appears from the order sheets of the trial Court produced before us that one witness from Member Board of Revenue (M.B.R.) was present before the Court on 11-4-1994. but could not be examined as he had not brought the record. The witness, however, undertook to produce the record on the next date. As no other witness of the respondent was present, therefore, the trial Court closed the plaintiff's side except for the statement of plaintiff/respondent and the witness summoned from M.B.R. and case was posted for 20-4-1994. On 20-4-1994, the witness Muhammad Ibrahim, summoned from M.B.R., was present in Court but could not be examined for want of time and case was adjourned to 4-5-1994. On 4-5-1994, the witness Ibrahim from M.B.R. failed to appear before the Court and, therefore, a show-cause notice was issued to him and respondent was directed to summon this witness for 10-5-1994. It appears that the witness, later in the day appeared before the Court on 4-5-1994 and offered his explanation for non-appearnce which was accepted and accordingly, the show-cause notice was discharged and his statement was recorded the same day. However, the second order passed by the Court does not show presence of the parties and their counsel. On. 10-5-1994 when the case was taken up by the Court, the witnesses of the plaintiff/respondent were not present. The Court noted that the time allowed by the High Court to complete the proceedings had expired and the plaintiff/respondent had failed to complete his evidence. The evidence of plaintiff's other official witnesses was accordingly, closed and for reply of some application which was pending and for statement of plaintiff/respondent as a last chance. the case was adjourned to 6-6-1994. On 6-6-1994 when the case was taken up by the Court, the plaintiff/respondent and his counsel were found absent. The Court found that the plaintiff/respondent was delaying the proceedings deliberately and accordingly, dismissed the suit under Order 17, Rule 3, C.P.C.

3. The respondent - filed appeal against the judgment and decree of trial Court before the District Court. The District Judge, Quetta, by order dated 28-8-1995, rejected the appeal holding that the appeal lies to the High Court. It appears that the respondent moved application before the District Judge, Quetta, for return of the plaint in view of the findings that appeal should have filed before the High Court. The learned District Judge, Quetta, by order dated $-10-1995 ordered for return of memo of appeal to the respondent within 7 days, after retaining a photostat copy of the same. The memo of appeal was accordingly, returned to the respondent on 15-10-1995 and he presented the same before the High Court on 16-10-1995 which was registered as R.F.A. No. 37 of 1995.

4. A learned Division Bench of the High Court of Balochistan by order dated 14-1-1995, allowed the R.F.A. and after setting aside the judgment and decree of the trial Court remanded the case with direction to parties to appear before the trial Court on 26-11-1995 on which date the statement of respondent was to be recorded and case was to be disposed of within 3 months.

5. Against the judgment of the High Court, the above appeal was filed as of right before this Court and a learned Judge in Chambers directed that the case may proceed before the trial Court but judgment may not be passed pending disposal of the appeal. We have heard Mr. M.K.N. Kohli, for the appellants and Mr. Shakeel Ahmed, Advocate Supreme Court for respondent.

6. Mr. Kohli, the learned counsel for the appellants, contended that the learned Judges of the High Court could not condone the delay in filing the appeal in view of the law laid down by this Court in following cases:-- (i) Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102 (ii) Aizad Bakhsh v. Muhammad Afzal 1985 SCMR 1003 (iii) Islam Din v. Allah Nawaz 1988 SCMR 2 (iv) Ghulam Ali v. Akbar PLD 1991 SC 957

7. The learned counsel further contended that provisions of section 14 of the Limitation Act were not applicable to the appeal and, therefore, the condonation of delay by the High Court was not proper. In support, the learned counsel relied -on the decision of the Azad Jammu and Kashmir Supreme Court reported as Masud Ahmed v. United Bank Limited (1992 SCMR 424). The learned counsel for the respondent on the other hand, supported the decision of High Court.

8. The learned Judges of the High Court of Balochistan while condoning the delay in filing the appeal before the High Court and allowing the R.F.A. filed by the respondent against the judgment and decree of. the trial Court observed as follows:-- "We have carefully gone through original record of this case and considered arguments advanced by learned counsel for parties besides case-law relied upon by them. Firstly it may be seen that five witnesses had been undisputedly examined during trial but surprisingly suit has been dismissed without making any reference to said evidence, vide order, dated 6th June, 1994 which is apparent by non-speaking and perfunctory. Trial Court appears to have passed said order/decree in purported exercise of power under Order XVII, Rule 3, C.P.C For convenience said provision is reproduced below: '

