1. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---Through this application under section 14 of the Limitation Act, 1908, the appellant has prayed that the period consumed in pursuing the Reference Application No,382/KB of 2001 before the learned ITAT and Wealth Tax Reference No,225 of 2001 before the High Court, may be excluded from the period of limitation for the purpose of filing appeal before the High Court prescribed under section 27 of the Wealth Tax Act, 1963.
2. ' Briefly stated the relevant facts are that prior to 1st July, 1997, a reference was provided under the Wealth Tax Act, 1963, as well as Income Tax Ordinance, 1979. Under these provisions the reference application were to be filed in the first instance before ITAT. In case of acceptance of application reference was made to High Court. However, if reference application was rejected the aggrieved party could file reference application before High Court. Through the amendment introduced by Finance Act, 1997, the provisions for filing reference application before the Income Tax Appellate Tribunal (hereinafter referred to as the I.T.A.T.) under the Wealth Tax Act, 1963, and Income Tax Ordinance, 1979, were substituted by direct appeal to the High Court. Subsequently, by Finance Ordinance, 2000, the original provision as existing up to 30th June, 1997 was restored so far, the Income Tax Ordinance, 1979, is concerned. Consequently, the reference application under section 136(1) of the Income Tax Ordinance, 1979 was to be filed before the Tribunal in the first instance and in case of rejection of the reference application by the Tribunal, it was to be submitted before the High Court under section 136(2) of the Income Tax Ordinance, 1979. Prior to the amendment introduced by Finance Act, 1997, similar provision was contained in section 27 of the Wealth Tax Act, 1963. However, the amended provision of filing appeal before the High Court instead of the reference application before the Tribunal was left intact in respect of Wealth Tax Act, 1963.
3. ' The order of the Tribunal assailed in this appeal was passed on 15-2-2001. In accordance with the amended section 27 of the Wealth Tax Act, 1963, an appeal was required to be filed before the High Court. However, the learned counsel for the appellant under the wrong impression that by Finance Ordinance, 2000, the original position as existing up to 30th June, 1997 has been restored in the similar manner as in the case of Income Tax Ordinance, 1979, filed reference application before the I.T.A.T. Instead of filing the appeal before this Court. The reference application was filed within the period of limitation originally prescribed for filing the reference application before the Tribunal and through subsequent amendment for filing the appeal before the High Court. The reference application submitted by the appellant was scrutinized by the Tribunal's office but no objection was raised to the maintainability of the reference application and the reference application was entertained and duly registered as R.A. No,382/KB of 2001. It was fixed for hearing before a Division Bench of the Tribunal which was heard on 15-9-2001. The departmental representative raised no objection to the maintainability of the reference application before the ITAT and even the learned members of the Tribunal did not take notice of the fact that after 1-7-1997 there was no provision for submission of reference application before the Tribunal and the appeal was to be preferred before the High Court. Vide order dated 19-9-2001 the reference application was allowed and the questions proposed were referred to the High Court after preparation of paper book.
4. ' The reference was received in the concerned branch of High Court on 28-11-2001, on 27-1-2002 an application was submitted on behalf of the learned counsel for appellant for vermilion to file certain documents in this Court for placing with the reference application. The office raised objection to the maintainability of the application for the reason that the reference application was received from the Income Tax Appellate Tribunal and there was no provision for receiving copies of any documents not forwarded by the ITAT. The Assistant Registrar asked the learned counsel to show the provision of law under which the documents can be directly filed in the High Court for placing in a reference forwarded by the Tribunal. The learned counsel was not able to show any provision of law in this regard and consequently, the matter was placed before the Court to.Consider the objection. It came up for hearing on 8-3-2002 when notice was taken of the fact that there was no provision for filing of reference application before the Tribunal after the amendment inserted in section 27 of the Wealth Tax Act, 1963, by Finance Act, 1997 with effect from 1-7-1997.
5. ' The learned counsel for the appellant candidly conceded at that stage that the correct legal position was that the reference application before the Tribunal was not in accordance with the law.
