1997 PLP 1885 (CLC)

This is a Civil Revision filed under section 115 of C.P.C. against the order of learned 1st Additional District Judge, Hyderabad in Civil Appeal No.207 of 1989, whereby the appeal of the present applicants was dismissed alongwith their application filed under section 5 of the Limitation Act, 1908, on the ground that the appeal is hopelessly time‑barred.

2. The relevant facts for disposal of this Revision Petition are that the respondent's suit for accounts and cost of the suit land filed under section 15 of the Dekkhan Agriculturists Relief Act, 1879 was decreed by the learned Senior Civil Judge, Hyderabad on 31st July, 1986. The present applicants who were defendants before the trial Court filed application for obtaining certified copies of the Judgment/Decree on 2nd August, 1986; copies were prepared by the copying branch on 27th August, 1986 and were delivered to the defendants/applicants on 27th September, 1986; the appeal was filed in High Court on 3rd November, 1986; on 27th November, 1988 memorandum of Appeal was returned to the appellants/present applicants for presenting the same before the Court of District Judge, Hyderbaad. The said appeal was thereafter dismissed on 18th January, 1993, by the 1st Additional District Judge, Hyderabad, vide impugned order.

3. I have heard Mr. Partab Rai, for the applicants and Mr. Hassan Mehmood Baig, for the respondents. It was strenuously argued by Mr. Partab Rai that after presentation of appeal before the District Judge, appellants/present applicants filed an application under section 5 read with section 14 of the Limitation Act, seeking condonation of delay. This application was supported by the affidavits of present applicants/appellants and their counsel. The reasons given in both these supporting affidavits were that the applicants/appellants being simple villagers and uneducated persons were not aware of the forum where the first appeal was required to be filed as the suit was valued at Rs.30,000; that they have engaged a Senior Counsel namely Mr. Abdul Sattar Sheikh, who after due diligence advised them for filing appeal before the High Court. Mr. Abdul Sattar Sheikh, Advocate, in his supporting affidavit has stated that since the valuation of the suit was more than Rs.25,000, he filed the appeal before the High Court and that he was not aware of the amendment made in the West Pakistan Civil Court Ordinance, 1962; that no objection was raised by the Additional Registrar of this Court at Hyderabad Registry at the time of filing appeal which was subsequently admitted and stay was granted. It is further averred in the affidavit that the moment the learned counsel came to know of this jurisdictional defect, he applied for its return under Order VII, rule 10, C.P.C. and has presented the said application on 27th November, 1989. It is further argued by Mr. Partab Rai that despite the best of his efforts he could not find publication of the Sindh Civil Court (Second Amendment) Ordinance, 1981 in any law journal. He has contended that the acts of the present applicants filing appeal before the High Court was a result of bona fide advice of an advocate, who after due and diligent care advised them for filing the same, and, therefore, they are entitled for condonation of delay in view of the principles of section 14 read with section 5 of the Limitation Act. He has placed reliance on the cases Sherin and 4 others v. Fazal Muhammad and 4 others (1995 SCMR 584), Raja Muhammad and others v. Muhammad Ijaz Khan and others (1982 SCMR 1105), Province of Punjab v. Ikramul Haq and another (1986 SCMR 1994) and the case of Muhammad Sadiq v..Khan Muhammad Afzal and others (1987 CLC 2018).

4. Mr. Hassan Mehmood Baig has argued that it is a case of gross negligence and, therefore, the applicants are not entitled for condonation of delay as provided in section 5/14 of the Limitation Act. He has also placed before me a copy of Gazette Notification of Sindh Government Gazette Karachi, dated 9th August, 1981, which indicates that clause (A) of section 18 of the Sindh Civil Courts Ordinance, 1962 was amended and value was enhanced from Rs.25,000 to Rs.50,

000. In such circumstances, it was argued that this amendment was in force for more than five (5) years but despite_that no due care was adopted by the counsel of the appellants, who filed the appeal in the wrong forum. He has also submitted that on 15‑3‑1988, he filed a counter affidavit before the High Court during the hearing of first appeal, whereby, he disclosed that this Court has no jurisdiction. Again, on 28‑11‑1988, he filed an application under Order VII, rule 10, C.P.C. for return of memorandum of appeal but despite that no effort was made by the applicants/appellants to rectify the error committed by them. According to learned counsel it was on 16‑11‑1989, when appellants/applicants for the first time filed application under Order VII, rule 10, C.P.C. for return of the memorandum of Appeal, which was granted by this Court on 27‑11‑1989. He has referred to the cases of Ch. Muhammad Sharif v. Muhammad Ali Khan and others (1975 SCMR 259), Abdul Ghani v. Ghulam Sarwar (PLD 1977 SC 102), Ghulam Ali v. Akbar and another (PLD 1991 SC 957), Mirza Muhammad Saeed v. Shahabuddin and 8 others (PLD 1983 SC 385), Islam Din v. Ali Nawaz and others (1990 SCMR 768), and the case of Razalia Shaukat Tareen v. Amina Tahir Ahmed (1994 QLC 701).

