MAHMOODA BEGUM Versus MUHAMMAD ISHAQ

1. MUHAMMAD HALEEM, C. J.‑ This appeal, by special leave, arises from the judgment of the Lahore High Court, dated 25th of February, 1977, by which R. F. A. No. 106 of 1976 was dismissed as time‑barred.

2. The dispute in this appeal relates to the sale of Bungalow No. 63, Ghazi Road, Sialkot Cantonment. On the 30th of November, 1973, the first appel lant on her behalf and on behalf of the other three appellants executed an agreement to sell the bungalow for a sale consideration of Rs. 46,000 out of which she received Rs. 10,000 as earnest money and as for the balance it was agreed that it would be paid at the time of registration of the sale deed. Amongst other stipulations, it was provided that permission to sell the bungalow would be obtained from the Military Estates Officer within two months of the execution of this agreement and in case of failure to do so permission shall be deemed to have been granted.

3. As the appellants failed to perform their part of the contract, the respon dents sued for the specific performance of the contract on 3rd of August, 1975. This suit was resisted on the ground that the appellants had applied for permission to sell the bungalow which was refused, but did not file any document in support of this assertion. The trial Curt did not believe the ipsi dixit of the first appellant who appeared as a witness, and decree the suit on 28‑10‑1975 for the specific performance of the agreement to sell subject to the permission being obtained from the concerned authority and in the alternate, a direction was made for the payment of Rs. 36,000 to the respon dents.

4. The appellants filed an appeal before the District Judge on 27th of November, 1975, but memorandum of appeal was returned at the request of the counsel for the appellants on l21th of June, 1976 for lack of pecuniary jurisdiction. It was represented in the Lahore High Court, Lahore, on 14th of June, 1976, but was dismissed as time‑barred on 25th of January, 1977.

5. Leave to appeal was granted to consider as to whether the benefit of condonation of time should have been allowed to Mst. Mahmooda Begum one of the appellants herein, who, as it was contended, was a Pardahnashin lady, and was hence misled try the wrong advice of her counsel and for that she should not have been made to suffer.

6. It may here be of relevance to mention that when the memorandum of appeal was represented in the High Court a ground was taken in the applica tion for the condonation of delay that the appellant was an old Pardahnashin lady and that as the other appellants who were her children were living else where, she alone pursued the litigation and was misled by the wrong advice of her counsel in filing the appeal before the District Judge, which she bona fide believed and as it was not 'a deliberate mistake on her part, the delay should be condoned. The High Court while examining this ground held

7. "I do not agree with the argument because there is no general doctrine which saves parties from the results of wrong advice. The appellant has primarily taken shelter of her being an old Pardanashin Lady merely this fact is not sufficient cause, as it cannot be laid down that whenever the appellant is a Paradahnashin lady, there should be no practical limit to the period during which her appeal must be presented. In the present case, the appellant could take benefit of section 5, Limitation Act where her legal interests were prosecuted by her legal advisors with all the carefulness which the circumstances demanded, in consequence of which delay had occurred in instituting the appeal in the proper Court."

8. It would appear from the above that without going into the question as to whether she was a Pardahnashin Lady or not, the High Court did not accept as a general rule that the delay howsoever long should be condoned, and that the benefit of condonation can only be given if the counsel had acted with care and caution while prosecuting the litigation.

9. As to whether Mst. Mahmooda Begum was a Pardahnashin lady is itself a matter which requires determination as she had appeared herself in the Court to give evidence, and was the attorney of the other respondents and actively defended, the suit through her counsel. In these circumstances, whether she could be regarded as a Pardahnashin lady as the term connotes in legal terminology is doubtful.

10. A Pardahnashin lady is one who remains behind the curtain and has no communication except from behind the Pardah with any male person save a few privileged relations or dependants. As such she has no access to independent advice other than from these persons. Nonetheless, it cannot be said as a rule that Pardahnashin ladies are ignorant, weak‑minded and have no capacity to understand their affairs because of living in seclusion. On it be said that Mahmooda Begum was a Pardahnashin lady as understood in the terminology so as to be led away by a wrong advice. the answer must be in the negative. Ought it be said that the appeal fails primarily for the reason that it was not a case of ill‑advice but extreme negligence on the part of the counsel, who had filed the appeal before the District Judge. A plain reading of section 18 of West Pakistan Civil Courts Ordinance, 1962, should have made it obvious to the counsel that any appeal whose valuation exceeded Rs. 25,000 should have been filed in the High Court. There was no room for any doubt as subsection (1) (a) of section 18 is so clearly worded that it is not susceptible to any other interpretation. The appeal was valued at RS. 46,000 and, therefore, there was so room for any doubt as to the forum where it should have been presented. It is a case of gross ignorance of the law on the part of the counsel and as such it cannot be regarded as an ill‑advice, and for this reason if the appellants have suffered they can seek redress against their counsel, but this would not provide a reason for condonation of delay. More or less on the same facts, it was held by this Court in Ch. Muhammad Sharif v. Muhammad Ali Khan (1975 S C M R 259) "that this is a clear case in which the learned Advocate showed gross lack of care and his failure in such a case to acquaint himself with the relevant provisions of law relating to the jurisdiction of the Courts amounted to negligence on his part." The case of Nazar Muhammad v. Mst. Shahzada Begum (P L D 1974 S C 22), which was relied on by the appel lants for seeking condonation of delay was also distinguished in this case for the reason that a wrong period of limitation had been calculated even after reference to a recognized text‑book on the Law of Limitation. This ground is not at par for all that is pleaded is that it was an ill‑advice. How such an advice was given is not apparent from the record, and, therefore, the ratio of this case will have no analogy with the instant case. Thus, the observations in Ch. Muhammad Sharif's case will be fully applicable. In Mirza Muhammad Saeed v. Shahab‑ud‑Din (P L D 1983SC385), this Court again held :‑‑‑

11. "Where, however, a mistake in approaching the wrong forum is com mitted by him due to gross negligence and carelessness and it does not appear that he has shown 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."

12. Additionally, it also appears from the record that in the two applications filed by the respondents within the period of limitation for presenting the appeal in the High Court, it was stated that the Court had no jurisdiction to bear the appeal. This should have at least put the counsel on guard, but it seems that the counsel showed no awareness to it and allowed the period of limitation to expire.

13. For the foregoing reasons, we do not find any justification to interfere with the order of the High Court, which is upheld. Accordingly, the appeal is dismissed but with no order as to costs.

14. M.Z. M. Appeal dismissed.