GHULAM ALI vs AKBAR alias AKOOR and another

1. ' SAJJAD ALI SHAH, J.---In this appeal by leave, is called in question, judgment dated 8-3-1988 of learned Acting Chief Justice of High Court of Balochistan, whereby application under section 5, read with section 14 of the Limitation Act of 1908, was dismissed and in consequence appeal was dismissed as hopelessly time-barred.

2. ' Briefly stated the relevant facts giving rise to this appeal are that appellant before us filed Suit No,179/80 in the Court of Civil Judge First Class, Lasbella at Hub against both respondents for specific performance of contract dated 13-8-1979 and possession of land described therein.

3. Alternatively claim was made for recovery of Rs, 29,000 being amount of part-payment of sale consideration and Rs, 2,00,000 as damages from respondent No,1 namely Akbar alias Akoor for having failed to perform his part of contract. In the written statement execution of agreement and payment of Rs, 24,000 as earnest money were admitted but other averments were disputed and blame was thrown on plaintiff in the suit for his failure to pay the balance amount of sale consideration within the prescribed time. It was further claimed in the written statement that on automatic cancellation of contract, suit land was sold by defendant No,1 to defendant Not in the suit. On the other hand, defendant No,2 took stand in the written statement that suit land was purchased by him in the year 1966 and stood mutated in his name in the record of rights, as such could not be sold subsequently by any person in 1979 by agreement. Keeping in view the pleadings of the parties, seven issues were framed. In evidence, plaintiff examined himself and one other witness. Defendant No,1 examined himself and two witnesses. Defendant No,2 examined his attorney. Vide judgment dated 30-6-1986, suit was dismissed with direction to defendant No,1 to pay to the plaintiff Rs,24,000.

4. ' Against dismissal of suit, plaintiff Ghulam Ali filed CA. No, 42/1986, before District Judge, Khuzdar on 30-8-1986, which was heard and subsequently dismissed on 23-7-1987. Ghulam Ali then filed Second Appeal No, 3/1987 in the High Court of Balochistan, during hearing of which objection was raised that in view of section 18 of Civil Courts Ordinance, 1962, appeal was not competent as subject-matter of original suit exceeded Rs, 50,000. Vide order dated 7-10-1987, passed by Division Bench appeal was converted into revision, which was partly accepted. In the result, judgment and decree dated 23-7-1987 of District Judge Khuzdar in appeal before him were set aside as having been passed without jurisdiction and lawful authority. Appellant Ghulam Ali was further allowed to approach first Appellate Court for return of memo of appeal for presentation before the Court of competent jurisdiction according to law including limitation. On 22-10-1987, application was moved before District Judge, Khuzdar, for return of memorandum of Appeal and the needful was done vide order passed on 27-10-1987. Consequently Ist Appeal No, 44/1987 was filed in the High Court of Balochistan, accompanied by application under section 5 read with section 14 of the Limitation Act 1908 for condonation of delay and to exclude the time from 28-8-1986 to 2-11-1987 for filing the appeal. Vide impugned order dated 8-3-1988, application under sections 5 and 14 of the Limitation Act was dismissed and also appeal was dismissed as time-barred on the ground that in view of the Civil Courts Ordinance, 1962, it was duty of the counsel to check up the law and see if the appeal had been filed in the proper forum and in the circumstances, mistaken advice of the counsel would not extend the period of limitation.

5. 'Leave has been granted to consider with reference to certain cases decided by this Court that whether on the facts and circumstances of this case, the request for condonation of delay was legitimate and ought not to have been declined by the High Court. Coming back to the brass-tacks in the instant case, the suit was for specific performance and for the purposes of court-fees and jurisdiction was valued at Rs, 2,29,000 and court-fees paid thereupon as is stated in para 13 of the plaint, copy of which is in the paper-book at page 29. Now since the value of the subject-matter in the suit was more than Rs, 25,000 appeal lay in the High Court as is contemplated by section 18 of West Pakistan Civil Courts Ordinance, 1962. This was not done and instead appeal was filed in the District Court, which was registered as C.A. No, 42/1986 and dismissed on merits on 23-7-1987 after hearing both parties and during the hearing no objection was raised that appeal was not maintainable in that forum. Not only that but after dismissal of appeal, Second Appeal No, 3/1987 was filed in the High Court and during hearing of which objection was raised with regard to the maintainability of appeal as stated above and appellant was allowed to make request for return of memorandum of appeal as it could not have been disposed of for lack of jurisdiction in that forum and subsequently First Appeal No, 44/1987 was filed in the High Court on 3-11-1987 seeking condonation of delay from 28-8-1986 to 2-11-1987 which comes to 15 months and 5 days. This delay was sought to be condoned on the ground that by mistake of the counsel appeal was filed in the Court of District Judge, where no objection was raised with regard to its maintainability and was disposed of on merits and dismissed. During the hearing of second appeal in the High Court, objection was raised and mistake was discovered that against the dismissal of suit on account of lack of pecuniary jurisdiction appeal did not lie in the Court of District Judge but was to be filed in the High Court. This was so stated in the affidavit filed by Ghulam Ali in support ' of application filed under section 5 read with section 14 of the Limitation Act which was filed alongwith memo of first appeal after return of memorandum of appeal from the Court of District Judge. Under section 5 of the Limitation Act, delay can be condoned if appellant satisfies the Court that he had sufficient cause for not preferring the appeal within the period prescribed therefore.

