P L D 1952 Baghdad﷓ul﷓Jadid 43 (PLP)

ABDUL RASHID, J.

Mst. Mahmooda Begum plaintiff- respondent brought a suit against Mirza Habib Ullah appellant- defendant for recovery of Rs. 5,000 as her dower and Rs. 150 as maintenance charges for the Iddat period, in the Court of the Senior Sub‑Judge, Bahawalpur. In the plaint she stated that her marriage with the defendant had been duly consum mated and that subsequent to the consummation the defendant divorced her and therefore he was liable to pay the amount. In his written statement the defendant admitted his Nikah with the plaintiff and also the amount of dower fixed on the occasion, but he denied the factum of consummation or that she had been later on divorced by him. The trial Court framed the necessary issues on the pleadings and recorded the evidence of both the parties thereon. In the course of trial, the defend ant in his statement as witness admitted to have divorced his wife. After recording the evidence on both sides the Court arrived at the finding that the marriage in question had been duly consummated and passed a decree for Rs. 5,000 as the amount of dower in favour of the plaintiff and dismissed the rest of her claim for Rs. 150 as the diet‑money for the Iddat period. Against this decree the defendant preferred this first appeal through his counsel Pirzada Muhammad Saleem in the Court of the District Judge, Bahawalpur, within limitation period on 25th April 1951, which was on 11th November 1951, returned by him for presentation to the High Court on the ground that the original value of the suit, which determines the Court of appeal, exceeded his pecuniary jurisdiction. Mr. Saleem has now come up with this appeal to this Court. The preliminary objection raised by Mr. Mustafa Khan counsel for the opposite party is that the appeal is time‑barred as it has been presented to this Court long after the limitation period. Mr. Saleem counsel for the appellant has replied that he had originally filed this appeal in a wrong Court through bona fide mistake, as he thought that the appeal lay to the District Court on the decretal amount of Rs.5.000 and not on the jurisdictional value as given in the plaint. He therefore contends that this honest mistake on his part constitutes "sufficient cause" within the meaning of section 5, Limitation Act and entitles his client to the extention of time. In support of his contention he relies on Sunderbai and another v. Collector of Belgaum and another's A I R 1918 P C 135 and Kunwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali and others A I R 1937 P C

276. In these rul ings it was observed by Their Lordships of the Privy Council that when an appeal was presented in a wrong Court owing to a mistaken legal advice, but later on it was presented in right Court and it was by then time‑barred, the counsel could not be deemed as negligent in valuing the appeal and thus it might amount to "sufficient cause" for the purpose of section 5, Limitation Act. These cases, however, as the learned counsel for the respondent contends, have been decided on their own facts and do not lay down a general principle that the mistaken advice of a counsel, even if not given with due care, and atten tion is by itself sufficient to extend the period of limitation. The counsel for the respondent has on the other hand referred us to a large number of authorities of different High Courts which clearly lay down that a mistaken advice of a counsel regarding the valuation of appeal is not a bona fide mistake as it cannot be said that the advice was given with due care and attention or that he did not act with gross negligence in the matter. Mr. Mustafa Khan Advocate has also invited our attention to R. M. A. L Firm v. Ko Sham and others A I R 1940 Rang. 14, in which various authorities cited on both sides were fully discussed on the point and according to that ruling, the pro position of law as laid down in Sunderbai and another v. Collector of Belgaum and others A I R 1918 P C 135, is clearly distinguishable on the ground that in the present case the appellant did not take the advise of his counsel, but as would appear from the record, he merely asked his Vakil Pirzada Muhammad Saleem to file the appeal and left it entirely to him to take the necessary steps. In this case as the litigant appears to have given full authority to his Advocate to file and prose cute the appeal on his behalf, he must take the responsibility for the consequences which resulted on account of the gross negligence and carelessness of his counsel to file the appeal in right Court. Now this act of the Advocate cannot be regarded as a bona fide and honest or excusable mistake on his part, as he did not act with due care and attention and did not take the trouble to consider whether the value of the suit or the decretal amount determined the jurisdiction of the form of appeal. We are therefore of the view that in the present case the mistake of the counsel for the appellant amounts to gross negligence on his part and does not entitle him to the indulgence of extension of time under section 5, Limitation Act, Relying therefore on the principle laid down in Said Muhammad v. Goma etc., P L D 1952 B J 8 ; Municipal Board Lucknow v. Kali Krishna Narain and others A I R 1944 Oudh 135, R. M. A. L. Firm v. Ko Sham and others A I R 1940 Rang. 14; Amrit Lal and others v. Phool Chand and others 1938 Lah. 81, we hold that the appeal is clearly time‑barred and must be dismissed on that point. The next question is as regards the facts of the case. Dr. Khalil Ahmad father of the plaintiff, Muhammad Naim her brother, Rashida Begum her sister, Muhammadi Begum her mother and the appellant herself have appeared in evidence, who unanimously testify that after the Nikah ceremoney the consummation of the marriage took place in the house of the bride and that the husband passed 8 or 10 nights there in a lonely place in the company of his newly wedded wife, The case for the appellant as testified by his witnesses is that just after the recital of the Nikah, the appellant left by car to Bahawalnagar and from there to Dahranwala where he remained for 8 or 10 days. In support of this story the appellant's counsel has drawn our attention to a part of the statement of Muhammadi Begum in which she says that shortly after the Nikah cere mony, the appellant left for Bahawalnagar, where from he returned on the following day and lived in her house continuously for 5 or 6 days, where marriage was consummated. Thus the evidence of this woman taken as a whole is not in any way different from the evidence of the remaining witnesses for the plaintiff, whose testimoney should be regarded as quite natural on this point. It is also quite improbable that the appellant should have left the place immediately after the Nikah and should have remained away from his newly wedded wife for so long a time. Thus the lower Court was quite competent to weigh the evidence of both the parties on this point, and arrived at n right conclusion in its finding that the consummation had in fact taken place in the house of the respondent. In these circumstances we uphold the decree granted by the lower Court and dismiss the appeal with costs. Counsel for both the parties present. Announced. A. H. Appeal dismissed.