Mian AIZAD BAKHSH vs Sheikh MUHAMMAD AFZAL

ORDER

1. NASIM HASAN SHAH, J.- The petitioner filed the appeal against judgment and decree of the learned Senior Civil Judge before the District Judge. The matter remained pending before the latter for about a year when the petitioner's counsel himself pointed out that the value of the subject- matter of appeal exceeded his pecuniary jurisdiction and prayed for return of the memorandum of appeal for presenting it to the High Court. The memorandum of appeal was returned and, thereafter, submitted before the High Court. The question arose whether the delay should be condoned.

2. It was contended on behalf of the petitioner that the appeal filed before the District Judge was on account of the bona fide mistake of his counsel and the delay was liable to be condoned as it was occasioned on account of the mistaken advice given by the counsel. In support of this submission reliance was placed on a decision of the Privy Council in Kumar Rajendra Bahadur Singh v. R.I Raieshwar Bali and others AIR 1937 P . C ' 276. The learned Judges in the High Court, however, relying on to decisions of this Court, namely, Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102 and Mirza Muhammad Saeed v. Shahab-ud-Din PLD 1983 S.C. 385 rejected this plea observing that the mistake in approaching the wrong forum was committed by the counsel of the appellant (petitioner herein) due to gross negligence and carelessness and, therefore, the delay could not be condoned.

3. In support of this petition, Mr. M.S. Mehboob, learned counsel for the petitioner, submitted that the petitioner was not to be blamed. He had engaged a counsel, paid the full court-fee and filed the appeal, though in the wrong forum, on account of the mistaken advice of his counsel, but with due diligence, only 14 days after the decision given by the trial Court, and he could not be blamed for the delay. On the other hand, the delay had occurred simply on account of the mistaken advice of the counsel and, therefore, this was a fit case in which the delay should have been condoned.

4. The question of condonation of delay on account of the mistaken advice has again been considered by this Court in to recent cases and it has been held that gross ignorance of law on the part of the counsel cannot be regarded as an ill-advice and such a ground cannot successfully be urged in support of the plea for condonation of delay; A see Mst. Mehmooda Begum & others v.

5. Major Malik Muhammad Ishaq and others 1984 SCMR 890 and Bashir Ahmad v .Government of the Punjab and others 1985 SCMR 333.

6. The upshot is that we find no reason to interfere with the order of the High Court. This petition is, accordingly, dismissed.