1984 PLP 1548 (SCMR)

MUHAMMAD HALEEM, Actg. C.J.‑‑ This petition seeks reversal of the order of the High Court dismissing the letters patent appeal as barred by time. It is not necessary to recall all the facts and it would suffice to say that the dispute related to the transfer of Shop No. 738, Ward No. 5, Multan City. The contesting parties were Noor Elahee and Haji Kora. Noor Elahee being unsuccessful filed Writ Petition No: 2293‑R of 1963 in the former High Court of West Pakistan, Lahore, and succeeded, as it was accepted by a learned Single Judge by his order, dated the 5th of April, 1967. Against this order, letters patent appeal was filed on 5th of May, 1967, seven days after the expiry of limitation. Alongwith the appeal, an application under section 5 of the Limitation Act was filed for the condonation of delay for the reasons stated as under:‑ (ii) That counsel for the petitioners gave an impression to the peti tioners that the impugned order could be challenged only by way of petition for special leave to appeal in the Supreme Court and it was under this bona fide impression that the petitioners applied for the copy of the impugned order for Supreme Court use. This is borne out by the certified copy of the impugned order which is attached with this petition. (iii) That it was this bona fide mistake, which resulted in the present Letters Patent Appeal being barred by time. (iv) That although the Settlement Writs are being heard by Division Benches of this honour able Court and the remedy against the order of the Division Bench is only by way of Petition for special leave to appeal in the Supreme Court, yet in the instant case as the order was passed by the learned Single Bench, the immediate and proper remedy before invoking the jurisdiction of the Supreme Court under Article 58 of the Constitution is by way of Letters Patent Appeal to this honour able Court. The Letters Patent Bench rejected the reasons given in justifica tion of the delay holding that: "It is now well‑settled that the wrong impression given by a counsel is not a good ground for the condonation of delay in filing appeal." The learned counsel in advancing the sub mission that entertaining a wrong impression bona fide is a good ground for the condonation of delay relied on Evacuee District Trust Committee v. Muhammad Ismail P L D 1978 Kar.

252. But the ratio decidendi of this case will not be applicable as the determination of the proper forum to file an appeal was an intricate question of law arising from the fact that the judgment impugned was passed by a learned Single Judge while exercising the appellate power under section 4(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and the more so when a senior counsel had earlier given his opinion that the appeal would only lie to the Supreme Court. In the present case, under the rules of the High Court, all settlement petitions were being heard by a Single Judge, and letters patent appeals lay to the High Court against those judgments under clause 10 of the Letters Patent. How the counsel entertained a mistaken impression is not disclosed in the reasons, therefore, it is not possible to say Low he was misled to think that only a petition for leave to appeal to the Supreme Court was the remedy. Thus, it is a mere assertion without any cogent basis. It is true that there was no bar to impugn the judgment before the Supreme Court by filing a petition for leave to appeal but that course was not adopted although the reason given for obtaining the copy of the judgment was that a petition had to be filed in the Supreme Court. We may here point out that there are instances where direct petitions for leave to appeal were filed without invoking the appellate jurisdiction of the High Court, but this course was discouraged on the short ground that if this Court was to grant special leave to appeal then its effect would be to practically destroy the jurisdiction possessed by the High Court under the Letters Patent. See Dauran Khan v. Naseer Muhammad Khan (1964)2 P S C R

83. In Province of West Pakistan. v. Rahim Bakhsh 1968 S C M R 1328, leave to appeal was granted against the judgment of a Single Judge of the High Court as it was based on the opinion of a Division Bench decision in the case of Muhammad Akram v. Niaz Ahmad Writ Petition No. 117 of 1964. This deviation is an exception to the rule as laid down in the earlier case for a cogent reason. In this view of the matter, we cannot hold that the discretion exercised in refusing to condone the delay was erroneous. Accordingly, this petition is without merit, which is dismissed. S.Q. Leave refused.