ISLAM DIN vs ALLAH NAWAZ and others

ORDER

' SHAFIUR RAHMAN, J.---The petitioner, a defendant vendee in a preemption suit, seeks leave to appeal against the judgment of the Lahore High Court dated 26-5-1986 whereby his civil revision was dismissed on the ground that the appeal from which it had arisen merited dismissal on the ground of being time-barred.

2. The pre-emption suit was filed by respondents Nos. 1 to 3 on 16-11-1980. The suit was decreed on 20-12-1982. Rs,70,000 was held to be the sale consideration of the price and Rs,42,000 the cost of improvement. First appeal was filed in the High Court on 5-2-1983 which was returned as incompetent on 11-5-1985 and was re-filed before the District Judge on 1-6-1985. This delay in presenting appeal in the proper forum was condoned by the District Judge, but the High Court took the view that "time taken beyond thirty days of the passing of decree subject, of course, to the exclusion of time taken in obtaining copies etc. Was wrongly condoned by the learned lower appellate Court. Although it cited those authorities in its judgment yet missed to note the rule laid down therein. It regarded that choosing of wrong forum was by reason of a genuine mistake. The dictum of the Supreme Court negates any such hypothesis and outright lays down that the remedy, if at all, is to sue the lawyer but in no case the delay could be condoned."

3. The learned counsel for the petitioner has submitted that it was a case of bona fide mistake on the part of the counsel for which the party should not have been penalised. In any case the District Judge before whom the appeal wda competent, had condoned the delay and the High Court was not justified I reversing that finding.

4. Keeping in view the decisions of this Court it cannot be said that the reasoning of the High Court in reversing the condonation of delay by the District Judge is against law or perverse. In the case of Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102, this Court held as follows:- " .Section 14 permits the exclusion of time only for proceeding `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: '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 hi appeal in the wrong Court despite due care and attention it means tha the presentation of the appeal in the wrong Court was on account of circumstances beyond his control. No doubt, what such circumstance 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 fact 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, 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 misguided 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 no 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."

5. We find that the view taken by the High Court is not liable to interference and leave to appeal is refused.