1993 PLP 36 (MLD)

(ii) for the attachment of the said claim before judgment; and (iii) for the attachment before the judgment of the gratuity, allowances, funds and pension of the deceased. The said applications were contested by the respondents. After hearing the parties' learned counsel the learned trial Court vide order dated 11‑11‑1987 held: "In the circumstances the grant of injunction restraining the defendants from receiving the pension, gratuity and death allowances shall not be in the interest of justice. The rights of the plaintiff can be well‑secured by directing defendant to furnish security for the amount for which the suit has been filed. As seen above defendant is ready to furnish the security, therefore, the prayer for temporary injunction is rejected and the applications for attachment before judgment are disposed of in the terms that defendant No.1 shall furnish a security for the sum of Rs.5,13,000 within 15 days of this order. After furnishing of security defendant No.l can recover the pension, gratuity and other allowances payable by the Bank and the Insurance claim of the deceased."

4. Feeling aggrieved the appellant lodged an appeal in the Court of the learned District Judge, Rahimyar Khan on 16‑12‑1987. On 30‑10‑1991 the learned counsel for the appellant submitted an application before the learned District Judge for permission to withdraw the appeal, whereupon the learned District Judge made the following order: "Since the appeal is not competent before the District Court due to the valuation of the subject‑matter in suit being above Rs.2,00,000, therefore, withdrawal of appeal cannot be allowed. However, the appeal is returned to the appellant for presentation if he so desires before the Hon'ble High Court. The appeal is returned." 5.Thereafter, on 1‑12‑1991 the appeal was presented in this Court alongwith an application for condonation of delay on the ground that the appellant's learned counsel had due to misunderstanding instituted the appeal in the wrong Court.

6. I have heard the learned counsel for the appellant and have also perused the material available on record.

7. As is evident from para. No.12 of the plaint the value of the suit for the purposes of court‑fee and jurisdiction was Rs.5,12,952.78. An appeal arising out of such a suit could only be instituted in the High Court as it was beyond the pecuniary jurisdiction of the District Court. The fact remains that the appeal in question was instituted in the Court of the District Judge Rahimyar Khan instead of the High Court. Learned counsel for the appellant has submitted, that as the appeal had been filed in a wrong Court due to inadvertence, therefore, the period consumed in the said Court may be excluded from the period of limitation prescribed for appeal and the delay be condoned.

8. The admitted position is that the appeal remained pending in the District Court for about four years and thereafter when it was realised that its value for the purpose of `court‑fee and jurisdiction was much beyond the pecuniary jurisdiction of the said Court the appellant's learned counsel tried to withdraw it but the same was returned to him vide order dated 30‑10‑1991 and after about a month of the said return, on 1‑12‑1991, presented the appeal the High Court. The questions which fall for determination are: (a) Whether the appellant had been prosecuting the appeal in the wrong Court in good faith, and therefore, the period consumed in the Court of learned District Judge was to be excluded? and (b) Whether the circumstances of the case justify condonation of delay in the present case?

9. Perusal of the record shows that the appellant alongwith the memorandum of appeal had appended a copy of the plaint para. No.12 of which was manifestly clear on the point that the value of the suit for the purposes of court‑fee and jurisdiction was Rs.5,12,952.78. It is elementary that an appeal arising out of such a suit would lie in the High Court and not in the District Court. In these circumstances, I feel myself justified in holding that the appeal in the District Court had been filed due to carelessness and negligence. An act which is done with carelessness and negligence is never considered to 1,c an act done in good faith. Section 14 of the Limitation Act lays down that A where a party in good faith has been prosecuting with due diligence a civil proceeding in a wrong Court the time spent by him in the said Court would be excluded from the period of limitation. The most important ingredient of this section is that the party had been prosecuting its case in the wrong Court in good faith. The concession under section 14 ibid would therefore, be available a party only when it is established that it had been prosecuting the proceeding in the wrong Court in good faith. In the present case unfortunitately the proceedings taken by the appellant before the District Court, Acre the result of carelessness and negligence and this could not be termed as prosecuting a proceeding in good faith. The appellant therefore, is not entitled to any concession under section 14 of the Limitation Act.

10. As regards the condonation of delay under section 5 of the Limitation Act it has been argued on behalf of the appellant that the appeal had been instituted in the wrong forum due to the mistaken advice of the appellant's learned counsel as a result of which considerable time was wasted. Mistaken advice of a lawyer on the basis of which proceedings are prosecuted before a wrong forum has never been considered to be good ground for condonation o delay. In this regard I am supported by Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690; Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102; Mirza Muhammad Saeed v. Shahab‑ud‑Din and 8 others PLD 1983 SC 385; Mst. Mahmooda Begum and others v. Major Malik Muhammad‑ Ishaq and others 1984 SCMR 890; Nek Muhammad v. A.C., Jhelum and others 1985 SCMR 1493; Sardar Khan v. Khurshid Ahmed and doother 1986 SCMR 1093 and Ghulam Ali v. Akbar alias Akoor and another PLD 1991 SC

957. Learned counsel for the appellant did not find himself in ale position to controvert this legal position.

11. Further, when the memorandum of appeal had been returned to the appellant on 30‑10‑1991, the same should have been presented in the proper forum i.e. the High Court without further loss of time but surprisingly the appeal was presented after a lapse of one month. There is no explanation of any such delay at all. The appeal is liable for dismissal on this account also.

12. The upshot of the above discussion is that the appeal is hopelessly barred by time and there is no ground for any condonation of delay. The same therefore, is dismissed in limine. AA./H‑46/L Appeal dismissed.