ABDUL GHANI Versus GHULAM SARWAR

1. DORAB PATEL, J .-The petitioner filed a suit for pre-emption in the Court of a Civil Judge, Shujaabad. Although the learned Civil Judge passed a decree in the petitioner's favour on 29-7-1975, the petitioner was aggrieved by it. He, therefore, filed an appeal and it is clear that the appeal could only have been filed in the Lahore High Court. As however it was filed in the District Court, Multan, by his order dated 18-3-1976 an Additional District Judge, Multan returned the memorandum of appeal to the petitioner for presentation in the proper Court. As by that time, the period of limitation for filing an appeal in the High Court against the judgment of the Civil Judge had expired together with the memorandum of appeal, the petitioner filed an application under section 5 read with section 14 of the Limitation Act for condonation of the delay in filing the appeal. The Division Bench of the Lahore High Court held that the petitioner's action "in filing the appeal before the District Judge can by no means be called as a bona fide act" Accordingly, by their order dated 2e-3-1976 the learned Judges of the Division Bench dismissed the appeal in limine as time-barred. Hence this petition for leave.

2. In view of the submissions advanced by Mr. Bilal, the petitioner should have filed a copy of his plaint and it is unfortunate that he has not done so. Mr. Bilal however explained with reference to the suit filed by the petitioner that the vendor had sold the land in dispute to the respondent by a registered sale-deed in which the sale consideration was shown as Rs. 74,000. But as the petitioner's claim in his plaint was that the sale to the respondent should have been for its. 27,000 and/or that the sale consideration shown in the registered sale-deed in the respondent's favour was false, he claimed the right to pre-empt the land in dispute for Its. 27,000 only. The learned Civil Judge decreed the petitioner's claim for pre-emption but he held that the sale-deed was genuine and that the sale to the respondent was subject to a mortgage for Rs. 11,000. Accordingly by his judgment dated 29-7-1975 whilst allowing the petitioner's claim for pre-emption, he directed the petitioner to deposit a total payment aggregating Rs. 85,000. The petitioner was aggrieved by the difference between the same amount of Rs. 85,000 and the sum of Rs. 27,000 for which, according to him, the land had or should have been sold. Hence the appeal in the district Court, Multan, and strangely enough the petitioner even managed to obtain an ad interim order from the District Judge, Multan, pending the hearing of his appeal. We used the words "strangely enough" because it would appear from the order of the first appellate Court that the petitioner had valued his claim in the plaint both for the purpose of court-fees and jurisdiction at Rs. 75,000 approximately. And section 18 of the West Pakistan Civil Courts Ordinance, 1962 reads ;

3. "18. Appeals from Civil Judges.-(1) Save as aforesaid, an appeal from a decree or order of a Civil Judge shall lie--

(a) to the High Court if the value of the original suit in which the decree or order was made exceeds twenty-five thousand rupees; and

(b) to the District Judge in any other case.

(2) ??????????.

(3) ??????????.

4. There is absolutely no ambiguity about this section. Even a layman would be able to understand it without any legal assistance whatsoever. But the petitioner claims to have been advised by an Advocate and the appeal was filed by an Advocate. Therefore, as the petitioner had himself valued his claim in his suit at a sum far exceeding Rs. 25,000, it is not possible to understand bow any Advocate could have advised the petitioner to file his appeal in the District Court, and we find it difficult to believe that the petitioner was misguided by legal advice, but if he was, then we have to observe with regret that the petitioner's Advocate acted with gross negligence in filing the appeal in the District Court.

5. Mr. Bilal then submitted that the appeal was filed only for the amount by which the petitioner was aggrieved. Now, as we pointed out earlier, that amount was the difference between Rs. 85,000 and Rs. 27,000 a sum of nearly Rs. 50,000. But this amount also far exceeded the appellate pecuniary jurisdiction of the District Court, ever since District Courts had been set up in the country. Mr. Bilal then said that according to the petitioner the sale price should have been Rs. 56,500 and that the amount challenged in the appeal was only the difference between Rs. 85,000 and Rs. 56,500. Whilst this is the plea taken by the petitioner in his memorandum of appeal, it is inconsistent with learned counsel's emphatic assertion that the real sale consideration for the sale which was pre-empted was or should have been Rs.27,000. Learned counsel did not attempt to explain why the petitioner had thus been changing his position, but even on the footing that the position taken by the petitioner in his plaint about the real sale price was a bona fide error, the difference between Rs. 85,000 and Rs. 56,500 exceeded Rs. 25,000, which was the pecuniary limit of the appellate jurisdiction of District Courts throughout the country, therefore, even if the petitioner's learned counsel bad somehow assumed that the forum in which the appeal was to be filed would depend upon the monetary relief sought in the appeal, the appeal could only have been filed in the Lahore High Court. And, it is not irrelevant to emphasise here that in the long history of District Courts in the country the appellate jurisdiction of District Courts had never exceeded Rs. 25,000 and had been limited to Rs. 5,000 for a very long period. Additionally, as the case is from the Province of the Punjab, it should be borne in mind that the law on the question of the appellate jurisdiction of District Courts had been clarified beyond all doubt by a very able judgment of Kaikaus, J. (we say so with respect) in Food Stuff Supply Company v. Irfan Cotton Oil Mills and others P L D 1959 Lah. 325 Therefore, it is difficult to believe that the petitioner was misguided by his Advocate, the more so, as he has withheld the memorandum of appeal filed by him in the District Court. This is strange, because he should have represented this memorandum of appeal in the High Court. Instead he appears to have filed a fresh memorandum of appeal prepared after the District Court's order for the re-presentation of his appeal.

