SUBA KHAN Versus NAZAR MUHAMMAD

This is a first appeal from an order dated 18-3-1980 passed by the learned District Judge, Gujrat whereby he remanded the case to the trial Court with the limited object to determine Issues Nos. 2 arid 3 and to dispose of the suit thereafter in accordance with law.

2. Briefly stated the facts are that Nazar Muhammad, respondent instituted a suit for pre-emption in respect of the land in dispute which was dismissed by the learned Civil Judge, Gujrat by his judgment and decree dated 17-3-1979. The said respondent feeling dissatisfied . preferred an appeal before the learned District Judge, Gujrat, who accepted the same and remanded the case to the trial Court by his judgment dated 18-3-X980.

3. The appellant felt aggrieved of this remand order passed by the learned District Judge and filed the present F. A. O. on 1 2-10-1980. This appeal was admitted to hearing by order dated 13-10-1980 passed by Khalilu Rahman, J. as he then was. Along with the appeal, an application under section 5 of the Limitation Act for condo nation of, delay­ had also been filed, but it appears that the matter of belated filing of the appeal was not brought to the notice of the Court and the appeal had been admitted without adverting to this aspect of the case.

4. Be that as it may, now when the appeal has come up as final hearing, the contesting respondent No.1 has filed a reply to the application for condonation of delay viz C.M.No.6253-C/1980.

5. The learned counsel for the appellant himself also pointed out the belated filing of the appeal before the matter could be taken up on merits.

6. The learned counsel for the contesting respondent No. 1 raised the preliminary objection that the appeal is barred by limitation by 118 days and there is no sufficient cause shown by the appellant for condonation of such an inordinate delay and that the explanation offered is nothing short of a concoction.

7. The learned counsel for the appellant on the other hand submitted that the delay in filing the appeal occasioned on account of a mistaken advice given by a counsel and as such merits to be condoned. Reliance was placed in support of this contention on Nazar Muhammad and another v. Mst. Shahzad Begum and another PLD 1974SC22 .

8. I am of the view that the preliminary objection raised as to the appeal being barred by time has force. A perusal of the record shows that the impugned order of the learned District Judge was passed on 18-3-1980 and the application for obtaining certified copy thereof was made as late as 6th of October, 1980, i. e. after 202 days of passing of the impugned order, whereas the period of limitation prescribed for an appeal is 90 days only. The asserted mistaken advice of a counsel in view of the above position that the copy of the impugned order itself was applied for after expiry of the prescribed period of limitation to say the least appears to be an afterthought only. It is also not understandable as to how a counsel could advise whether an appeal or a revision would lie against any order without having looked at the order what to say of having studied it.

9. It is correct that a mistaken advice of a counsel has been held t be a ground which may be considered as sufficient for condoning delay but to me it appears that only such mistaken advice can be considered as a sufficient ground for condoning delay in availing of a legal remedy which has been given bona fide, with due diligence and after due application o mind. The negligent advice of a counsel can obviously be not made a basis for condoning delay as it would amount to giving a premium on one's own' neglect. There can be no cajole to the proposition that want of reasonable skill on the part of the counsel would stand on the same footing as negligence. It may also be observed that if it be laid as a broad principle that ever mistaken advice of the counsel is a good ground for condoning delay a has been canvassed by the learned counsel for the appellant, it would amount to defeating the valuable right that has accrued to the adversary under the law by lapse of the prescribed period of limitation.

10. Calculating the total period from the date of filing of appeal, the appeal is barred by 118 days. Yet another aspect of the matter is that even after obtaining copy, the petitioner did not file the appeal for another 6 days and there is no plausible explanation for this period as well. It is the cardinal principle in the matter of condonation of delays in availing of legal remedies that each day's delay has to be explained satisfactorily. The explanation offered in the case in hand for the inordinate delay of 118 days, to' say the least is not only not satisfactory but also does not inspire confidence of being truthful.

11. Before parting with the case, I may observe that the authority cited by-the learned counsel for the appellant proceeds on wholly different facts, and can in no manner be applied to the attendant circumstances of the case in and. In the cited authority the mistaken advice of the learned counsel was given after due consideration of provisions of law and was the result of a misunderstanding as to whether Article 162 of the Limitation Act or Article 157 thereof was applicable to that case. In the relevant discussion at page 27 of the cited judgment of the Supreme Court the details of books consulted by the learned counsel who gave the mistaken advice have also been given. Contra-distinctively to the above circumstances which persuaded the honourable Judges of the Supreme Court to hold that mistaken advice of a counsel may be considered as a sufficient ground within section 5 of the Limitation Act for condoning the delay, the attending circumstances of the case in hand as set out in the miscellaneous application seeking condonation of delay do not present any such features and not only that even the alleged mistaken advice of the learned counsel was admittedly given without first having obtained copy of the impugned order. Reliance placed by the learned counsel for the appellant on P L D 1974 S C 22, is, therefore, of no avail to the appellant.

In view of the foregoing discussion the preliminary objection raised on behalf of the contesting respondent is sustained and this appeal is dismissed as grossly barred by time. There will, however, be no order as to costs.

S,q Appeal dismissed.