1984 PLP 154 (MLD)

Iftikharul Haq Khan for Appellant. Syed Laqa Raider Zaidi for Respondents. Date of hearing: 8th May, 1984. Facts giving rise to the present appeal are that Mst.Iqbal Begum, predecessor-in-interest of Syed Zawar Hussain Shah (appellant) and Mst. Irshad Begum, owner of land measuring 621 kanals 2 marlas, agreed to sell her land to Rai Ahmed Khan, Rai Muhammad Hayat and Rai Khizar Hayat, vide agreement to sell dated 2-6-1965 for a total consideration of Rs.90,

000. Since the agreement could not be completed, suit seeking specific performance of agreement to sell was filed by Rai Ahmad Khan and two others against Syed Zawar Hussain Shr:h and Mst. Irshad Begum, in the Court of Civil Judge, District Jhang. The suit was instituted on 4-12-1966.

2. The suit for specific performance was decreed ex parte on 6-3-1967 against Syed Zawar Hussain Shah and claim against Mst. Irshad Begum was decreed on merits An application for setting aside the ex parte decree was made by Syed Zawar Hussain. Vide order dated 3-6-1968, learned Administrative Civil Judge, Jhang, dismissed the application and refused to set aside the ex parte decree granted earlier. Zawar Hussain filed appeal against the order of the learned Administrative Civil Judge in the Court of learned District Judge, Jhang. Vide order dated 4-10-1968, the learned Additional District Judge holding that the Court had no jurisdiction to hear the appeal as it exceeded its pecuniary limits of appellate jurisdiction ordered that the memorandum of appeal be returned to the appellant for its presentation to the proper Court.

3. Appeal in the High Court was filed on 3-6-1969. Initially, no application under section 5 of the Limitation Act seeking condonation of delay was filed but later on an application under Section 5 for condonation of delay supported by an affidavit of Ahmad Ali son of Muhammad Din, a Kardar of Syed Zawar Hussain was filed on 9-10-1969.

4. I have heard learned counsel for the parties and perused the record. Learned counsel for the respondents has raised a preliminary objection that the appeal filed is hopelessly barred by time. Ex parte decree was passed on 6-3-1967. Application filed for setting aide the ex parte decree was dismissed by the learned Administrative Civil Judge on 3-6-1967. Appeal against the latter order could be filed directly in the High Court a5 the value for the purposes of court-fee and jurisdiction in the: plaint was fixed at Rs.911,1100. Any order arising out of the said suit was appealable to the High Court in the same manner as the final order would have been. Therefore, there was no justification to file the appeal ire the Court of learned District Judge. Even after the order for return of the memorandum of appeal was passed by the learned District Judge on 4-10-1968, the appellant waited for about 8 months to file the appeal in the High Court. There is no explanation for this long delay also. Sufficient cause has not been shown by the appellant for the condonation of this delay. The appellant has also not shown that he acted bona fide and in good faith in filing the first appeal before the learned District Judge while in fact the appeal lay to the High Court. A bare look at the plaint would have shown that the first appeal would lie to the High Court and not the District Judge. The appellant has shown extreme negligence in filing the appeal to the Court of learned District Judge and thereafter has wasted about nine, months after the memorandum of appeal was returned to him for its presentation to the proper Court. No explanation for this delay as stated above is forthcoming on record. A valuable right had accrued to the respondents after the expiry of prescribed period of limitation of which they cannot be deprived on the bare ipse dixit of the appellant. Mistake in approaching wrong forum due to gross negligence and carelessness of the counsel or the party, without showing due diligence and caution has never been considered sufficient to condone the delay. In the instant case, it has not been shown its to why and under what circumstances, the appellant was misled in filing the appeal before District Judge. The error seems to be deliberate. In view of the above, in the absence of sufficient cause, the appellant is not entitled to condonation of this long delay in preferring the appeal to the High Court. Time wasted in the District Court was due to sheer negligence of the appellant. Reliance is placed on the case of Mirza Muhammad Saeed v. Shahabud Din and 8 others P L D 1983 S C

385. The appeal filed was hopelessly barred by time. No ground exists for condonation of delay .

5. Consequently, the appeal is dismissed leaving the parties to bear their own costs. M . B . A . Appeal dismissed.