3. Court ma proceed notwithstanding either party fails to produce evidence etc. --Where any party to a suit to whom time has been granted fails to produce .his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default proceed to decide the same forthwith.' Obviously Court enjoins pleanary authority to fore-close right or benefits flowing to defaulting party and in appropriate cases decide the matter forthwith. Evidently while exercising such powers concerned Court/Forum, is under obligation to properly consider entire material so far brought on record. There is absolutely no jurisdiction vested in the Court to ignore the evidence already adduced by either party. Unfortunately in the instant case learned trial Court has glaringly disregarded essential requirements while passing impugned judgment/order. Since evidence available on record has not even been touched or considered, the impugned decree dated 6-6-1994 passed by learned Senior Civil Judge is completely devoid of lawful authority and a nullity in the eye of law. In this behalf principle of law enunciated in case PLD 1978 SC page 89 is highly instructive, and applies with force to the facts of this case. No doubt, appellant should have taken appropriate measures to seek prescribed remedy before Court of competent jurisdiction with utmost diligence. We feel that learned counsel appearing before First Appellate Court on behalf of appellant was sufficiently ignorant about amendments concerning pecuniary jurisdiction introduced in section 18 of the Civil Courts Ordinance, 1962. Keeping in view nature of impugned decree which reflects gross disregard to law, the circumstances of instant case are distinguishable from cases relied upon by learned counsel for respondents. Thus, on the evaluation of all the factors and ratio decidendi in case 1995 SCMR 584, we are inclined to condone the delay mainly because original order was nullity and question of limitation in peculiar circumstances has no relevancy. However, we feel that respondents have been unnecessarily dragged on account of wrong advice or ignorance on the part of appellant or his counsel. Therefore, they are entitled to be adequately compensated. For the above reasons, the appeal is partly accepted and impugned judgment/decree dated 6-6-1994 is set aside subject to payment of Rs.8,000 (Rupees eight thousand) as costs which shall be conditional."

9. The main consideration which weighed with the learned Judges of the High Court in condoning the delay in filing the appeal was, that the order passed by the trial Court was a nullity in the eyes of law. The learned counsel for the appellants admits that the plaintiff/respondent had already examined five witnesses in the case. The learned trial Court, however, while dismissing the suit under Order 17, Rule 3, C.P.C., passed the following order:--

10. From the above order, it is quite clear that the trial Court while dismissing the suit of plaintiff under Order 17, Rule 3, C.P.C. failed to advert to the evidence already on record. The evidence in the case having been led, the trial Court could not dismiss the suit without considering the evidence on record. Therefore, to this extent the learned Judges of the High Court were justified in considering the judgment and decree passed by the trial Court a nullity in the eyes of law. The learned counsel for the appellant, however, contended that filing of the appeal before the District Judge was a negligent act of the counsel and, therefore, delay in filing the appeal before the High Court after it was returned by the District Judge, could not be condoned in view of the law laid down by this Court. We will, therefore, examine the cases relied by the learned counsel for the appellants.

11. In Abdul Ghani v. Ghulam Sarwar (supra), the petitioner filed a suit for pre-emption which was decreed. He appealed against the judgment and decree but instead of filing appeal before the High Court, he filed it before the District Judge, which was returned for want of jurisdiction. He then filed the appeal before the High Court, which was beyond time, and accordingly, the High Court dismissed it as time-barred. In petition for leave to appeal before this Court, petitioner claimed that he was misled by the entertainment of appeal and grant of ad interim injunction by the District Judge. He also pleaded that he presented the appeal before the District Court bona fidely under the advice of his counsel. This Court did not accept the contentions in view of clear language of section 18 of the West Pakistan Civil Courts Ordinance, 1962 which governed the filing of appeal in the case. The Court further observed that if in spite of clear language of section 18 of the Civil Courts Ordinance, the counsel advised for filing of appeal in District Court, it was gross negligence. However, on the question whether presenting a proceedings in good faith before a wrong forum could amount to sufficient cause within the meaning of section 5 of Limitation Act, the observations of the Court were as under:-- "It is true that this section does not define sufficient cause but the meaning of this expression is too well-known to need recapilulation, and we would only refer here to the observations of Kaikraus, J. on this question in Ata Ullah v. Custodian Evacuee Property (PLD 1961 SC 236). "Under section 5 There has to be a finding of sufficient cause. In pre-partition India sufficient cause had been defined as circumstances beyond the control of the party and I do not know of any case wherein this definition of sufficient cause had been rejected.' We re-affirm these observations and we may explain here that the burden is on the appellant to prove that his delay in filing his appeal was on account of circumstances beyond his control, because, as observed by Sir George Rankin in Kunwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali and others (AIR 1937 PC 276) ....in applying section 5 (of the Limitation Act.)... the analogy of section 14 (which applies only to suits) is an argument of considerable weight.' Section 14 permits the exclusion of time only for proceedings 'prosecuted in good faith, therefore in order to make out sufficient cause under section 5 an appellant must prove that he had acted in good faith in presenting his appeal in the wrong Court. Good faith has been defined in clause (7) of section 2 of the Limitation Act as: 'good faith' nothing shall be deemed to be done in good faith which is not done with due care and attention.' Now if an appellant proves that he filed his appeal in the wrong Court despite due care and attention it means that the presentation of the appeal in the wrong Court was on account of circumstances beyond his control. No doubt, what such circumstances are must depend on the facts and circumstances of each case, and in Kunwar Rajendra Bahadur Singh's case, Sir George Rankin set aside the finding of the Chief Court that the appellant's Advocate had been very negligent in filing the appeal in the wrong Court because the facts relevant to the question of the Court in which the appeal was to be filed were very complicated. Similarly, an appellant can bring his case under section 5 if he can show that there is some ambiguity in the law governing the forum in which the appeal is to be filed. Or, to take another example, an appellant can rely on section 5, if he can show that he was misguided by the practice of the Court or by an erroneous judgment of the Court. But, in the instant case, the provisions of section 18 of the West Pakistan Civil Courts Ordinance are plain beyond any doubt and as there is also no complication whatsoever about the facts relevant to the question of the proper forum for filing the appeal, it is clear that the presentation of the appeal in the District Court was an act of gross negligence." 12 In Aizad Bakhsh y. Muhammad Afzal (supra), the appellant's counsel in the first instance filed appeal before the District Judge but after one year himself pointed out to the Court that it had no pecuniary jurisdiction to hear the appeal and then took it back and filed it in the High Court. The High Court refused to condone the delay in filing the appeal. In petition for leave to appeal this Court following Abdul Ghani v. Ghulam Sarwar (supra) and Muhammad Saeed v. Shahab-ud-Din (PLD 1993 SC 385) held that the filing of the appeal before the District Court was an act of gross negligence and, therefore, High Court rightly refused to condone the delay and consequently, refused to grant leave to appeal.

