2016 PLP 1205 (CLC)

C.M. No.2-C/13 We propose to decide C.M No.2-C/13 under Section 14 of the Limitation Act, 1908 for condoning the period of delay in filing of RFA No.32/13.

2. Briefly, the facts of the case are that the respondent filed a suit for declaration and damages which was decreed by the learned trial Court through judgment and decree dated 6.2.2009.

3. Aggrieved by the judgment and decree dated 6.2.2008 the petitioners/appellants filed an appeal before the learned Addl. District Judge which was returned on 23.4.2010. Instead of re-filing the appeal in the High Court the petitioners filed civil revisions before the High Court on 1.6.2010 which was dismissed on 10.12.2012. Against the order dated 10.12.2012 the appellant filed two Civil Petitions Nos.249/12 and 250/13 before the Hon'ble Supreme Court of Pakistan which were dismissed for non-prosecution on 30.4.2013; but at the same time the appeal was presented before this Court on 24.1.2013 accompanied by the application for condonation of delay.

4. Learned counsel for the petitioners/appellants submits that the, delay of about 1754 days has to be condoned as the appellant had been pursuing the matter diligently and followed the remedy before the wrong forum in good faith. Learned counsel has also relied upon Syed Haji Abdul Wahid v. Syed Sirajuddin (1998 SCMR 2296), Sherin and 4 others v. Fazal Muhammad and 4 others (1995 SCMR 584) and Abdul Majeed and others v. Hamida Bibi and 4 others (2002 SCMR 416) contending that the appeal had been presented before this Court on 24.1.2013 after dismissal of the civil revisions on 10.12.2012.

5. On the other hand, learned counsel for the respondent has strongly opposed the application contending that it was incumbent upon the appellant to file memo. of appeal at the earliest before this Court after its return on 23.4.2010. The delay in presenting this appeal on 24.1.2013 has not been sufficiently explained. It has been further contended that filing of civil revisions before this Court cannot constitute good faith in pursuing the remedy before the wrong forum. The petitioners/appellants were bound under the law to present the memo. of appeal in the High Court on the very next day of its return and in this regard has placed reliance on Mst. Khalida Begum and 2 others v. Mst. Yasmeen and 4 others (2000 CLC 1290) and Abdul Ghani v. Ghulam Sarwar (PLD 1977 Supreme Court 102).

6. We have considered the arguments advanced by the learned counsels for the parties and perused the material available on record.

7. There is no denial to the fact that the appeal was returned to the petitioner on 3.4.2010 and has been represented before this Court on 24.1.2013. As far the reliance of the petitioner on Syed Haji Abdul Wahid v. Syed Sirajuddin (1998 SCMR 2296), we are afraid that this judgment does not help the petitioner as there was no ambiguity in filing of appeal before this Court and the wrong advice of the counsel can never constitute good faith or a sufficient cause for condoning the delay. Even if the argument is accepted that the appeal had been entertained by the learned Addl. District Judge this Court could have considered the condonation of delay till 23.4.2010 in view of the dictum laid down in Sherin and 4 others v. Fazal Muhammad and 4 others (1995 SCMR 584) as the parties should not be penalized for the act of the court but in this case the petitioners after the return of the appeal had been pursuing civil revisions. The petitioners are under the legal obligation to explain the delay of each and every day. The judgment passed by the learned trial Court in itself showed that the appeal on account of pecuniary jurisdiction had to be filed before the High Court. After return of the appeal on 23.4.2010 the pursuing of the civil revision cannot constitute good faith as any action taken on advice given by the counsel against clear provision of law would not entitle the party to seek condonation of delay. In this view of the matter, we are not inclined to condone the delay.

8. For what has been discussed above, this application for condonation of delay is dismissed. Consequently, RFA No.32/13 shall also stand dismissed. ZC/Z-7/L Appeal dismissed.