6. He stated that the learned counsel himself acted in a manner not warranted in law and the Assistant Registrar of the Tribunal, the departmental representative and the learned members of the Tribunal also acted illegally and in the manner not warranted in law. He conceded that the reference made by the Tribunal was not maintainable and consequently it was rejected. This order was passed on 8-3-2002, which was Friday. The appellant thereafter submitted this appeal before High Court on 11-3-2002. An application under section 5 of the Limitation Act was submitted along with the memo. Of Appeal praying for condonation of delay in presenting the appeal before this Court on the ground that it was on account of bona fide mistake. The said application came up for hearing on 8-9-2005 and it was again pointed out to Mr. Farogh Naseem that section 5 of the Limitation Act was not applicable to the proceedings under the Wealth Tax Act, 1963. Mr. Farogh Naseem, again candidly conceded to this legal position and sought time to file application under section 14 of the Limitation Act, praying for exclusion of time spent in prosecuting the proceedings which were not maintainable for want of jurisdiction. Thereafter this application has been submitted.
7. ' We have heard Mr. Farogh Naseem, learned counsel for the appellant and Mr. Aqeel Ahmed Abbasi, learned counsel for the respondent.
8. ' Mr. Farogh Naseem, has submitted that there was a bona fide mistake on his part in presenting reference application before the Tribunal under wrong impression that after restoration of the original procedure in the Income Tax Ordinance, 1979, by Finance Ordinance, 2000, the similar amendment has been made in Wealth Tax Adt, as well. He has further submitted that this wrong impression was not entertained by him alone but by the office of the Tribunal, the departmental representative who was duly served with the notice of reference application, as well as by the learned Members of the Tribunal. None of them raised any objection to the maintainability of the reference application. He has submitted that if Tribunal's office on scrutiny of the reference application would have raised the objection, the appellant could conveniently file appeal before High Court within the period of limitation provided in law. He has therefore, submitted that the time consumed in pursuing the proceedings which were without jurisdiction, with due diligence on account of bona fide mistake may be excluded from the time of limitation provided for filing appeal before this Court. In support of his contention he has placed reliance on a Division Bench judgment of the Lahore High Court, in the case of Aftab Medical Store v. Commissioner of Income Tax PLD 1976 Lah.
9. 1330.
10. ' On the other hand, Mr. Aqeel Ahmed Abbasi, learned counsel for the respondent has vehemently opposed the application contending that there were multiple defaults on the part of the appellant and, therefore, the period spent in pursuing the proceedings which were without jurisdiction may not be excluded from the period of limitation. While explaining the multiple default on the part of the appellant he submitted that in the first instance the reference application was filed before the Tribunal contrary to the provisions of law, and, secondly, when the reference was dismissed by this Court as not maintainable, the application under section 5 of the Limitation Act, was submitted which provision was not attracted. After the dismissal of application under section 5 of the Limitation Act, on the ground that it was not applicable to the proceedings under the Wealth Tax Act, 1963, the present application under section 14 of the Limitation Act, has been submitted on 13- 9-2005, which ought to have been submitted on 11-3-2002 when the appeal was filed before this Court.
11. ' We have considered the -contentions raised by the learned Advocates for the parties. We are of the opinion that the ratio of judgment in the case of Aftab Medical Store (supra) is not attracted to the facts and circumstances of this case, However, the facts and circumstances in the case of Sherin v. Fazal Muhammad 1995 SCM R 584, are similar to the facts and circumstances in this case.
12. The Hon'ble Supreme Court has observed in the above case as follows:--- "In our system of law, what a litigant, placed in the situation, as the appellants were, has to do for redress of his grievance, through a Court of law, is to engage a counsel. This the appellants did. It seems to us that they did not make contribution, in the institution of the appeal in the District Court.
13. There is no allegation that they stood to gain thereby or were guilty of any mala fide conduct. The filing of appeal in the District Court, is entirely attributable to the carelessness of the appellant's counsel.. He represented them in the trial Court and was not unaware of the amount of the court- fee paid on the plaint by the respondents, on the objection of the appellants, which determined the forum of appeal. He also appeared for the appellants in the High Court. It seems that he is a Senior Advocate. We may say, and say so with respect that of late, unfortunately there has been a tendency of some decline in the proficiency of the members of this noble profession, practising at the Bar. It is high time that the Bar Councils in the country should take notice of it and adopt measure to arrest this tendency. If the law has to march with the changing time, some restraint needs to be exhibited by the Court, in imposing too large a burden on a litigant, for the lapses of his counsel."
