1986 PLP 806 (MLD)

By this application under section 5, Limitation Act (Act IX of 1908), the appellants have prayed for the condonation of delay in filing the appeal in this Court. 2 In a suit for specific performance of a contract of sale, the Civil Judge 1st Class, Sialkot, on 28‑10‑1975, passed a decree in favour of the plaintiffs‑respondents on payment of Rs.36,

000. It was observed that the defendants‑appellants had agreed to sell the disputed house situated in Sialkot Cantonment area for a consideration of Rs.46,000, out of which a sum of Rs.10,000 was paid in advance. However, with regard to one of the conditions of the contract that the defendants appellants would register the sale with the Cantonment authorities after due permission within two months, it was held that the permission was deemed to have been granted and the agreement was valid In the eye of law. It may be mentioned here that the valuation of the suit for purposes of court‑fee and jurisdiction, as shown in the plaint, was Rs.46, 000.

3. It is evident from record that the appellants applied for the certified copies of the judgment and decree of the trial Court on 29‑10‑1975. They received the copies on 26‑11‑1975, and with the assistance of Mr: Muhammad Ashraf Qureshi and Syed Liaqat Ali Advocates, they filed the appeal on 27‑11‑1975 before the learned District Judge, Sialkot, which ‑ was later assigned to the Additional District Judge. On 28‑11‑1975, the record was summoned for 18‑12‑1975 and the execution proceedings were stayed. On that day, the record was not received and the appeal was adjourned to 7‑1‑1976. The record was summoned once again for 31‑1‑1976, and notices were also issued on that day, in the matter of an application for additional evidence. On that day Mr. Khalid Mahmood, Advocate appeared as an attorney of Respondent No.4 and also as counsel for the other respondents he was directed to file the power of attorney as well as a reply to the application on 2‑3‑1976. On 2‑3‑1976, Mian Naeem‑ur‑Rehman Advocate also appeared. Reply was filed and the appeal was admitted for regular hearing for 3‑4‑1976. In the meantime, the appellants had engaged Mr. Ziaullah Sheikh Advocate from Lahore as a senior counsel. On 24‑4‑1976, the learned counsel could not attend the Court incidently and on his telephonic request the case was adjourned to 12‑6‑1976, when he appeared and ultimately requested for the return of the appeal. The appeal was returned on 12‑6‑1976 and presented in this Court on 14‑6‑1976 along with an application for condoning the delay on the ground that the appeal was filed by Mst. Mahmooda Begum appellant before the learned District Judge on, a wrong advice given by her counsel of Sialkot, and since the appellant was an old Parda‑observing lady and the remaining appellants who were her children were living out of Sialkot and she alone was pursuing the case on their behalf, she in good faith acted on the wrong advice of the local counsel and filed the appeal before a wrong Court. According to her, the mistake was not deliberate and as soon as it was realised by her counsel from Lahore, he arranged for the return of the appeal and its presentation to the proper Court.

4. The application is supported by an affidavit of Mahmooda Begum, appellant. A counter affidavit was filed by Malik Khalid Mahmood, Advocate as attorney of one of the respondents. He challenged the correctness of the deposition and denied that the appellant, Mahmooda Begum was Pardanashin lady and that a good cause was shown for condoning the delay. Mst. Mahmooda Begum submitted another affidavit saying that the delay was of 106 days and not 109 days and that she believed that her two counsel at Sialkot having not much experience, were not fully acquainted with law. It was further deposed by her that the respondent's counsel remained present in Court even before admission of the appeal but they never pointed out that the learned Additional District Judge did not have pecuniary jurisdiction in the matter, rather, they showed their willingness towards the admission of the appeal and with bad motive they did not question the jurisdiction. Another affidavit came from Mr. Muhammad Ashraf, Advocate, stating that one of the terms and conditions of the contra2t between the parties was that in case the plaintiffs‑respondents failed .to perform their part of the contract, the earnest money of Rs.10,000 would be forfeited and that if the breach was committed by the defendants‑appellants in not getting the said deed executed, they would pay a sum of Rs.10,000 over and above the earnest money. According to the deponent, a legal objection in view of the aforesaid stipulation was taken both in the written statement as well as on grounds of appeal and for that reason, the plaintiffs‑respondents were only entitled to a sum of Rs.20,