5. In the case of Sherin (1995 SCMR 584) the question which came up for consideration was that what should be the standard, of care and diligence while filing an appeal and what is the duty cast on Court officials entertaining an appeal to record objections as regard to defect of the jurisdiction. Sections 5 and 14 of the Limitation Act were interpreted particularly in reference to the terms "due diligence", "good faith", "sufficient cause" and "reasonable". In that case an appeal was filed in the Court of District Judge against the decree dated 21‑2‑1984 which was admitted for regular hearing on 21‑3‑1984. But the memorandum of appeal was returned by the District Judge to the appellants on 1‑12‑1985 for presenting the same in the High Court as the appeal was found beyond the pecuniary jurisdiction of the District Court which was refiled by the appellants in High Court on 15‑12‑1985 and was admitted to regular hearing on 04‑01‑1986. At the time of regular hearing the Peshawar High Court dismissed the appeal as barred by time. One of the plea agitated before the Hon'ble Supreme Court was that the appellant acted under the advice of their counsel and that they were not aware of the provisions of Law 'as to the pecuniary jurisdiction of the Courts. However, the appeal was allowed on the ground that the appellants were made civtim of the act of the Court which furnishes sufficient cause. But in respect of wrong advice given by the counsel the same was discouraged in the following words:‑ ....The filing of appeal in the District Court, is entirely attributable to the carelessness of the appellants' counsel. He represented them in the trial Court, and was not unaware of the amount of the court‑fee paid on the plaint by the respondents, on the objection of the appellants, which determined the forum of appeal. He has also appeared for the appellants in the High Court. It seems that he is a Senior Advocate. We may say, and say so with respect that of late, unfortunately there has been a tendency of some decline in the proficiency of the members of this noble profession, practising at the Bar. It is high time that the Bar Councils in the country should take notice of it and adopt measure to arrest this tendency. If the law has to march with the changing time, some restraint needs to be exhibited by the Courts, in imposing too large a burden on a litigant, for the lapses of his counsel. "

6. The case of Muhammad Sadiq (1987 CLC 2018) is an old case decided on 12‑3‑1969 by a learned Division Bench of Lahore High Court comprising Anwarul Haque and Nasim Hasan Shah, JJ., (as their Lordships then were). In the letters Patent Appeal one of the preliminary objection raised on behalf of respondents was that the said appeal was barred by 286 days. An application was also filed by the appellants under section 5 of the Limitation Act, which explained the delay by stating that a review petition was filed as directed by a learned Single Judge which took 257 days in its disposal and, therefore, the principles embodied in section 14 of the Limitation Act were attracted. The learned Divisi n Bench of Lahore High Court after considering the time consumed in prosecuting review petition and the time consumed in obtaining certified copies held that the appeal comes within time. The facts of the case of Muhammad Sadiq (supra) are quite different from the facts of the instant case and, therefore, in my view the rule laid down by the learned Division Bench ofLahore High Court is of no help to the applicants. The case of Province of Punjab (1986 SCMR 1994) arises out of an appeal from the judgment of Punjabrvices Tribunal. In that case a Full Bench of the Hon'ble Supreme Court after referring to the case of Muhammad Hashim Khan v. The Chairman Balochistan Services Tribunal and another (PLD 1983 SC 262), held inter alia, that the principles underlying Section 14 of the Limitation Act for condonation of delay under section 5 of the Limitation Act in the circumstances of the case could not ordinarily be excluded. It was further held that since the respondent was pursuing his remedy in a wrong forum by means of an appeal before the Federal Services Tribunal, that period is to be excluded. In the case of Muhammad Ayub and others (1982 SCMR 1105) the Hon'ble Supreme Court, inter alia, held that it was a case of bona fide negligence of the counsel who wrongly filed appeal in the Court of District Judge instead of the Court of Additional Commissioner Revenue and, therefore, it was held that the case falls within the purview of section 14 of the Limitation Act.