14. In the present appeal, the appellant engaged a reputed law firm in the field of Tax Laws and there was no negligence on the part of the appellant. The lapse was on the part of the learned counsel.
15. In the cited case, Hon'ble Supreme Court observed that the appeal was presented in the office of District Judge, which was registered without any objection. The appeal was enlisted for hearing before the learned District Judge and after preliminary hearing it was admitted to regular hearing and notice was issued to the opposite party. Thereafter, the appeal came up for hearing before the learned District Judge on eleven dates, which was adjourned for one reason or the other.
16. Subsequently on objection by the counsel for respondent, the learned District Judge passed order for return of the Memorandum of Appeal to the appellant for presenting the same in proper Court.
17. The Hon'ble Supreme Court further observed that the learned District Judge held up the appeal for a period of 10 months in discovering that it had no jurisdiction and that the appeal should have been filed in the High Court. The appeal instituted in the District Court was still within time. When it was instituted in the District Court a period of more than two months was available to the appellant for filing the appeal before the High Court. Had the learned District Judge applied his mind to record and returned the Memorandum of Appeal without undue delay, he could have filed the appeal before the High Court within the period of limitation.
18. ' The Hon'ble Supreme Court further adverted to the question whether it was obligatory for the learned District Judge to return the Memorandum of Appeal to the appellants so that it could be filed by them in the High Court without delay. In these circumstances, the provisions contained in Order VII, Rule 10, C.P.C. Requiring the Court to return the plaint for presentation to the proper Court were considered and it was considered whether in the absence of such specific provisions pertaining to Appellate Court the similar exercise is to be done by the Appellate Court. With reference to the provisions contained in section 107(2), C.P.C., it was held that since the provisions in Order 41 or elsewhere in the C.P.C. Do not furnish complete procedure for the appeals, the Appellate Court can exercise jurisdiction for taking the appellate proceedings to the stage of completion if the provisions in the law do not cater all the eventualities. The Hon'ble Supreme Court considered the issue in the broader perspective and held as follows:--- "12. The provisions of Order VII, Rule 10 are mandatory and when the Court has no jurisdiction to hear the suit it is under the compulsion to return the plaint for presentation before the proper Court.
19. There is no reason to whittle down the imperative character of this provision while applying it to the appellate Court. It is noteworthy that section 107, as already stated, is titled as "powers of the appellate Court". From jurisprudential point of view sometimes a distinction is drawn between "power" and "duty". We feel, so far as a judicial functionary is concerned, the distinction is ethereal, when power is conferred on the Court or a quasi-judicial Tribunal for the benefit of the litigant. In such a case, exercise of power should be treated a compulsive. In East Suffolk Rivers Catchment Board v. Kent and another 1941 AC 74 (at p.90) Lord Atkin, after referring to some decisions of House of Lords, observed:--- ' I treat it therefore as established that a public authority whether doing an act which it is its duty to do, or doing an act which it is merely empowered to do, must in doing the act do it without negligence, or as it is put in some of the cases must not do it carelessly or improperly. Now quite apart from a duty owed to a particular individual which is the question in this case I suggest that it would be difficult to lay down that a duty upon a public authority to act without negligence or not carelessly or improperly does not include a duty to act with reasonable diligence by which I mean reasonable dispatch'."
20. It is to be noticed that all public authorities including the judicial functionaries while doing an act enjoined by law or merely empowered to do it must not do it improperly. An action may lie against a public authority for misfeasance or non-feasance but for the sake of safe administration of justice and good sense no action lies for the breach of duty when the duty tq perform is judicial or quasi-judicial. There may be a variety of reasons for omission or failure in performing such duty or exercising power with reasonable dispatch such as delaying tactics of the parties to the action multiplicity of pending cases in the Court or intricacies of questions of law and facts raised before it. As stated at page 75 in Broom's Legal Maxims- "Cases, however, have occurred, in which injury was caused by the act of legal tribunal, as by the laches or mistake of its officer; and where, notwithstanding the maxim as to actus curiae, the injured party was without redress". Presumably the need to mitigate the rigor of the hardship inflicted on a party in the course of administration of justice, by an act of the Court, led to the emergence of the norm that "the act of the Court shall prejudice no man".