000. It was therefore, deposed that the deponent was misled on the point of law and in good faith he mistakenly filed the appeal before the learned District Judge. The appearances 'of the learned counsel for the respondent were also counted to show that the jurisdiction of the learned Court was not questioned on any date. It is noteworthy that the counsel resiled from his deposition and submitted another affidavit dated 5‑1‑1977 through the respondents stating that Sh. Zia Ullah Advocate had sent him a draft through the appellant for typing and signatures, but because he was busy in conducting a case when the appellant asked him to sign, he signed it in good faith. He denied that Mr. Liaqat Ali Shah was only an apprentice. He was an Advocate duly engaged in the case and he had also signed the memorandum of appeal. He also pointed out in his affidavit that Sheikh Zia Ullah Advocate was engaged on 18‑12‑1976 as a senior counsel and it was he who practically handled the case. He appeared on each date of hearing except once, and he fully knew what the replies on behalf of the respondents were.

5. Taking the entire material on record, the learned counsel for the appellants submitted that all the appellants except Mahmooda Begum were absentees and it was she alone who was pursuing the case on their behalf. It was stated that she was a Pardahnashin old lady and for the purposes of filing the appeal, she had, in good faith, engaged the two lawyers who had earlier conducted the case on her behalf in the trial Court, therefore, she had filed the appeal before the learned District Judge in good faith on the advice of her counsel which was wrong. According to the learned counsel, the mistake was not deliberate and as soon as it was detected, the appeal was taken back and filed before this Court. By this argument, he wanted to emphasize that the mistaken advice given by the appellant's counsel would give rise to sufficient cause within section 5, Limitation Act. I do not agree with the argument because there is no general doctrine which saves parties from the results of wrong advice. The appellant has primarily taken shelter of her being an old pardahnashin lady, but merely this fact is not sufficient cause, as it cannot be laid down that whenever the appellant is a Pardahnashin lady, there should be no practical limit t the period during which her appeal must be presented. In the present case, the appellant could take benefit of section 5, Limitation Act where her legal interests were prosecuted by her legal advisers with all the carefulness which the circumstances demanded, in consequence of which delay had occurred in instituting the appeal in the proper Court appears from the record that the valuation of the suit for purposes of jurisdiction was decidedly Rs.46, 000, i.e., beyond the pecuniary jurisdiction of the learned District Judge. Explaining the cause of filing the application in the wrong Court, the appellant had deposed in her affidavit dated 14‑6‑1976, that while making the appeal before the learned District Judge, she had bona fide acted on the wrong advice of her counsel. The memorandum of appeal, although signed by Mr. Muhammad Ashraf Qureshi and Syed Liaqat Ali Advocate, was presented by the latter, but he did not come forward to explain what circumstances, led him to form an opinion for filing the appeal in the wrong Court. Mr. Muhammad Ashraf Advocate has submitted his affidavit verified on 29‑11‑1976 and attested on 6‑12‑1976 in which he expressed his state of mind stating that a sum of Rs.l0,000 paid in advance and a stipulated sum of Rs.10,000 as damages for breach of contract gave him an idea that the valuation of the subject‑matter of appeal was Rs..20,000 which was within the pecuniary jurisdiction of the learned District Judge. This belated idea, why the counsel was mistaken in getting the appeal filed in wrong Court, is novel in characteristic, and, at least, gives an impression to a person of even an ordinary skill that the deponent was either altogether devoid of the basic knowledge of relevant law about filing the appeal, or he was grossly negligent and careless in finding out the correct form for an appeal, the valuation of which was Rs.46,

000. It is, therefore, wrong to say that the counsel was in any way misled in this regard, for, the valuation of the appeal for purpose of court‑fee and jurisdiction as disclosed in the memorandum itself was Rs.46.000 and the court‑fee was paid on that value. It is, therefore, apparent that the error occurred on account of deliberate carelessness on the part of the two counsel filing the appeal in wrong Court and want of their reasonable skill. Such negligence is inexcusable. In the circumstances, the idea that even though the counsel might have been guilty of great carelessness, the appellant ought not to be made to suffer where he acted implicitly relying on the advice of his counsel, has no bearing in the present case. It is held in Uttam Chand v. Vishan Das Bhagwan Das and others A I R 1933 Lah. 568 that where there was no doubt as to the law regarding the forum of appeal, as for instance, where it had always been held and it was well‑known to all litigants that an appeal in a particular class of suit lay to the High Court, he was not entitled to an extension of time on the ground of erroneous advice of his counsel. The same view is taken in Wali Muhammad and others v. Inamul Hussain Khan P L D 1971 Lah. 332 wherein it was laid down that any advice could have been regarded as a valid excuse for the delay if it could be held to be based on a bona fide mistake, but if the mistake was committed on account of negligence, in not studying the law on the subject and by not exercising due care and caution, no ground for condoning the delay existed in law. A valuable right having been created in favour of a party, it was not liable to be defeated on flimsy grounds. In that case, the prayer for condonation of delay under section

