MUHAMMAD YOUNAS Versus ABDUL REHMAN
C.M. No.2-C/2014
ALI AKBAR QURESHI, J.--- This is an application under sections 5 and 14 of the Limitation Act, 1908 read with section 151, C.P.C. seeking condonation of time consumed in prosecuting the titled appeal before a wrong forum i.e. learned District Judge, Sheikhupura.
2. In the present case the learned Trial Court vide judgment and decree dated 19.12.2011, dismissed the applicants' suit for declaration, partition and possession etc. On 16.01.2012 the applicants instead of preferring the appeal before this Court, filed the same before the learned District Judge, Sheikhupura. After a lapse of 2-1/2 years the learned District Judge, Sheikhupura, on 10.07.2014 returned the appeal to the applicants for its presentation before this Court; and, the same was accordingly filed before this Court on 08.09.2014.
3. The applicants are now seeking the condonation of delay under section 14 of the Limitation Act mainly on the grounds: that the respondents had been appearing in the appeal before the learned District Judge without raising any objection as to its maintainability; and, that the time was consumed due to the contributory negligence on the part of the learned court and nobody should be prejudiced by an act of the court.
4. Learned counsel for the applicants, while arguing the case, reiterated the grounds taken in the application and relied upon the cases of Sherin and 4 others v. Fazal Muhammad and 4 others (1995 SCMR 584), Karachi Electric Supply Corporation Ltd. v. Lawari and 4 others (PLD 2000 SC 94) and Mst. Khadija Begum and 2 others v. Mst. Yasmeen and 4 others (PLD 2001 SC 355).
5. On the other hand, learned counsel for the respondents submitted, that the applicants failed to make out a case to take the benefit of section 14 of the Limitation Act; and, that the applicants also failed to show bona fide and diligence on their part. Reliance is placed on Raja Karamatullah and 3 others v. Sardar Muhammad Aslam Sukhera (1999 SMCR 1892), Muhammad Ashiq v. Settlement Commissioner (Lands) The Secretary Government of Pakistan Ministry of Interior, Narcotics Control Division Islamabad and 4 others (1999 SCMR 1901) and Dr. Syed Sibtain Raza Naqvi v. Hydrocarbon Development and others (2012 SCMR 377).
6. Arguments heard. Relevant record perused.
7. Since the applicants want to take benefit of section 14(2) of the Limitation Act, it would be beneficial to consult the said provisions of law which reads as under:
"In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence, another civil proceedings whether in a court of first instance or in a court of appeal against the same property for the same relief shall be excluded, where such proceedings is prosecuted in good faith. In a court which, from defect of jurisdiction or other cause of like nature, is unable to entertain it."
The afore-referred Section of the Limitation Act revolves around two words which are of great significance, that is, "due diligence" and "good faith". The word 'due diligence' has been defined in Black's Law Dictionary (Eighth Edition) as: "ordinary diligence. The diligence that a person of average prudence would exercise in handling his or her own property like that at issue. reasonable diligence. A fair degree of diligence expected from someone of ordinary prudence under circumstances like those at issue."
Whereas 'Good faith' may be defined in following simple words:
Good faith. Nothing shall be deemed to be done in good faith which is not done with due care and attention.
In Black's Law Dictionary (Eighth Edition), the 'Good faith' is defined as: "good faith, A state of mind consisting in (1) honesty in belief or purpose, (2) faithfulness to one's duty or obligation, (3) observance of reasonable commercial standards of fair dealing in a given trade or business, or (4) Absence of intent to defraud or to seek unconscionable advantage."
The Hon'ble Supreme Court of Pakistan, while dealing with section 14 of the Limitation Act in a judgment cited as Sherin and 4 others v. Fazal Muhammad and 4 others (1995 SCMR 584), has defined the word 'Due Diligence' as;
"Diligence is a state of human conduct. What should be the standard for assessing the behavior of an appellant to style him as diligent. Because of fluidity of the notion of diligence, it is difficult to set up a precise yardstick."
In AIR 1960 Andhra Pradesh 406 (V 47 C 134), while defining Section 14, it has been observed, that;
"Proceedings before a railway administration cannot be regarded as civil proceedings but as proceedings before an administrative office, prosecution of proceedings in good faith, party needlessly taking proceedings before particular authority is not acting in good faith and party pursuing wrong remedy on wrong advice of counsel is not entitled to exemption."
8. Now, in the light of definition and interpretation of the words "good faith" and "due diligence", it is examined as to whether the applicants had acted diligently and with due care. It is evident from the contents of paragraph No.11 of the plaint that the applicants themselves fixed the value of the suit for the purposes of court fee and jurisdiction at Rs.50,00,000/-. In the presence of section 18 of the West Pakistan Civil Courts Ordinance, there could be no doubt or complication to determine the forum of appeal. According to law, the proper forum to file the first appeal in such type of suit was this Court but the applicants filed the appeal against the judgment and decree passed by the learned trial court, before the learned District Judge, Sheikhupura. The due diligence and care is a state of human conduct which can only be assessed from the acts performed. The due diligence and care is to be seen from the day when the judgment and decree was passed against the applicants. Learned counsel for the applicants could not explain sufficient cause or the reason as to why and in which circumstances, the applicants were compelled to file appeal before a wrong forum. Thus, choosing wrong forum lacking due care and attention cannot be considered as acts done in good faith. The principle that act of the Court shall prejudice nobody is not attracted in the present case, as the delay was on account of the applicants' own negligence and not due to the act of Court.
9. There is another aspect of the case which is worth consideration. The applicants filed the appeal before a wrong forum and thereafter waited for a long time for the respondent or the court to raise objection about jurisdiction. Learned counsel for the applicants time and again submitted, during the course of arguments, that the appeal was filed before the wrong forum due to wrong advice of the lawyer. The said ground has not been set up in the application for condonation of delay and, therefore, the applicant cannot be allowed to canvass this plea. Thus, the principle that if the applicant is able to establish that he followed the remedy before a wrong forum, acting with due care and caution, the delay in filing the appeal may be condoned is not attracted, because conduct of the counsel for the applicants in the given circumstances smacks of negligence and carelessness.
10. Even otherwise as per principle laid down in the case of Raja Karamatullah and 3 others v. Sardar Muhammad Aslam Sukhera (1999 SMCR 1892) and Dr. Syed Sibtain Raza Naqvi v. Hydrocarbon Development and others (2012 SCMR 377) the benefit of section 14 of the Limitation Act, 1908 cannot be extended to exclude the time consumed in prosecuting an appeal before wrong forum having no jurisdiction, for the purposes of filing an appeal before a forum having jurisdiction.
11. It is now well settled that time spent in pursuing the proceedings before wrong appellate forum, cannot be excluded for the purposes of filing of an appeal and in case appeal is barred by time the provisions of Section 5 of the Limitation Act, 1908 can only be invoked, that too, by showing the sufficient cause. In this regard reference may be made to the case of Ghulam Ali v. Akbar alias Akoor and another (PLD 1991 SC 957). In the present case, the applicants have completely failed to show or explain the sufficient cause as provided in section 5 of the Act ibid. Thus, the applicants have failed to make out a case for condonation of delay in filing appeal before this Court against the judgment and decree dated 19.12.2011 of the learned Trial Court.
12. In the sequel, this application being bereft of any merit is dismissed.
Main Case
13. Since, C.M. No.2-C/2014 has been dismissed, this appeal is dismissed being barred by time.
SL/M-310/L Appeal dismissed.