7. Mr. Hassan Mehmood Baig, learned counsel for the respondents Nos. l to 7 has invited my attention to the case of Ch. Muhammad Sharif (1975 SCMR 259) through which Hon'ble Supreme Court refused to grant leave to appeal against the judgment of a learned Single Judge of Lahore High Court dismissing the second appeal as being barred by time on the ground that it was the gross lack of care and failure of an Advocate to acquaint himself with the relevant provisions of Law relating to the jurisdiction of the Courts which amounted to negligence. In that case the appeal was wrongly filed in the Court of District Judge Rahirn Yar Khan instead of Lahore High Court but before any order could have been passed by the Lahore High Court, the Advocate himself applied for return of memorandum of appeal, despite that the Hon'ble Supreme Court came to the conclusion that it amounts to negligence of an advocate. Reference was made to the case of Kanwar Rajindar Bahadur Singh v. Rai Rajesh Durbai (AIR 1937 PC 276) and Nazar Muhammad v. Mst. Shehzada Begum (PLD 1974 SC 22).

8. In respect of the present controversy the most important case is that of Abdul Ghani v. Ghulam Sarwar (PLD 1977 SC 102) where an appeal against the decree of a Civil Judge was filed in the District Court instead of Lahore High Court which was subsequently returned to the appellant for presentation in the P proper Court but by that time the period of limitation for filing appeal in the High Court had expired. The petitioner filed fresh memorandum of appeal alongwith the application under section 5/14 of the Limitation Act fort condonation of delay. However, that appeal was dismissed by a Division Bench of Lahore High Court where it was held that filing an appeal before the District Judge can by no means be called as a bona fide Act. Against this order, petition seeking leave to appeal was filed which was dismissed. It was argued before the Hon'ble Supreme Court that since the appeal was admitted by the District Court which transferred the same to Additional District Judge and that an injunction was also granted, the principle "actus curiae nemonim gravalsit" was attracted. It was held by the Hon'ble Full Bench of Supreme Court that such argument is frivolous as the Court is not under an obligation to advise the appellant how to prosecute his remedies against the respondent. It was further held that the petitioners were fully aware of the valuation of the property. In the said judgment the view of a learned Single Judge of this Court in Fareed Majid and another v. Muhammad Nawab (PLD 1976 Karachi 891) where the period consumed in wrong Court on the advice of an advocate was condoned under section 14 of the Limitation Act was held as not good, law as it was contrary to the Law declared by the Privy Council in the case of Kanwar Rajindar Bahadur Singh (ibid). In the case of Mirza Muhammad Saeed v. Shahabuddin and 8 others (PLD 1983 SC 385), Hon'ble Supreme Court refused to grant leave to appeal against the order of a Division Bench of Lahore High Court where it was held that the appeal which was required to be filed before the Lahore High Court was filed under advise of an Advocate before the District Judge Jhelum was declared "terribly negligent in the discharge of his duties" was the counsel's advice. Prosecuting of an appal in a wrong forum under a wrong advice of a counsel was answered with the following observation by the Hon'ble Supreme Court:‑‑ "This, indeed, is a dilemma to which there is no entirely satisfactory answer. The law as it now stands is that the Courts can show indulgence and condone the delay where time has been lost by prosecuting a remedy before a wrong forum on account of a bona fide mistake or error committed by a counsel, which a reasonable arid prudent man despite exercising due diligence and caution might have .committed. Where, however, the mistake in approaching the wrong forum is committed by him due to gross negligence and carelessness and it does not appear that he has shown due diligence and caution before moving the said wrong forum; the only remedy for the unfortunate client of such a counsel appears to be to sue him for damages for the loss suffered on account of his gross negligence. If such a remedy is exercised more frequently and counsel made to pay for their carelessness and negligence which results in such grave losses to their clients, some amelioration in the situation is possible." 9.The rule laid down in the case of Abdul Ghanii'PLD 1977 SC 102 (supra) by the Hon'ble Supreme Court was reiterated by another Full Bench in the case of Islam Din v. Allah Nawaz and others (1990 SCMR 768). The udgment of Lahore High Court dismissing Civil Revision on the ground of delay was upheld. The rule laid down in Abdul Ghani PLD 1977 SC 102 (ibid) was again followed by the Hon'ble upreme Court in the case of Ghulam Ali v. Akbar alias Akoor and another (PLD 1991 SC 957). It was held to be a good law and that it holds the field. In that case a suit for specific performance was filed which was valued at Rs.2,29,000 and accordingly Court‑fee was paid hereon. According to section 18 of the West Pakistan Civil Court Ordinance, 1962 the appeal was required to be filed before the High Court which was no done and instead of that appeal was filed in the District Courts which was ismissed on merit on 23‑7‑1987. After referring to the cases of Abdul GhaniOLD 1977 SC 102 (supra) and Mst. Mehmood Begum and others Malik Ishaq and others (1984 SCMR 890) it was held that in case if the client has suffered on account of ill advice by his counsel redress could be sought against the counsel but delay uld not be ondoned on such grounds.