5. Limitation Act, was pressed on the ground that due to certain judgment of the High Court, the High Court Registry was under the impression that such appeal was not maintainable. It was subsequently found that the ruling of the High Court upon which the Registry had been under such an impression was not relevant and the counsel of the appellant did not point out this fact to the Registry in time. Such point was, however, pointed out by the counsel to the Registry after the expiry of the prescribed limitation period when the appeal was admitted by the Registry. It was held that there was no valid excuse for condonation of delay because the counsel must have pointed out to the Registry, the real position within the limitation period. Similarly, in Said Muhammad v. Goma, etc. P L D 1952 B J 8, filing of an appeal in a wrong Court through gross carelessness of the counsel was held to be not a sufficient cause for presenting the appeal to the proper Court after expiry, of the period

6. On the other hand, it is laid down by Mr. Justice Waheed‑ud‑Dini Ahmad in Fazil Muhammad and others v. Suboh Sadiq and another PLD' 1966 Lah. 542 that in cases where appeal is presented to a wrong Court on the wrong and mistaken advice of pleader, tendered, however, with due care and caution it is a sufficient cause within the meaning o section 5 of Limitation Act, 1908, for condonation of delay. But at the same time, it is held therein that a negligent advice can never be considered to be a good ground for extension of time. In cases of gross negligence of counsel delay cannot be condoned because the negligence of the counsel is the negligence of the party. Similarly, in Nazar Muhammad and another v. Mst. Shahzadi Begum and another PLD 1974 S C 22 Mr. Justice Waheed‑ud‑Din Ahmad took the same view that the mistaken advice of the counsel may be considered sufficient ground for condonation. In that case, the explanation of the respondent was that she had ascertained from Qazi Muhammad Yaqub, a local lawyer, who after consulting a book on limitation informed her that period of limitation for filing an appeal was ninety days. Respondent No.l further stated that she was a Pardahnashin lady and she came alongwith her father to Lahore and met Raja Muhammad Anwar, who, after seeing a book on law of limitation known as Article Law Lecture by Mitra, informed the respondent that under Article 162 of Act IX of 1870, period of limitation for leave to appeal was 90 days from the date of the decree appealed against. According to respondent No. 1, the delay in filing the, appeal beyond limitation was not intentional and was based on mistaken legal advice by a legal practitioner. In that case, there was no counter affidavit filed by the appellants. The same view appears in Kunwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali and other A I R 1937 P C 276 wherein it is held that the mistaken advice given by a legal practitioner may in the circumstances of a particular case give rise to a sufficient cause within the meaning of section 5, Limitation Act, though there is certainly no general doctrine which saves parties from the results of wrong advice. It is also laid down in Sardar Ismail Khan v. Sardar Bagga Khan P L D 1975 A J & K 131 that mistaken advice of the counsel is a good ground for condoning delay.

7. After going through the rule laid down in the above mentioned pronouncements, it gets clear that there is no hard and fast doctrine in the matter of condonation of delay. Each case has different features and depends on its own merits. As observed earlier, it cannot be laid down as a general proposition that the delay caused by the counsels mistake would invariably be regarded as a sufficient cause. The mistake should be bona fide, to say it in other words, it needs be made in spite of due care and attention. In Punjab Province v. Nisar Ahmad PLD 1960 Lah. 801 the mistake was committed by a senior lawyer. It was held that the litigant was not to suffer, because a litigant in order to be diligent can do no better than to engage a senior lawyer in his case. The lawyer, however, senior and eminent they .may be, are after all' human and for that reason .fallible. In the circumstances, it is held in Abdul Rashid and another v. Muhammad Hafeez and another P L D 1963 . Lah. 414 that a bona fide mistake on the part of a senior counsel may be excused and appeal wrongly filed was, therefore, treated as a revision and the delay, if any, was condoned. In another case Muhammad Latif v. Muhammad Hafeez P L D 1951 Lah. 470 the delay was condoned on holding the bona fide because in view of the decision of the trial Judge, the suit was properly valued and the appeal had to be preferred to the Court of the District Judge but during continuance of the appeal, the parties agreed that the correct valuation was Rs.18,000, therefore, the District Judge had no option but to return the appeal for presentation to the proper Court. No sooner the appeal was returned, it was presented to the High Court. The presentation was for that reason, considered bona fide and the delay in filing the appeal was condoned.

