ABDUL GHANI vs Mst. MUSSARAT REHANA

' MUHAMMAD AFZAL LONE, J.--Mst. Mussarat Rehana, respondent, sued the appellant for recovery of Rs.52,540 being the value of dowry. The suit was decreed by the learned trial Court on 23-9-1982. As the value of the subject-matter of the suit fell beyond the pecuniary jurisdic tion of the District Court, the appeal against the trial Court's judgment and decree, was competent only before the High Court, but the appellant on 5-10-1982, instituted the same in the Court of the learned District Judge, Sargodha. It was assigned to a learned Additional District Judge, who by his order, dated 9- 7-1984 returned it to the appellant for presentation before a competent forum. It was thereafter that the appeal was instituted in the High Court on 16-7-1984.

2. The appeal, is, hopelessly barred by time. However, the memorandum of appeal is accompanied by an application under section 5 of Limitation Act, praying for condonation of delay on the ground that due to mistake the appeal was filed in the Court of learned District Judge, which was returned to him on 9-7-1984 and was presented in the High Court after engaging the counsel, without loss of time. Later on an application under Order VI, rule 17, C.P.C. was also moved for amendment of the application aforesaid, so as to convert it into an application under section 14 of the Limitation Act.

The delay in filing the appeal is sought to be condoned on the plea that it was instituted in the District Court under the wrong advice of the counsel and the appellant prosecuted it in good-faith and with due diligence.

3. We have heard the learned counsel for the parties, section 14 of the Limitation Act, is not applicable for the purposes of computing the period of limitation for appeals. It applies to the suits.

However, as laid down by the Privy Council, in Brij Indar Singh v. ,Kanshi Ram, ILR 45 Cal. 94, this section is relevant for consideration of a case under section 5. The appellant, therefore, has got to show that there was a sufficient cause within the meaning of section 5 ibid, for not preferring an appeal in the High Court within the period of limitation. In Ata Ullah Malik v. The Custodian Evacuee Property and others PLD 1964 SC 236 sufficient cause has been defined as circumstances beyond the control of a party. Again for bringing the case within the ambit of the principles governing section 14 the appellant, has got to show that he prosecuted the appeal before the wrong Court in good-faith, but as per definition of term 'good-faith' given in section 2 of the Limitation Act, what is done without due care and attention, cannot be deemed to be done in good faith.

4. Had there been any confusion in determining the forum, competent to hear the appeal, or there was such other reason which misled the appellant in going to the District Court, he could have successfully pleaded, the existence of a sufficient cause and the delay due to the prosecution of the appeal before a wrong -forum, in good faith, could be excused. The reason being that in such a case, prosecution of the appeal before a wrong Court, with a bona fide mistake, and with due diligence would constitute a sufficient cause. But the circumstances of this case did not present any difficulty in ascertaining the forum having jurisdiction to hear the appeal. It was a money suit decreed for Rs.52,540 and under section 18 of the Civil Courts Ordinance, 1962, the District Court had no pecuniary jurisdiction to hear appeal against such a decree. We are of the view, that the error in filing the appeal in the District Court is so patent, that it could have been avoided by exercising due care. The wrong advice of a counsel does not furnish a foundation for enlargement of time. A reference in this connection may be made to Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102, which is on all fours on the case in hand.

5. We, therefore, reject the application for extention of time and dismiss this appeal as barred by time. The parties are, however, left to bear their own costs.