6. We have been compelled to refer to this unfortunate aspect of the case because there is an averment in paragraph 9 of the appeal filed in the Lahore High Court that the appeal in the District Court had been valued for the purpose of jurisdiction and court-fees at Rs. 1,891.50 "calculated on the basis of 30 times of permanently settled land revenue of the suit property . . . . . . ." Now, according to paragraph VI of section 7 of the Court Fees Act, suits for pre-emption have to be valued according to the value of the land in respect of which the right is claimed and this value has to be computed in accordance with paragraph V of the section. But as paragraph V does not contain any provision for calculating the value of the land at thirty times "the permanently settled land revenue" it is not possible to understand the position taken by the petitioner before the High Court, the more so, as learned counsel also could not assist on this aspect of the case. In these circumstances, the only inference which we can draw is that the petitioner had resorted to the device of under-valuing his relief in order to evade payment of court-fees, therefore, he had been caught in the web spun by him, and such conduct can never amount to sufficient cause within the meaning of section 5 of the Limitation Act.

7. In order to overcome these self-induced difficulties the petitioner has tried to throw the blame on the District Court and on the respondent's Advocate. Thus, for example, he has pleaded in his petition drat it was the act of the District Court "which contributed towards expiry of limitation for filing appeal in the High Court". We were astonished by this plea and even more by the fact that it was pressed because it is not Mr. Bilal's case that the petitioner was an infant or a lunatic whose interests the Court might have been under some duty to protect. But, according toy Mr. Bilal, the petitioner had been misguided by the District Court because after admission the appeal had been transferred from the Court of the District Judge, Multan to that of an Additional District Judge, Multan, therefore, the principle actus curiae nemonim gravalsir was attracted. The argument is fallacious because the transfer from the Court of the District Judge to that of an Additional District Judge was by an administrative order and because this transfer was after the petitioner has deliberately filed his appeal in the wrong Court. And, in any case, the attempt to invoke the principle actus curiae nemonim gravalsit assumes that the Court was under an obligation to advise the appellant how to prosecute his remedies against the respondent, we regret to say that this assumption is against reason. Mr. Bilal then pointed out that the District Judge had granted an interim injunction to the petitioner. But, in the first place, this was alter the presentation of the appeal. Secondly a the interim order does not refer to the question of the valuation of the appeal, in the circumstances, we are satisfied that the petitioner had no drawn the attention of the District Judge to the fact that he had valued his claim in the trial Court at a sum which far exceeded Rs 25,000. No doubt, on a perusal of the memorandum of appeal, if the facts had been correctly stated, the District Judge would have realised that the appeal was beyond the pecuniary jurisdiction of his Court. This would also have been apparent from a casual perusal of the judgment under appeal, therefore, it is obvious that the learned District Judge granted an injunction in a most reckless manner, and the grant of injunctions in this manner cannot but lead to the increase of frivolous litigation. Be that as it may, it was the respondent who was aggrieved by the injunction obtained by the petitioner, and it does not lie in the mouth of the petitioner to complain of the fact that he had successfully obtained an illegal order from the Court.

8. Mr. Bilal's next submission was that the respondent had misguided the petitioner, because the respondent had received notice of the petitioner's appeal before the expiry of the period of limitation for filing the appeal in the High Court and if the respondent had Objected immediately to the maintainability of the appeal, the petitioner would have been able to apply to the District Court for the return of his appeal and for its representation to the High Court within the statutory period of Limitation. But as the respondent had challenged the District Court's jurisdiction only after the expiry of the period of limitation, according to Mr. Bilal, the respondent had misguided the petitioner. This extraordinary submission is based on the assumption that defendants are under an obligation to give advice about the manner in which claims against them are to be prosecuted. Apart from the fact that this assumption is against reason, submission is self defeating because there cannot be different standards for plaintiffs and defendants, and if the petitioner was not at fault for filing his own appeal in the wrong Court, by the same standard, the respondent cannot be blamed for not objecting immediately to what the petitioner did.

