ABDUL MAJEED and another vs GHULAM HAIDER and others

ORDER

' NASIR ASLAM ZAHID, J---This petition has been filed seeking leave against the order dated 4-4- 1997 of a learned Single Judge of the Sindh High Court dismissing petitioners/plaintiffs Miscellaneous Appeal filed against the order dated 1-8-1995 of the trial Court dismissing application of the petitioners for grant of temporary injunction in the suit filed by them against the respondents. We have heard the arguments of Mr. Akhlaq Ahmed Siddiqui, learned Advocate-on- Record for the petitioners. Petitioners had filed the suit in the Court of the Senior Civil Judge, Badin, praying for a declaration that they are the exclusive owners of the suit-land; the registered shale- deed executed by the original owner, Syed Muhammad Iqbal Shah (respondent No,10) in favour of the other private respondents, after the sale agreement in favour of the petitioners, was mala fide and void and may be cancelled; and permanent injunction restraining the private respondents from interfering in the cultivating possession of the petitioners. In the suit, an application for interim relief was also filed but same was dismissed by the trial Court by order dated 1-.8-1995. The Trial Court inter alia held that the petitioners had failed to make out a prima facie case. It was noted by the Trial Court that, according to the petitioners, there was only a sale agreement in their favour executed by Syed Muhammad Iqbal Shah, the previous owner, whereas there was a registered sale-deed in favour- of the private respondents; petitioners had only asked for relief of declaration of ownership whereas the proper relief to have been asked was of specific performance of the agreement of sale; admittedly, the suit had been filed by petitioner No, 1 Abdul Majeed as the purchaser under the sale agreement and he had died prior to the filing of the suit, the suit itself having been filed by a dead person was patently not maintainable; and that the agreement of sale alleged to have been executed in 1992 by Syed Muhammad Iqbal Shah for a sale consideration of more than Rs,100 should have been registered whereas the sale-deed in favour of the private respondents was duly registered.

' Petitioners filed a miscellaneous appeal before the District Judge, Badin, which was marked to the IInd Additional District Judge on 3-5-1995. The Appellate Court by order dated 3-8-1995 admitted the miscellaneous appeal for hearing and ordered issuance of notice to the other aside.

' The suit had been valued for declaration at Rs,200 and at Rs,9,78,000 for cancellation of the registered sale-deed and Rs,200 for permanent injunction and maximum court-fee of Rs,15,000 was paid by the petitioners. In the circumstances, the appeal should have been filed before the High Court but, according to the mistaken advice of the advocate, the appeal was filed before the District Judge which was marked to the IInd Additional District Judge, Badin, for disposal. After about one and a half year, an application was moved on 20-3-1997 before the Appellate Court that, on account of bona fide mistake, the appeal had been filed before the District Judge and the same should have been filed before the High Court. On the same day, the Appellate Court passed orders for return of the memo. Of the appeal. The memo. Of the appeal was returned on 21-3-1997 and the same was presented in the High Court on 22-3-1997.

The High Court had dismissed the appeal as time-barred relying upon the judgment of this Court in the case of Chief Administrator of Auqaf v. Muhammad Raman (PLD 1991 SC 102), where it was observed that the ill-advice even by a lawyer is not a ground for extension of time limitation either under section 5 or section 14 of the Limitation Act. In this judgment reference was made to the following earlier judgments of this Court:-

(i) Abdul Ghani v. Ghulam Sarwar (PLD 1977 SC 102), Raj Muhammad v. Mst. Chan Bibi (1984 SCM R 1068), Mian Aizad Bakhsh v. Sheikh Muhammad Afzal (1985 SCM R 1003), Islam Din v. Allah .Nawaz (1998 SCMR 2), Chief Administrator of Auqaf v. Pir Aftab Hussain (1989 SCM R 606) and Manzoor Hussain v. Muhammad Ali (1989 SCM R 1498).

2. Mr. Akhlaq Ahmad Siddiqui, learned A.O.R. For the petitioners, has submitted that the appeal has been dismissed by the High Court only on the ground of limitation holding that the period during the appeal was pending before the Additional District Judge could not be excluded for purposes of limitation. Mr. Siddiqui has relied upon a later judgment in the case of Sherin v. Fazal Muhammad (1995 SCM R 584) where, while considering section 14 of the Limitation Act, it was observed that whether or not a person had acted diligently would depend on the circumstances of each case and that filing of an appeal in a wrong Court on account of mistaken advice tendered by the counsel on behalf of the appellant for condonation of delay by itself would not attract section 5 of the Limitation Act but, when the litigant and the counsel had acted with due care and caution and their conduct did not smack of negligence, the institution of appeal in the wrong forum could constitute a sufficient cause within the meaning of section 5 of the Limitation Act. According to Mr. Siddiqui, the order of admission of the appeal by the IInd Additional District Judge shows that he had heard the counsel for the petitioners and then had passed an order admitting the appeal for hearing and ordered issuance of notice to the other side. It was argued that there might have been carelessness on the part of the advocate for the petitioners but the Appellate Court did not point out at the time of the admission of the appeal that it had been filed before the wrong forum and, had it been so pointed out, petitioners could have taken back their memo. Of appeal and represented the same before the High Court within limitation period.

3. We do not consider it necessary in its case to consider the question of limitation as otherwise we are of the view that, on merits, no case had been made out by the petitioners. We find no error in the order of the trial Court in coming to the conclusion that no prima facie case had been made out by the petitioners. Admittedly the suit was filed by the two petitioners, namely, Abdul Majeed and Abdul Rashid, and the cause of action was based on the sale agreement executed by respondent Syed Muhammad Iqbal Shah, the previous owner, in 1992, in favour of Abdul Majeed.

Abdul Rashid, brother of purchaser Abdul Majeed is the only other plaintiff in the suit. Beneficiary of the agreement of sale was Abdul Majeed and admittedly he had died much prior to the filing of the suit. Then according to the trial Court, no prayer was made for specific performance of the agreement of sale and only declaration has been sought and that the agreement of sale in favour of deceased Abdul Majeed was unregistered whereas the sale-deed in favour of the private respondents was registered. On merits, the order of the trial Court did not call for interference.

4. Finding no merit in this petition, it is dismissed and leave is refused.