MEHTAB KHAN and others vs FAIZ MUHAMMAD

Mahtab Khan and others petitioners/plaintiffs filed suit for possession through pre-emption of house mentioned in the heading of the plaint. The said suit was resisted by the respondents/defendants by filing written statement. The learned trial Court after framing as many as 9 issues dismissed the suit vide judgment and decree dated 26-1-1999. Feeling aggrieved of the said judgment and decree, the petitioners/plaintiffs filed Regular First Appeal No,19 of 1999 in this Court on 19-2-1999. The said appeal was, however, returned to the appellants vide judgment/order dated 5-11-2001. The petitioners/plaintiffs thereafter filed Appeal No,39/13 of 2001 in the Court of learned District Judge/Zilla Qazi Malakand at Batkhela. The said appeal was dismissed as being barred by time vide judgment and decree dated 9-2-2002. Being not content with the judgments and decrees of the Courts below, the petitioners have now filed revision petition in hand.

2. Haji Muhammad Zahir Shah, Advocate the learned counsel for the petitioners argued that the petitioners were in fact bonafidely mistaken by the findings of the learned trial Court in Issues Nos.6 and 7, wherein the learned trial Court had fixed the market value of the suit house as Rs,5,50,000, therefore, they filed appeal before this Court. The said appeal was filed in time, which was admitted to regular hearing on 12-3-1999. On the objection of the learned counsel for the respondent during the course of arguments the appeal had been returned to the appellants on 5-11-2001 and he immediately filed appeal before the learned District Judge. Alongwith the appeal an application for condonation of delay under section 14 of the Limitation Act was also moved, but the same was not considered by the learned trial Court and without recording any evidence regarding condonation of delay, the appeal was dismissed. Reliance in this respect was placed Sajawal Khan v. Wali Muhammad (2002 SCM R 134).

3. On the other hand Mr. Sher Muhammad Khan, the learned counsel representing the respondent argued that not only in the judgment passed by the learned trial Court but in the decree-sheet also the suit was valued for Rs,1,50,000, therefore, there was no occasion for the petitioners to be misled by the findings regarding the market value of the house in dispute.

4. It was also argued that when the respondents raised objection before this Court on 5-11-2001 regarding the valuation of the appeal as well as about the jurisdiction of the Court to decide the said appeal, the learned counsel representing the petitioners (then appellants) had admitted the mistake on which the appeal had been returned to them. The appeal filed before the learned District Judge was hopelessly barred by time, therefore, the same had rightly been dismissed.

Reliance in this regard is placed on Abdul Majeed and another v. Ghulam Haider and others (2001 SCM R 1254).

5. I have heard the learned counsel for the parties and perused the record.

6. Admittedly the suit filed by the petitioners/plaintiffs was dismissed vide judgment and decree, dated 26-1-1999 by the learned Civil Judge/Illaqa Qazi, Malkanad at Batkhela. No doubt while deciding Issues Nos.6 and 7 the learned trial Court held that the market value of the suit house was Rs,5,50,000, but the perusal of the plaint as well as decree-sheet shows that the suit had been valued for Rs,1,50,000. It is by now settled law that a forum of appeal is to be determined according to the value of the suit as mentioned in the plaint and not according to the market value of the property fixed by the learned trial Court. If any judgment to support this proposition is required reliance can safely be placed on Muhammad Ayub and 4 others v. Dr. Obaidullah and 6 others (1999 SCM R 394) and Chairman, WAPDA, Lahore and 3 others v. Muhammad Ali Khan (2001 YLR 2138). The suit, as mentioned above, was valued for Rs,1,50,000, therefore, the Appellate Court was to be determined according to the said valuation. The learned District Judge had the jurisdiction to hear such appeal and this Court had rightly returned the appeal to the petitioners.

7. The question that requires determination in this case is as to whether wrong advice of the counsel could be ground for condonation of delay, because in the application submitted by the petitioners before the learned District Judge for condonation of delay in filing the appeal, the only ground urged was that the appellants were advised by their counsel to file appeal before this Court (High Court). Answer tO this question is in negative. It has been held number of times that wrong advice of a counsel or negligence/mistake of the counsel was no reason for condoning the delay. A similar question came up for hearing before the august Supreme Court of Pakistan in Abdul Majeed and another v. Ghulam Haider and others (2001 SCM R 1254) in which it was held that wrong advice or ill-advice of the counsel was not a ground for extension of time of limitation either under section 5 or section 14 of the Limitation Act, 1908. Similar dicta were laid down in Raj Muhammad v. Mst, Chan Bibi and others (1984 SCM R 1068), Mian Azad Bakhsh v. Sheikh Muhammad Afzal (1985 SCM R 1003), Ismail Din v. Allah Nawaz and others (1988 SCM R 2) and Manzoor Hussain and 2 others v.

Muhammad Ali and another (1989 SCM R 1498).

8. Since the wrong/ill-advice of the counsel was not accepted to be a valid ground for condonation of delay, therefore, the learned Appellate Court while relying on the above mentioned judgments has rightly dismissed the appeal tiled by the petitioners. I have not been able to find out any illegality or material irregularity in the impugned judgments and decrees of the Courts below warranting interference by this Court. Resultantly, the revision petition in hand is dismissed with no orders as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.