13. We may refer here with advantage to the classic remarks of Lord Eldon in Pulteney v. Warren (1801) 6 Ves. 73,92, quoted by Maclean, C.J., in Lakhan Chunder Sen v. Madhu Sen (ILR 35 Calcutta 209):--- "If there be a principle, upon which Courts of justice ought to act without scruple, it is this; to relieve parties against that injustice occasioned by its own acts or oversights at the instance of the party, against whom the relief is sought. That proposition is broadly laid down in some of the cases." This view was approved of by the. House of Lords in the East India Company v. Campion (1837) 11 Bli.
21. (N.S.) 158."
22. ' In the same strain are the observations of Lord Cairns, L.C. In Rodger v. The Comptoir d' Escompte de Paris (1871) 3 P.C. 465, quoted with the approval by Lord Carson in Jai Berham v. Kedar Nath AIR 1922 PC 269: "One of the first and highest duties of all Court is to take care that the act of the Court does not cause injury to any of the suitors and when the expression 'the act of the Court', is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of Appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case."
23. ' More recently a practical application of this rule, which perhaps is in somewhat close proximity of the case in hand is demonstrated in Hidayatullah v. Murad A. Khan PLD 1972 SC 69, when this Court stepped into relieve the appellants before the Court, of the wrong caused to them by the act of the trial Court. This was a case in which the preemptors were required by the trial Court to deposit "Zare Punjam" in cash by 6th January, 1968. They, however, applied to the Court on 6th December, 1967 for grant of permission to furnish security in place of cash deposit but instead of disposing of their application, the Court adjourned it to 6-1-1968, on which it rejected the application and also refused to enlarge time for cash deposit. Hamoodur Rehman, C.J. Who spoke for the Court noticed that had the trial Court disposed of the application soon after it was filed, the difficulty faced by the pre-emptors would not have arisen and maintained:--- "There was as we have already pointed out, a very good and substantial reason for the extension of time, because, even assuming that no application was made by the appellants for such extension of time, the Court, in the interest of justice, was fully competent suo mote to extend the time when it had by its own act made it practically impossible for the appellants to comply with its original order by adjourning the application for furnishing security to the 6th of January, 1968."
14. The stage is now set down to evaluate the effect of the learned District Judge's failure in returning the memorandum of appeal to the appellants with reasonable dispatch. It is correct that the appellants themselves were at fault, in filing the appeal in the District Court, which was not possessed of the pecuniary jurisdiction to hear it. But, let the appellants' mistake be there, a searching question needs to be asked had the learned District Judge, no reason to look into the existence or otherwise of the jurisdictional facts upon which the entertaining of the appeal by him was dependent, though not in-depth, but at least prima facie; through a preliminary enquiry confined only to the cursory examination of the record before him. We are unable to show him any indulgence, in this regard. We are sure had he glanced through the record, the agony of the appellants would not have prolonged. In Hari Ram v. Akbar Hussain (ILR 29 All. 749) a Full Bench of the Allahabad High Court had the occasion to adjudicate upon the defendants' objection, in a pre- emption suit that mistake in court-fee by a party is not covered by section 28 of the Court Fees Act, 1870, and it applied only when a document not properly stamped, was received and used by the Court or Office by mistake or inadvertence. The objection was repelled with the observations which are quite instructive:--- "The mistake may in its origin be the mistake of the plaintiff; by the time the plaint has been registered, the mistake has become the mistake of the Court. If the Court or the Munsarim discovered the plaintiff's mistake before registration of the plaint, the plaint would at once be rejected under section 54 of the Code of Civil Procedure and never registered at ' We feel that omission on the part of learned District Judge to take timely action is the major cause of refilling of the appeal by the appellants, in the High Court, out of time. They have been the victim of the act of the Court which furnishes "sufficient cause" under section 5 of the Limitation Act, for condonation of delay. The fact that after, receiving the memorandum of appeal from the District Court, some time was consumed by the appellants, in presenting it to the High Court, in the circumstances of the case is inconsequential. We are, therefore, inclined to condone the delay in presenting the memorandum of appeal to the High Court.
24. As already observed in this case, not only the learned counsel for the appellant, but the departmental representative, Assistant Registrar of the Tribunal and the learned members of the Tribunal also failed to perform their duty by not applying their mind to the correct legal position.
