Ch. MUHAMMAD SHARIF vs MUHAMMAD ALI KHAN AND OTHERS

1. ' HAMOODUR RAHMAN, C. J.-This is a petition for special leave to appeal from the judgment and order of a learned Single Judge of the Lahore High Court dismissing a second appeal as being barred by time.

2. ' The circumstances leading to the said second appeal were as follows :- ' The petitioner, it appears, had mortgaged a half portion of his Bungalow No, 5 situated in General Public Colony, Raiumyar Khan, with the respondent for Rs, 50,000. The said respondent brought a suit for foreclodure and sale on the 10th September, 1971 in which a preliminary decree was passed on the 24th May, 1912 and the petitioner, on his own request, was given time for payment of the mortgage money. He filed to make the payment by the date fixed. On his request, however, the time was further extended up to the 28th October, 1972. He again failed to make the payment within the aforesaid time but obtained another extension of time up to the 26th February, 1973. Even on this occasion, he failed to pay. Thereupon, the respondents moved an application on the 6th March, 1973 under Order XXX1v, rules 2 and 3 for a decree for foreclosure. The appellant was duly served with a copy of the said application and was given time up to the 28th March, 1973 to make a reply, but, instead of making a reply, he absented himself. Final decree for foreclosure was then padsed on the 3rd April, 1973.

3. ' The petitioner went up in appeal on the 8th May, 1973 but in spite of the fact that the amount of the mortgage was Rd. 50,000 the appeal was filed in the Court of the District Judge, Rahimyar Khan.

4. The District Court had no jurisdiction to entertain the said appeal but before the Memorandum of Appeal could be returned to the petitioner, his Advocate, on the 13th October, 1973, himself applied for taking back the Memorandum of appeal and presented it to the High Court on 13-104973 with a prayer for condo nation of delay under section 14 of the Limitation Act.

5. ' The High Court, after considering all the relevant decisions, came to the conclusion that the delay could only be condoned if the mistake was bona fide. In the present case the mistake was not a bona fide one.

6. The learned Advocate who acted for the petitioner in the Courts below has, in pursuance of the order of this Court dated 2nd December, 1974, now put in an affidavit saying that after enrolment as a pleader, he worked mostly on the rehabilitation and Settlement side and did very little work in criminal and civil Courts but in the year 1970 he switched over to the regular Courts and mainly worked in criminal Courts. He appeared in very few civil cases of small valuation which were invariably appealable to the District Judge This was the first appeal of high valuation filed by him in the Court of the District Judge under a misconception that since the Subject-matter was only a decrial amount in execution proceedings, the District Judge would have jurisdiction.

7. ' He was further misled into this belief by the fact that the office of the District Judge did not return the memorandum immediately, as is usually done in subordinate Courts, out the matter was dealt with on the judicial side as a properly filed appeal. The learned Advocate, however on coming to know of his mistake himself applied for the return of the memorandum of appeal.

8. ' We have heard the learned counsel at length and carefully examined all the decisions referred to by him and have come to the conclusion that this is a clear case in which the learned Advocate showed gross lack of care and his failure in such a case to acquaint himself with the relevant provisions of the law relating to the jurisdiction of the Courts amounted to negligence on his part.

9. ' The learned counsel has relied on the decision of the Privy Council in Kunwar Rajendra Bahadur Singh v. Rai Rajeshvar Bali (1) to support his contention that action taken "in good faith on the advice of counsel honestly given" is a sufficient cause for condoning delay. The finding in that case was that the view taken by appellants' counsel was not unreasonable and he could not be deemed to have been negligent in valuing the appeal. The facts here are altogether different. The correct value was known.

10. ' In the case of Nazar Muhammad vs. Mst. Shahzada Beguin (2), this Court also followed the Privy Council but again that was a case in which the wrong period of limitation had been calculated even after reference to a recognized textbook on the law of limitation. There is no evidence here that the learned Advocate concerned consulted any book or law on the point.

11. In the circumstances, the High Court was clearly right in refusing to condone the delay. We see no valid ground to interfere. The High Court has exercised its discretion in accordance with sound judicial principles.

12. ' This petition id accordingly dismissed. The caveat or prays for costd. There will be no order as to cost.