9. In any event, the conduct of other parties cannot help the petitioner to make out sufficient cause under section 5 of the Limitation Act. It is true that this section does not define sufficient cause but the meaning of this expression is too well known to need recapitulation, and we would only refer here to the observations of Kaikaus, J. on this question in Ata Ulla v. Custodian Evacuee Property P L D 1961 S C 236. "Under section 5 . . the has to be a finding of sufficient cause. In pre-partition India sufficient cause had been defined as circumstances beyond the control of the party and I do not know of any case wherein this definition of sufficient cause had been rejected" We re-affirm these observations and we any explain here that the burden is on the appellant to prove that his delay in filing his appeal was on account of circumstances beyond his control, because, as observed by Sir George Rankin in Kunwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali and others AIR 1937 P C 276 . . . . in applying section 5 (of the Limitation Act) . . . . the analogy of section 14 (which applies only to suits) is an argument of considerable weight." Section 14 permits the exclusion of time only for proceedings "prosecuted in good faith", therefore in order to make out sufficient cause under section 5 an appellant must prove that he had acted in good faith in presenting his appeal in the wrong Court. Good faith has been defined in clause (7) of section 2 of the Limitation Act as the good faith' nothing shall be deemed to be done in good faith which is not done with due care and attention:" Now if an appellant proves that he filed his appeal in the wrong Court despite due care and attention it means that the presentation of the appeal in the wrong Court was on account of circumstances beyond his control. No doubt, what such circumstances are must depend on the facts and circumstances of each case, and in Kunwar Rajendra Bahadur Singh's case, Sir George Rankin set aside the finding of the Chief Court that the appellant's Advocate had been very negligent in filing the appeal in the wrong Court because the facts relevant to the question of the Court in which the appeal was to be filed were very complicated. Similarly, an appellant can bring his case under section 5

10. ??????????? if he can show that there is some ambiguity in the law governing the forum in which the appeal is to be filed. Or, to take another example, an appellant can rely on section 5, if he can show that he was misguide by the practice of the Court or by an erroneous judgment of the Court. But, in the instant case, the provisions of section 18 of the West Pakistan Civil Courts Ordinance are plain beyond any doubt and as there is also n complication whatsoever about the facts relevant to the question of the proper forum for filing the appeal, it is clear that the presentation of the; appeal in the District Court was an act of gross negligence.

11. Mr. Bilal, however, stated that his submissions were supported by judgments of the Lahore High Court and by a Karachi case. The judgment of Kaikaus, J. to which we referred earlier, is fatal to this petition, but Mr. Bilal relied on a judgment reported in Abdul Rashid and another v. Muhammad Hafeez and another P L D 1963 Lah 414. That case related to the construction of section 15 of the West Pakistan Urban Rent Restriction Ordinance read with the provisions of the Civil Procedure Code which had been amended and as the learned Single Judge was of the view that there was ambiguity in the provisions relating to the forum in which the appellant had to file his appeal the judgment is distinguishable on the facts. Then, as to Arura v. Karam Din A I R 1947 Lah.76 or Muhammad Lat f v. Muhammd Hafeez and others P L D 1951 Lah 479 the appellants had initially filed their appeal in the wrong Court, because they had been misguided by the judgments of the trial Court which had overruled their objections to the valuation of the suits filed by the respondents. Thus, in both these cases the principle actus curiae nemonim gravalsit was attracted, but that is not so in the instant case.

12. However, the petitioner's case is supported to the hilt by a judgment of a learned ;Single Judge of the Sind & Baluchistan High Court reported in Farld Majid and another v. Mohammad Nawab P L D 1976 Kar. 891. The facts in this case were that a suit arising out of an application to make an award then rule of the Court was dismissed. The amount claimed in the suit far exceeded the pecuniary appellate jurisdiction of the District Court yet the appeal was presented in the District Court and, when it came up for hearing the respondent challenged the maintainability of the appeal. This objections was allowed and the appellant was permitted to represent his appeal is the High Court. As in the instant case the appeal was represented long after the expiry of the period of limitation and was supported by an application under section 5 of the Limitation Act. The respondent opposed this application and relied on the judgments of the Bagbdul Jadid High Court in Said Muhammad v. Goma etc. PLD1952BJ8 and Mirza Habibullah v. Mahmooda Begum PLD1952BJ43 because in both these cases the appellants had to file their appeals in the High Court but had on the advice of their Advocates filed the appeals in the District Court, with the result that the period of limitation bad expired when the appeals were represented in the High Court, therefore, in each case the appellants had filed applications for condoning delay under section 5 of the Limitation Act. The learned Judges of the Baghdadul Jadid High Court were conscious of the hardship that would be caused to the appellants by the dismissal of their applications under section 5, but they dismissed them in view of the judgment of the Judicial Committee in Kunwar Rajendra Bahadur Singh's case and the judgments of the High Courts of the Sub-Continent for more than two decades.

13. Unfortunately, the learned Single Judge of the Sind & Baluchistan High Court did not consider it necessary to examine these cases and condoned the appellants' delay with the observation: "No doubt, the Advocate for the appellants who had .presented the appeal to the District Court had made a mistake but I am not satisfied that it was due to gross negligence of counsel". With respect, the question was far too important to be disposed of by an Ipse dixit, the more so, as the result of this ipse dixit was to unsettle the settled law. It also escaped the attention of the learned Single Judge. that his view was contrary to the law declared by the Privy Council in Kunwar Rajendra Bahadur Singh's case. Therefore, the judgment in Farid Majid and another v. Mohammad Nawab is not good law.

14. The petition is without merit and is dismissed.

15. S. A. H. ????????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.