13. In Islam Din v. Ali Nawaz (supra), the appeal was wrongly presented before the High Court and after its return it was filed before the District Judge, the later mentioned Court condoned the delay on the ground of bona fide mistake of counsel. The High Court in second appeal set aside the order of District Judge condoning the delay and held that the appeal before District Courts as beyond time. In petition for leave to appeal, this Court declined to grant the leave relying on Abdul Ghani v. Ghulam Sarwar (supra).

14. In Ghulam Ali v. Akbar (supra), the appellant filed a suit before Civil Judge, lst Class, Lasbela, for specific performance of contract of sale and possession or in the alternative for return of Rs.29,000 and recovery of damages amounting to Rs.2,00,

000. The suit was dismissed with direction to respondent in the case to pay Rs.24,000 to the appellant. Against the dismissal of suit, the appellant filed appeal before District Judge, Khuzdar, which was dismissed. In second appeal filed before the High Court, objection was taken that appeal before the District Judge was not competent as the subject-matter exceeded Rs.50,

000. The High Court accepted the contention with the result the judgment and decree passed by the District Judge was set aside and appellant was allowed to approach the 1st Appellate Court for return of the memo. of appeal. Thereafter, the appeal was presented to the High Court but it was dismissed as time-barred and the plea of mistaken advice of the counsel was rejected. The appeal before this Court against the order of High Court, was rejected and reliance was placed on the judgment of this Court in Abdul Ghani v. Ghulam Sarwar.

15. 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 bonafidely 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 t case where the appeliant is able to establish that he acted in good faith in pursuing his appeal before the wrong Court, as is evident from the abovequoted passage from Abdul Ghani's case. Therefore, notwithstanding, the fact that section 14 of 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' under section 5 of the Limitation Act. What would constitute 'sufficient cause' in such cases would depend on the facts and circumstances of each case. At this stage, we may mention here that in a later decision of this Court in the case of Sherin v. Fazal Muhammad (1995 SCMR 584) a Bench of this Court consisting of 3 Hon'ble Judges, without referring to the decision in Abdul Ghani's case expressed the view on the question, whether the delay in pursuing remedy before a wrong forum visualized under section 14, which applies to suit, could be extended for condoning delay in filing the appeal under section 5 of the Limitation Act, as follows:-- "

4. The appellants's 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 purposes of the court-fee and jurisdiction was neither incorporated in the decree sheet nor explicitly 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. 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, charaterized by a degree of effort, as in a given situation, a reasonable person could 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 applied 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 un-often, 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 case' within the meaning of section 5 for condonation of the delay."

16. The learned counsel for the appellants contended that above view expressed in Sherin's case is in conflict with the view expressed by this Court in Abdul Ghani's case and as the numbers of Hon'ble Judges in both the cases were equal, the matter may be referred to a larger Bench to resolve the conflict. It is true that Sherin's case has not noticed the decision in Abdul Ghani's case. However, after examining the ratio decidendi of both cases which we have reproduced above, we are of the view that there is no conflict in the opinion expressed in the above two cases. In any case, this controversy does not arise in the present case as the judgment of trial Court was set aside and delay was condoned by the learned Judges of the High Court on reaching the conclusion that the judgment passed by the trial Court was a nullity in the eyes of law, and therefore, the bar of limitation would not apply.

17. The view taken by the High Court does not suffer from infirmity and otherwise meets the ends of justice. No case for interference with the judgment of High Court is made out. The appeal is, accordingly, dismissed. However, the direction of the High Court is modified to the extent that the respondent will pay a sum of Rs.10,000 instead of Rs.8,000 as directed by the High Court by way of costs to appellants and the trial Court will expedite the disposal of suit as early as possible. M. B. A./A-91/S Appeals dismissed.