P L D 1966 (W (PLP)

Asghar Ali Bhatti and Mustafa Khan for Respondents. ANWARUL HAQ, J.‑This appeal under clause 10 of the Letters Patent of this Court is directed against a judgment delivered by our learned brother Ortcheson, J. on the 18th of December 1961, in S. A. O. No. 2 of 1960. A preliminary objec tion has been raised by the learned counsel for the respondents to the effect that the appeal is time‑barred. We consider that this objection must prevail.

2. Although the judgment was delivered by the learned Single Judge on the 18th of December 1961 and the period of limitation for filing the appeal was only thirty days, yet the application for obtaining the certificate of fitness from the Judge concerned as well as the appeal were not filed until the 29th of January 1962. In the application made by the appellant under section 5 of the Limitation Act it is stated that, in the first instance, the appellant applied on the 20th of December 1961 for a certified copy of the judgment under appeal, and the same was supplied to him on that very day. He was then advised to apply for a certified copy of the decree, and accordingly he made this application on 4th of January 1962 and a certified copy of the decree was supplied to him on the 15th of January 1962. It is stated further that the delay, if any, is due to erroneous advice to the effect that a certified copy of the decree had also to be filed along with the appeal.

3. The question whether the time requisite for obtaining copy of the judgment under appeal in such a case can be excluded was considered by a Full Bench in the case of Jog Dhian v. Hussain and another (A I R 1935 Lah. 323) and it was held, with reference to rule 4 as contained in Chapter 1‑A of Volume V of the High Court Rules and orders, that: "The rules under the Letters Patent do not amount to a special or local law. It follows that the time requisite for obtaining a copy of the judgment appealed from, which need not be filed with the Memorandum of Appeal, cannot be excluded." Now, in the present case, the certified copy of the decree has not even been filed with the appeal, and for good cause, as the relevant rule makes it clear that it is not necessary to file a copy of the decree sheet. The observations of the Full Bench are clearly applicable not only to the filing of the certified copy of the judgment. But also to a copy of the decree sheet. It is thus clear that the reason given by the appellant for delay in filing the appeal cannot be accepted as sufficient cause for condoning the delay, because there was no legal requirement of filing a certified copy of the decree along with the appeal.

4. The learned counsel for the appellant referred us to a decision of their Lordships of the Supreme Court, namely, Tahir Ali and others v. Chief Judge, Karachi Small Causes Court (P L D 1963 S C 147), in which it has been held that even when the rules do not require the filing of a certified copy of the judgment and decree along with the revision, yet the time requisite for obtaining such copies should be allowed, especially when such copies are in fact filed with the revision or appeal. The dictum in that case, however, has no application to the case before us for the reason that their Lordships were dealing with a special type of case, namely, a case arising under the Karachi Rent Restriction Act of 1953, which did not give any right of appeal to the aggrieved party but provided only for a revision to the High Court. Their Lordships held that "the word `appeal' occurring in section 12 (2), Limitation Act, 1908 should be construed in a broad sense so as to include a revision under the Karachi Rent Restriction Act, 1953, and accordingly the time required for obtaining a copy of the decree and judgment must be excluded, even though by the rules of the Court it was not necessary to obtain such copies". They went on to say that, as application by way of revision is the only remedy provided by the Karachi Rent Restriction Act, 1953 such a revision has all the characteristics of an `appeal In other words, the revisional power under this Act is not subject to any specified restrictions like those mentioned in section 115, C P. C. It is, therefore, clear that the word `revision in this Act, has not been used in the same sense as what is technically known as a revision.' under section 115 of the Code of Civil Procedure". It will be seen that these considerations do not arise in the instant case, and the decision of their Lordships of the Supreme Court in a case under the Karachi Rent Restriction Act of 1953 cannot be regarded as expressly overruling the decision of the Full Bench in the case of Jog Dhian which dealt precisely with the point which is before us.