8. It may be reiterated that the counsel filing the appeal has nowhere said in his affidavit that he had carefully gone into the relevant law for the presentation of the appeal. The valuation of the appeal was mentioned on the memorandum of the appeal and there was no possibility with the counsel to get mistaken. It is not all, Mr. Muhammad Ashraf, Advocate expressed his state of mind in his subsequent affidavit dated 5‑1‑1977 that he signed the earlier affidavit inadvertently because he was then busy in conducting a case when the appellant/asked him to sign the affidavit. In his latter documents, he tried to disown some parts of his deposition but it is nothing but a pack of lies. It was not only on 29‑1‑1976 that the affidavit was placed before him for signatures but it was .again presented to him on 6‑12‑1976 when it was attested by the Oath Commissioner. It is, nowhere denied that he was present when the document was attested. The fact that he was careless when he had signed the document would reflect on .his negligence he practised while presenting the appeal in the wrong Court. As laid down in Fazil Muhammad's case, such negligence was the negligence of the party and the appellants are, therefore, not entitled to any indulgence.

9. The appellant from her subsequent affidavit dated 17‑11‑1976 .has made an effort to improve her stand by raising an objection that the respondents had themselves been a party to all the delay that occurred in getting the memorandum of appeal returned by the Additional District Judge, Sialkot, and its presentation in the High Court. It was also argued by her counsel that Mr. Khalid Mahmood, Advocate and Special Attorney of respondent No.4 had been present in Court alongwith Mian Naeem‑ur‑Rehman Advocate for the respondents even before the admission of the appeal by the learned Additional District Judge and that they never pointed out that the appellate Court had not pecuniary jurisdiction in the matter. This objection appears to have been raised in view of Farid Majid and another v. Muhammad Nawab P L D 1976 Kar. 891 wherein it was held that the appellants' counsel, though mistaken in presenting appeal in wrong Court, yet mistake not due to his gross negligence inasmuch as his special attention was not drawn to lack of pecuniary jurisdiction by Officer of the Court at the time of presentation of appeal nor respondents Advocate mentioning in his application under Order VII, rule 11, C.P.C., the reason why such Court had not the jurisdiction. In that case time spent in prosecuting appeal in wrong Court was, in the circumstances, excluded. It is not the duty of the respondent to point out the mistake, however, the respondents are the least to be blamed in this respect. The appeal was presented on 27‑11‑1975 and uptil 31‑1‑1976 the respondents or their counsel had not made an appearance before the Court. Mr. Khalid Mahmood, .Advocate appeared as attorney for respondent No.4 as well as for the other respondents. He was directed by the Court to submit a reply to the application filed by the appellants for additional evidence. On 2‑3‑1976, Mian Naeem‑ur‑Rehman, Advocate also appeared to represent the respondents and submitted the reply. The perusal of the reply shows that it was drafted on behalf of Mst. Naseem Khalid respondent on 20‑2‑1976 wherein it has specifically been contended that not only the application was ill‑founded but the Court had no jurisdiction in the matter of the application as well as the appeal. It was again reiterated that the Court had no jurisdiction to hear the appeal. In the circumstances, the present case stands on different footings and it cannot be made a ground that the respondents did not perform their duty in pointing out the lack of jurisdiction. However, it was mainly the duty their appeal. They had engaged an eminent counsel from Lahore on 18‑12‑1975 but he remained quiet uptil 12‑6‑1976 when ultimately he realised the defect and requested the Court to return the appeal for proper presentation. From the circumstances, it cannot be gathered from the material placed on record that the inordinate delay was excusable, and in this respect no explanation has been made why the appeal continued in the wrong Court from 18‑12‑1975 to 12‑6‑1976.

10. For the reasons aforementioned, I do not find any sufficient cause for presenting and for prosecuting the appeal in a wrong Court for such a long time. The appellants are, therefore, not entitled to condonation of delay. The application has no merits and it is, therefore dismissed.

11. The appeal, having been presented out of time, is dismissed as time‑barred. No order as to costs. M. Y. H. Appeal dismissed.