25. Even the office of this Court on receiving the reference from the Tribunal on 28-11-2001, did not advert to the point of jurisdiction and non-maintainability of the reference. The learned counsel for the appellant submitted an application on 17-1-2002, with a request to receive the documents not forwarded by the Tribunal and the permission to bring the same on record. The office raised objection to the maintainability of the said application only. When the matter was placed before the Court to consider the objection to the maintainability of the application for bringing the documents on record it was noticed by Judges only that the reference made was without jurisdiction. Thus, everybody concerned has contributed in the negligence in taking the appellant to a difficult situation and making him victim of the circumstances. This agony of the appellant is not on account of any fault on his part, but on account of mistake on the part of his advocate and non-application of mind on the part of Tribunal's office, the representative of the respondent/department as well as the members of the Tribunal. This is an extra ordinary situation and the dictum laid down by the Hon'ble Supreme Court that that, "the need to mitigate the rigor of the hardship inflicted on the party in the course of administration of justice, by an act of the Court, led to the emergence of the norm that "the act of the Court shall prejudice no man", is fully applicable.
26. While considering the principle that on account of act of the Tribunal the injured party (appellant) has been left without redress and that the Courts of justice ought to act without scruple to relieve party of that injustice occasioned by its own acts or oversights at the instance of party, against whom the relief is sought, we have found another hurdle in the way of appellant, which has not been adverted to by any of the learned Advocates. In the case of Sherin v. Fazal Muhammad (supra), the Hon'ble Supreme Court has held that section 14 of the Limitation Act, applies only to the suits and applications and not to the appeals. On the other hand, section 5 is applicable to the appeals but it does not apply to suits. The Hon'ble Supreme Court has further held that the question of condonation of delay, therefore, has to be examined on the basis of section 5 and not section 14 of the Limitation Act. Not unoften, while examining the question of condonation of delay in filing the appeals the Courts have been invoking the principles underlying section 14 of the Act. In the cited case also Peshawar High Court, declined to condone the delay of the touchstone of section 14. The Hon'ble Supreme Court further held that the filing of appeal in a wrong Court on account of mistaken advise tendered by the counsel canvassed on behalf of the appellants for condonation of delay by itself would not attract section 5 but when the litigant and the counsel have acted with due care and caution and their conduct does not smack of negligence, the institution of the appeal in the wrong forum may constitute a 'sufficient cause' within the meaning of section 5 for condonation of the delay. Thus, the Hon'ble Supreme Court held that delay in filing appeal can be condoned under section 5 of the Limitation Act and not under section 14, which is applicable to the suits and applications and not to appeals.
27. The peculiar circumstances of this case are that the appeal under consideration has been filed under section 27 of the Wealth Tax Act, 1963, which is a special law. The period of limitation is also provided in section 27 of the Wealth Tax Act, itself. The result is that application of section 5 of the'
28. Limitation Act, is excluded while section 14 of the Limitation Act, is applicable by virtue of the provisions contained in section 29(2) of the Limitation Act, which is not applicable to appeal.
29. ' The question for consideration is that in the absence of express provisions of law applicable to the appeal whether any indulgence can be shown to the appellant and the Court can come to the redress of the appellant.
30. ' Had it been a civil appeal the delay could have been condoned by taking guidance from the judgment of Hon'ble Supreme Court in the case of Sherin (supra). However, on account of the appeal being under special law, section 5 Limitation Act, is not applicable by virtue of provisions contained in section 29(2) of the Limitation Act, and section 14 of the Limitation Act, which is applicable to the proceedings, under special law also, is not attracted to appeal as held by the Hon'ble Supreme Court. It is a very extraordinary situation, where on one hand, there is law laid down by the Hon'ble Supreme Court that the act of Court shall not prejudice any person coupled with the general principle of law that nobody should be left without any redress and on the other hand, there is no specific provision in the Limitation Act, under which the Court can come to the redress of the appellant. In these circumstances, we are of the considered opinion that the only way left out is to treat the appeal as petition under Article 199 of the Constitution, on the ground that no remedy is available to the appellant in the facts and circumstances of this case. We do accordingly and treat the appeal as a petition under Article 199 of the Constitution. There is no dearth of law on the point that this Court has the ample power to convert an appeal into petition and vice versa. The principle is so well-established that we need not to cite any decision in this behalf. We would like to clarify that the petition does not suffer from laches for the reason that the petitioner has been diligently pursuing the matter and there is no negligence or slackness on the part of the petitioner.