6. Section 14 of the Limitation Act envisages that in computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of Appeal, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court, which, from defect of jurisdiction or other cause of like nature is unable to entertain it. When both these sections 5 and 14 of the Limitation Act are read in juxtaposition with each other, it would appear clear that only that delay is condonable which had occurred in spite of the fact that the plaintiff had prosecuted his case with due diligence. So the question will arise whether in exercise of due diligence mistake was discoverable or not. In other words, if mistake is such that it is expected to be discovered in exercise of due diligence, then it would not be condoned but if it was on account of some such circumstances that in the exercise of due diligence, the mistake could not be discovered only then it would be condonable.

7. ' In the instant case, it is stated that the mistake was of the counsel, who thought that appeal was maintainable before the District Judge. Had the counsel exercised due diligence, he would have certainly discovered that value of subject-matter in the suit was more than Rs,25,000 as such appeal was not- competent before the District Judge but in the High Court. Bar of jurisdiction is so provided under section 18 of the Civil Courts Ordinance, 1962. The counsel is expected to know this legal position correctly as to where the appeal is to be filed. There is no gainsaying the assertion that the other side did not raise objection and it was not pointed out by Court that appeal was not maintainable but the Court proceeded further and disposed of the appeal on merits. These questions had come up for consideration before the Supreme Court in the context of interpretation of sections 5 and 14 of the Limitation Act in the case of Abdul Ghani v. Ghulam Sarwar, reported in PLD 1977 Supreme Court 102, in which the facts were similar inasmuch as the appeal was filed in the District Court due to wrong advice of the counsel who claimed to have been misguided by the District Court inasmuch as that Court granted him interim injunction and further that the appeal was transferred to Additional District Judge. It is held in that case that section 14 of the Limitation Act applies only to suits and permits exclusion of time only for proceedings "prosecuted in good faith" and 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 Limitation Act as nothing shall be deemed to be done in good faith which is not done with due care and caution. Further observation from the judgment in that case is reproduced as under:-- 'Now if an appellant proves that he filed his appeal in the wrong Court despite due care and attention it means that presentation of the appeal in the wrong Court was on account of the circumstances beyond his control. No doubt, what such circumstances 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 wrong Court because the facts 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 proper forum for filing the appeal. It is clear that presentation of appeal in the District Court was an act of gross negligence."

8. In nutshell, rule laid down by Supreme Court of Pakistan in the case of Abdul Ghani mentioned and quoted above, is that time consumed in pursuing appeal in the wrong forum cannot be condoned under section 5 of the Limitation Act on the ground that no objection was raised in that forum that appeal was not maintainable or such defect was not noticed by that forum and further mistake of the counsel in choosing wrong forum cannot be treated as an act done in good faith as the same is not done with due care and caution and would not amount to sufficient cause as contemplated under section 5 of the Limitation Act. This is good law and holds the field.

9. ' The counsel for the appellant before us has not been able to convince us why rule laid down in Abdul Ghani's case should not be followed. He had cited the case of Haji Abdullah Khan and others v. Nisar Muhammad Khan and others, reported in PLD 1965 Supreme Court 690, in which it is held that a party is not hound to engage a counsel. Whatever law becomes applicable on the admitted or proved facts, it has to be given effect to whether or not it has been relied upon by a party. In that reported case facts were entirely different and the Court was considering the effect of interpretation of section 4 of Kabul River Project (Control and Prevention of Speculation in Land)

10. Act, 1948, which prohibited alienation of "project land" and not an agreement for sale. Contention was raised that whenever sale of land was prohibited, agreement for sale without sanction should also be regarded as prohibited on the grounds of public policy. This contention was not accepted and it was held that it was open to the parties to enter into an agreement subject to compliance with condition precedent. Attack on agreement for sale on the ground of public policy could only succeed if it was shown that the intention of the agreement was to defeat a law. Questions arose in Supreme Court for consideration whether effect of minority of plaintiffs on the validity of agreement for sale and whether agreement should be specifically enforced in a suit by minor were pure questions of law or mixed questions of law and facts. It was in that context that observation was made that those questions were questions of law and it was duty of the Court itself to apply the law. A party was not bound to engage a counsel. Whatever law becomes applicable on the admitted or proved facts, has to be given effect to whether or not it has been relied upon by a party. It is apparent that facts of the reported case are different and distinguishable from the case under consideration.

11. ' Further, condonation of delay under section 5 of the Limitation Act sought on the ground of ill- advice of the counsel was not accepted in the case of Mst. Mahmooda Begum and others v. Malik Muhammad Ishaq and others, reported in 1984 SCMR 890. It was further held in that case that if the client has suffered on account of ill-advice by the counsel, redress could be sought against the counsel but delay cannot be condoned.

12. For facts and reasons stated above, we find no reason to interfere with the impugned judgment, which is hereby upheld and the appeal is dismissed with no order as to costs.