10. In the impugned judgment, it was noted by learned Additional District Judge, Hyderabad that against the judgment/decree dated 31‑7‑1986 appeal before the District Judge was filed on 27‑11‑1989, after a lapse of more than three (3) years and four months. It was further noted that the respondents in their counter affidavit dated 15‑3‑1988 filed before the High Court raised the plea of want of jurisdiction but no efforts were made by the appellants (now applicants) to adopt proper remedy. Again n 28‑11‑1988 an application under Order VII, rule 10, C.P.C. was filed by the respondents before High Court which application was served on the applicants in the month of January, 1989 still they failed to take any steps or withdrawing the appeal and filing it before the District Court. It was on 16‑11‑1989 after a period of twenty (20) months of filing of counter affidavit and one year after filing of application under Order VII, rule 10, C.P.C. that the present applicants filed an application under order VII, rule 10, C.P.C.. There is a full period of more than 18 (eighteen) months when this jurisdictional error was pointed out to the applicants by the respondents but no efforts were made by the present applicants to correct this effect. Neither in the Memorandum of petition under section 115, C.P.C. nor in its supporting affidavit any explanation is offered by the applicants for their abovenoted inaction. Although it was argued on behalf of applicants that the amendment made in section 18 of the Sindh Civil Court Ordinance, 1962 increasing pecuniary jurisdiction of Civil Courts in Sindh were neither published in any of the law journals nor in the Gazette of Sindh and since it was not traceable, the party could not be held responsible. In my view, applicants cannot take refuge of such unfounded plea because the moment the jurisdictional defect was pointed out to them through the counter‑affidavit of the respondents, they failed to react timely and remained inactive for more than eighteen (18) months. This period itself barred the remedy of appeal before the District Judge. In case the benefit of ignorance or that of actus curiae is extended to the applicants that too* was terminated on 15th March, 1988 after filing of counter affidavit by the respondents before the High Court raising objections to the jurisdiction of High Court in entertaining the said appeal. It is the consistent view of the Hon'ble Supreme Court from the case of Ch. Muhammad Sharif (1975 SCMR 259) and the case of Abdul Ghani PLD 1977 SC 102 (supra) which was followed by the Supreme Court in the cases of Mirza Muhammad Saeed, PLD 1983 SC 385 Islam Din 1990 SCMR 768 and Ghulam Ali PLD 1991 SC 957 (supra) that the B wrong advice of counsel is no ground for condoning delay in filing appeal before the proper Court and that the principles underlying section 14 of the Limitation Act are not attracted. The abovementioned cases were not noted by the Hon'ble Supreme Court in the case of Sherin v. Fazal Mehmood (1995 SCMR 584). However, I am of the considered view that in the circumstances of the present case the rule of Abdul Ghani (ibid) is attracted and, therefore, I am inclined to follow the same.

11. In view of the facts of the present case, the applicants are not entitled to gain any benefit from the rule laid down by the Hon'ble Supreme Court in the case of Sherin (supra) as it was brought into the knowledge of the applicant that their appeal before the High Court suffered from jurisdictional defects. but still no steps were taken by them to redress the wrong. In my humble view the ratio of cases Ch. Muhammad Sharif 1975 SCMR 1259 and Abdul Ghani PLD 1977 SC 102 (supra) are attracted. As far as case of Province of Punjab (ibid) is concerned, in that case the benefit was extended to an employee of a Provincial Government who was serving in the Federal Government and was retired from the services by the order passed by the President of Pakistan. He prosecuted his remedy before Federal Services Tribunal instead of Punjab Services Tribunal. It was held to be a bona fide error. In the instant case, there are two different Courts where the applicants were required to file their appeal according to the value of the suit. Therefore, the rule laid down by the Hon'ble Supreme Court in the Province of Punjab 1986 SCMR 1994 (supra) is not attracted in the circumstances of the present case. I am of the view that it is the gross negligence of the applicants as well as their counsel and, therefore, they are not entitled to C the benefit as envisaged ‑in sections 5 and 14 of the Limitation Act, 1908. As a result of the above discussion, the above Revision Application alongwith Civil Miscellaneous Application 24 of 1993 was dismissed through a short order on 30‑05‑1997 with no order as to cost. These are the reasoning for the said short order. H.B.T./M‑191/K Revision application dismissed