BASHIR AHMAD vs MUHAMMAD SHARIF and 4 others

RANA BHAGWAN DAS, J.---Leave to appeal is claimed against order of a learned Judge in Chambers of the Lahore High Court, Multan Bench, dated 4-11-1998 dismissing a petition preferred by the petitioner seeking review of the earlier judgment dated 27-10-1998 whereby his Civil Revision Petition No,711 of 1997 was dismissed.

2. Petitioner filed a suit for specific performance of a contract of sale and on failure of the respondents to appear and contest the same obtained an ex parte decree on 25-71996. In proceedings under Order IX, Rule 13, C.P.C., by consent, dispute was referred to a referee who made a statement on oath before the Court that the decree had been obtained by fraud. Accordingly, it was set aside vide order dated 12-6-1997.

3. Instead of assailing this order in civil revision before the High Court, petitioner filed an appeal against this order before the District Court which was withdrawn on 6-12-1997 and the civil revision petition was filed before the High Court on 8-12-1997. This petition was heard by learned Single Judge in the High Court and dismissed as barred by limitation. While dismissing this petition learned Judge in the High Court held that no case was made out for condonation of delay in terms of section 5 read with section 14 of the Limitation Act.

4. Feeling aggrieved, petitioner moved a review petition before the High Court on the premise that learned High Court had ignored to consider the principle of law enunciated by this Court in Sherin v.

Fazal Muhammad 1995 SCM R 584 in which following observations were made:-- "Omission on the part of the District Court to take timely action was the major cause of re-filing the appeal by the appellant in the High Court, out of time. They have been victims of the act of the Court which is sufficient cause under section 5 of the Limitation Act for condonation of delay."

5. Learned High Court in review petition distinguished the aforesaid precedent with the observation that in the reported case valuation of the suit for the purpose of court-fee and jurisdiction indicated in the plaint was Rs,200 and delay was sought to be condoned on the ground that the valuation of the suit for the purposes of court-fee and jurisdiction was neither incorporated in the decree-sheet nor explicitly shown in the judgment of the trial Court. However, in the case in hand petitioner had himself valued the suit for court-fee and jurisdiction purposes at Rs,10,00,000.

Therefore, it could not be said that prosecution of appeal before the District Court was in good faith. Learned High Court relied upon judgment of this Court reported as Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102 in which according to valuation shown in the plaint an appeal could only be filed in the High Court but instead it was filed before the District Court; memorandum of appeal on return was presented before the High Court and the delay was sought to be condoned on the ground of a bona fide mistake; but the High Court dismissed the appeal as barred by time which was affirmed by this Court with the observation that "petitioner's advocate acted with gross negligence in filing the appeal in the District Court".

6. At the hearing Pir Kalim Khurshid, Advocate Supreme Court, learned counsel for the petitioner attempted to persuade us that the view taken by the learned Judge in Chambers was patently wrong as the petitioner had been prosecuting his remedy with due diligence and sufficient cause was shown for condonation of delay.

7. We are least impressed by the point reagitatd before this Court. Had the petitioner been diligent and careful in pursuing his remedy against the order setting aside an ex parte decree obtained behind the back of the respondents, he should have adopted a right course for approaching the right forum rather than filing an incompetent appeal before the District Court. It is elementary principle of law that an order setting aside an ex parte decree does not amount to a decree and in fact no decree is drawn. It was thus not appealable before the District Court.

8. Learned counsel urged that the petitioner was illiterate and ignorant of the legal proposition and he was at the mercy of the counsel. Suffice it to say mistaken advice of an advocate has not been accepted as a sufficient cause for condonation of delay and institution of legal proceedings before a wrong forum without due diligence has never been treated as prosecution of remedy in good faith and with due diligence. Section 14 of the Limitation Act permits the exclusion of time only for proceedings "prosecuted in good faith", therefore, in order to seek exclusion of time spent in legal proceedings, petitioner must prove' that he had acted in good faith while prosecuting his appeal in the wrong Court". As contemplated by section 2(7) of the Limitation Act "good faith" has been defined as "nothing shall be deemed to be done in good faith which is not done with due care and attention". In case the petitioner succeeds in showing that he filed his appeal in the wrong Court in spite of due care and attention it means that the presentation of appeal in the District Court was on account of circumstances beyond his control. Each case depends on its own facts and no hard and fast rule can be laid down but in the instant case it can hardly be said that the petitioner or for that matter his counsel acted with due diligence and in good faith.

9. Adverting to the plea that as the petitioner was illiterate and unaware of legal complications he should not be made to suffer for the act of his counsel on account of pendency of his appeal before the District Court, suffice it to say that ignorance of law has never been considered by the Courts as a valid excuse. As to the brief placed in the hands of the counsel it was equally important to ensure that the counsel acted with due diligence and did not demonstrate lack of care and prudence. Since the mistake in approaching the wrong forum was committed by his counsel due to gross negligence and it does not appear on the face of record that he had shown due diligence and caution before moving the wrong forum only remedy for the unlucky client appears to be to sue him for damages for the loss suffered due to his gross negligence. There is string of authorities that Courts could show indulgence and condone delay where time has been lost by pursuing remedy before wrong forum on account of bona fide mistake of counsel which a reasonable and prudent man exercising due diligence and caution might have committed. A reference may be made to Muhammad Saeed v. Shahabuddin PLD 1983 SC 385, Nek Muhammad v. Assistant Commissioner, Jhelum 1986 SCM R 1493, Ghulam Ali v. Akbar PLD 1991 SC 957 as well as Sherin v.

Fazal Muhammad (supra) relied upon by the petitioner himself. To our mind, petitioner's case does not appear to be a case of bona fide mistake with due diligence.

10. It may be observed that the petitioner was not made to suffer in the present case for the act of the Court because it was not the Court of District Judge who returned the memorandum of appeal after inordinate delay. It was rather the petitioner himself who withdrew the appeal after long period on realizing the defect of jurisdiction and apprehending dismissal of his appeal it being incompetent and unauthorisedly instituted. Petitioner in the circumstances was rightly non-suited as no ground was substantiated for the condonation of delay within the contemplation of section 5 and section 14 of the Limitation Act. Furthermore, petitioner shall have all opportunities to pursue his suit before the trial Court and no premium can be allowed in his favour after obtaining an ex parte decree by fraud and misrepresentation, which was rightly set aside.

11. For the aforesaid facts and reasons impugned order appears to be unexceptionable and does not admit of any interference by this Court. Petition for leave to appeal is, therefore, dismissed and leave refused.