Mirza MUHAMMAD SAEED vs SHAHABUDDIN AND 8 OTHERS

ORDER

1. ' NASIM HASAN SHAH, J.-This petition for special leave to appeal is directed against the judgment dated 12-4-1983 passed by a Division Bench of the Lahore High Court (Rawalpindi Bench) in R. F. A.

2. No, 4 of 1983.

3. The relevant facts are that an agreement of sale was entered into on 1-4-1977 between the petitioner and Haji Fazal Din, predecessor-in-interest of the respondents for the sale of a house and a shop owned by the petitioner in Chakwal for a consideration of Rs, 85,000. The petitioner received a sum of Rs, 40,000 as advance and the sale deed was to be executed up to 30-11-1977.

4. However, disputes arose with regard to the implementation of this agreement resulting in the filing of the suit for specific performance by the respondents in the civil Court of Chakwal. The learned Civil Judge, Chakwal, decreed the suit of the respondents on 30-3-1982 and directed them to deposit the balance of the sale amount of Rs, 45,000 on or before 15-4-1982.

5. ' Aggrieved by the judgment and decree of the learned Civil Judge, the petitioner filed an appeal against it in the Court of the District Judge, Jhelum, through Khawaja Saeed-ud-Din, Advocate, a Senior Counsel of Jhelum. When the appeal came up for final hearing before the learned District Judge, an objection was taken to his jurisdiction to hear the appeal because the value of the case for purposes of jurisdiction was Rs, 85,000, whereas the learned District Judge was not authorized to hear appeals, the value of which exceeded Rs, 50,000. The appeal was accordingly, ordered to be returned for presentation before the appropriate Court.

6. ' In view of this development, the petitioner presented his appeal in the High Court (Rawalpindi Bench, Rawalpindi). The appeal before the High Court, in the meanwhile, had become barred by 223 days. An application for condonation of delay under sections 5 and 14 of the Limitation Act and under section 151, C. P. C. Was, therefore, filed alongwith the appeal.

7. ' The High Court, in the first instance, took up the application for condonation of delay, but the learned Judges refused to condone the delay on the ground that the counsel at Jhelum was "terribly negligent in the discharge of his duties" in filing the appeal before the learned District Judge. It was pointed out that the respondents were directed to deposit the balance amount of Rs, 45,000 failing which the suit would stand dismissed and, therefore, there was no scope for the counsel to have been misled that the valuation of the appeal for purposes of court-fee and jurisdiction was Rs, 45,000 only.

8. ' In fact, there was no such misconception because even in the heading of the certified copy of the decree sheet it was stated : {{TABLE}} "Value of suit for purposes of jurisdictionRs. 85000 Value of suit for purposes of court-fee Rs.

9. 85000 Amount of stamp on plaint Rs. 6 375"

10. ' And again, the grounds of appeal were written on for-sheets of judicial stamped paper valuing Rs, 6,375 which sum is the amount of court-fee payable on a suit valued at Rs, 85,000. In these circumstances, there was no scope for the plea that the counsel for the petitioner was laboring under any misconception and that he did not know that the valuation of his appeal for the purposes of court-fee and jurisdiction was Rs, 85,000.

11. ' The learned Judge further observed that under section 14 of the Limitation Act indulgence can only be granted in cases of a mistake or error committed by a reasonable and prudent man exercising due diligence and caution. Where the mistake of the learned counsel is "unaccountable and the result of the highest carelessness and a total lack of due care and attention the said conduct cannot be a ground for relief under section 14 of the Limitation Act". As to the applicability of section 5 of the Limitation Act, it was pointed out that a mistake arising from gross negligence or committed without any real excuse and which could have been averted by proper inquiry cannot constitute a "sufficient cause" to extend limitation. The application for condonation of delay was.

12. Accordingly, dismissed. In view of the aforesaid decision, the main appeal was, therefore, also dismissed, as being time-barred. Hence this petition for leave to appeal.

13. In view of the above factual and legal position, Maulvi Sirajul Hach learned counsel for the petitioner before us, was hard put to find any fault with the judgment of the High Court but raised an important issue as to when a litigant should be made to suffer when be had done all in his power t prosecute a remedy allowed to him by law for no fault of his own. In this case, it is submitted the petitioner had engaged a very senior lawyer for filing an appeal, given him all the necessary papers and documents requisite for filing it, 4 paid the full Court-fee loveable on a memorandum of appeal and filed it before an appellate Court, which he was advised, was the proper forum and could, therefore, legitimately expect a rehearing on the merits of the entire matter only to find his expectations dashed to the ground on account of the blunder of his counsel.

14. ' 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 and prudent man despite exercising due s 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.

15. ' This petition, however, must fail and is, accordingly, dismissed hereby.