5. It was next contended by Malik Shaukat Ali that even if the time requisite for obtaining the copy of the judgment and the decree sheet cannot be excluded in the present case in view of the judgment of the Full Bench in the case of Jog Dhian, yet the delay could be condoned in this case on the ground that it was due to the erroneous advice given to the appellant by his counsel. In the first instance, it is interesting to remark that in the applica tion presented by the appellant under section 5 of the Limitation Act although it is mentioned that he was erroneously advised to obtain a certified copy of the decree sheet, yet it is not at all indicated as to who gave this erroneous advice, and it is only a matter of presumption that this erroneous advice must have come from some lawyer whose name is not disclosed. In fact it is possible that this erroneous advice may not have come from any legal quarters at all. However, assuming that a lawyer gave the erroneous advice, it is clear that this was done without due care and attention as the rules on the subject were quite clear and there was also a Full Bench decision of the Lahore High Court on this very point. The erroneous advice, therefore, could not be regarded as a bona fide mistake in the sense in which this phrase is defined in the Limitation Act. This question was considered at some length in Said Muhammad v. Goma etc. (PLD1952BJ8) and after referring to a large number of authorities the learned Judges came to the following conclusion: "Whenever discretion is to be exercised it should be exercised in a judicial and not an arbitrary manner and considerable care should be exercised in determining the 4' question of `sufficient cause" which is always a question of fact in each case. Thus a sufficient cause can properly be said to be a cause which is beyond the control of the party invoking the aid of the section. A cause for delay which by due care and attention, the party could have avoided cannot be a sufficient cause. The test, therefore, whether or not a cause is sufficient is to see whether it could have been avoided by a party by the exercise of due care and attention, in other words, whether it is a bona fide cause, inasmuch as nothing shall he deemed to be bona fide or in good faith which is not done with due care and attention." They went on to say that "filing of an appeal in a wrong Court through gross negligence of the counsel is not a sufficient cause for presenting the appeal to the proper Court after the expiry of the period of limitation. But where there has been a bona fide mistake, not through misconduct or through negligence, nor through want of reasonable skill, but such as a skilled person might make, the client is entitled to indulgence". We are in respectful agreement with the above observations and consider that in the present case if there was indeed any erroneous advice tendered to the appellant in the matter of obtaining a certified copy of the decree sheet, that advice was the result of negligence and would not constitute sufficient cause within the meaning of the law.

6. Malik Shaukat Ali then raised another point to the effect that as in this case the appeal had been admitted by a Division Bench of this Court on the 11th of June 1964, it must be presumed that the admitting Bench had condoned the delay in filing the appeal. This contention does not appear to us to be well‑founded. In 'the admitting order there is no mention at all regarding the appellant's application under section 5 which had been separately number red as Civil Miscellaneous No. 28 of 1962 by the Bahawalpur Circuit, and as Civil Miscellaneous No. 6072 of 1962 by the Lahore Bench where it was first instituted. If indeed their Lordships of the admitting Bench had a mind to the question of delay, they were bound to say so in. the admitting order and as they have not said anything at all on ,this point it is clear that they had not adverted to this question. Even otherwise, it has been held that where an appeal or application filed beyond time is admitted ex parte after excusing delay, without notice to the opposite- party, the latter is entitled, at the hearing, to object to the admission and the Court can re‑open the question and decide whether there is sufficient cause for admitting the appeal or application beyond time. The leading case on this point is Krishnasami v. Ramasami (A I R 1917 P C 179) in which their Lordships of the Privy Council observed as follows :‑

"It has been argued that the admission of the appeal by Sankaran Nair, J. was final, and that the Division Bench had no jurisdiction at the hearing of the appeal to re‑consider the question whether the delay was excusable. But this order of admission was made not only in the absence of Ramasamy Chettiar, the contesting respondent, but without notice to him. And yet in terms it purported to deprive him of a valuable right, for it put in peril the finality of the decision in his favour, so that to preclude him from questioning the property would amount to a denial of justice. It must, therefore, in common fairness be regarded as a tacit term of an order like the present that, though unqualified in expression, it should be open to re‑consideration at the instance of the party prejudicially affected; and this view is sanctioned by the practice of the Courts in India." It is thus clear that even if the order of the admitting Bench had purported consciously to condone delay, the matter could be re‑agitated by the opposite party on the ground that he had no notice in this behalf and no opportunity to defend the finality of the judgment and decree already made in his favour.

7. Before we part with this order, we may mention that, relying on Rameshwar Das v. Official Receiver, Delhi and other (A I R 1938 Lah. 325) it was pointed out by Mr. A. A. Bhatti, the learned counsel for the respondents, that in a Letters Patent Appeal it is only the admitting Bench which has jurisdiction to consider the question of condoning the delay and the Bench hearing the appeal has no such jurisdiction whatsoever. The authority cited by the learned counsel does appear to support the proposition canvassed by him, but in view of the fact that the learned Judges admitting this Letters Patent Appeal are not available at Bahawalpur, we have examined the matter as if we had jurisdiction, and even then we have found that the delay could not be condoned in view of the Full Bench authority relied upon by the learned counsel for the respondents, and the other reasons mentioned above.

8. The result is that the present appeal must be held to be barred by time and it is accordingly dismissed as such. We, however, leave the parties to bear their own costs. K. B. A. Appeal dismissed.