P L D 2006 Lahore 26 (PLP)

C.M.No.417 of 2005 The main R.F.A. arises out of the judgment and decree dated 4-9-2004 passed the learned Senior Civil Judge Attock in a suit filed by the plaintiffs-respondents (herein) against defendants-appellants, for the recovery of rupees two crore.

2. Along with the main appeal, the instant CM has also been filed for condonation of delay for filing the appeal.

3. Learned counsel for the appellants submits that the appeal was filed before the District Judge Attock in the first instance, on 2-11-2004 which was subsequently returned to the appellant on 7-4-2005 for its presentation before the appropriate forum. Learned counsel further argued that on the wrong advise of the counsel the appeal was preferred before the District Court and the appellant should not be prejudiced by the act of his counsel. Learned counsel further argued that the appellant had been pursuing the appeal in the wrong forum in good faith on the assumption that the suit was decreed to the tune of Rs.5,00,000 and the counsel for the appellant misconstrued the law and keeping in view the decretal amount he filed the appeal before the District Judge. Further argued that the appellant is entitled for the benefit of sections 5 and 14 of the Limitation Act. Further added that the institution of appeal in the wrong forum is "sufficient" cause within the meaning of section 5 of the Limitation Act for condonation of delay.

4. We have heard the learned counsel for the appellants and perused the record.

5. Admittedly, the judgment and decree had, been passed by the trial Court on 4-9-2004 and the appellant had filed appeal before the District Judge, Attock which was entertained on 2-11-2004 thereafter, it was returned to the appellant on 7-4-2005 for its presentation before the High Court. The instant R.F.A. has been filed by the appellant on 21-6-2005 which was retuned to him in order to remove the objection and thereafter, it was refiled on 4-7-2005. The appellant or his counsel had retained the appeal with them without any plausible explanation. The delay in filing the appeal beyond limitation would not be condoned on the ground of prosecuting the appeal in the wrong forum. In this context, reference can be made to cases of Mst. Hawabi Y. Abdul Shakoor (PLD B 1970 Karachi 367), Sardraz Khan v. Amir Ullah Khan (PLD 1995 Peshawar 86), Muhammad Nawaz Khan v. Mst. Farrah Naz (PLD 1999 Lah. 238) and Abdul Ghani v. Mst. Musarrat Rehana (1985 CLC 2529).

6. For bringing the case within the ambit of principle governing section 14 of the Limitation Act, the appellant has to show that he prosecuted his remedy before `wrong forum' is `good faith'. In the instant case, the value for the purpose of jurisdiction has been determined/fixed as rupees two crore in paragraph No.22 of the plaint and the jurisdiction for the purpose of appeal would be determined from the value determined by the plaintiff in his plaint. The appeal against the judgment of civil Court where the subject-matter exceeds from Rs.25,00,000 would be maintainable in the High Court, therefore, the appeal was to be filed in this Court. Had the value of Rs. Two crore for the purpose of jurisdiction not been determined by the plaintiff in his plaint, then without determination of the jurisdictional value, the defendants-appellants could file the appeal before the District Judge, but in the case in hand, there is no ambiguity, the plaintiff-respondents have in their plaint determined the jurisdictional value of the suit. The limitation for the enlargement of time is prescribed in section 14 of the Limitation Act 1908 and the criteria is 'due diligence'. The provisions of section 14 of the Act are applicable to the suits and applications and not the appeals. Thus; the appellant cannot take benefit of section 14 referred to above. The principle in relation to enlargement of time in appeals is prescribed in section 5 of the said Act and the criteria is sufficient cause'.

7. In case of `Raja Karamat Ullah' (1999 SCMR 1892) (supra), it was held by the Hon'ble Apex Court that sections 5 and 14 of the Limitation Act would come into play only, if delay appeared to be condonable. It was laid down that time consumed in pursuing the appeal in `wrong forum' could not be condoned under section 5 of the Limitation Act.

8. In `Ghulam Ali's case' (PLD 1991 SC 957), it was held that time consumed in pursuing the appeal in the 'wrong forum' could not be condoned under section 5 of the Limitation Act and that the mistake of counsel could not be treated as an act done in `good faith' as the same was not done with `due care' and caution and would not amount to sufficient cause' as contemplated by section 5 of the Act. It was further held that presentation of delayed appeal was thus an act of `gross negligence' and rejection of appeal on that count was in accordance with law.

9. In Muhammad Nawaz Khan's case (PLD 1999 Lahore 238) a Division Bench of this Court while dealing with a similar question observed as under:- "It is also to be noticed that section 14 of Limitation Act, 1908 does not in terms apply to appeal but the Court can follow the principles contained therein while exercising the jurisdiction under section 5 of the Limitation Act, 1908, which requires that each and every day of delay must be explained. The memorandum of appeal was returned by the District Judge on 18-6-1992 while the appeal was filed in this Court on 30-6-1992. There is no explanation for the period between 18-6-1992 to 30-6-1992 and for this alone the delay cannot be condoned."

10. In view of the above circumstances we have no hesitation in holding that the appellants have neither acted with `due care' and caution nor with `due diligence' nor they have shown any `sufficient cause' for condonation of delay, as enjoyed by section 5 of the Limitation Act, because, as held in the aforesaid precedents, pursuing the remedy in the wrong forum on the mistaken advice of the counsel is not `sufficient cause' within the meaning of the provisions of section 5 of Limitation Act, 1908.

11. In view of the above discussion, the application (C.M. No.417/2005) seeking condonation of delay having no force is dismissed and as a sequal thereto, the appeal, being barred by limitation, is dismissed as well. H.B.T./M-1251/L??????????????????????????????????????????????????????? Appeal and Application dismissed.