' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---This Revision Application is directed against the judgment and decree, dated 22-7-1997 passed by the learned 1st Additional District Judge, Mirpurkhas in Civil Appeal No.15 of 1995, upholding the judgment and decree of the 'Ind Senior Civil Judge, Mirpurkhas in F.C. Suit No.140 of 1982.
2. The relevant facts are that respondent No.1 filed a suit for preemption and permanent injunction being Suit No.140 of 1982. The suit was decreed by the IInd Senior Civil Judge Mirpurkhas on 21-5- 1991. The applicants feeling aggrieved preferred Ist Appeal before the High Court of Sindh Circuit Bench at Hyderabad. On 8-2-1993 a learned Single Judge of this Court returned the appeal to the applicants for presentation before the District Judge, Mirpurkhas. The said order reads as follows:-- "8-2-1993.
' Mr. Ch: Naseer Ahmed Advocate.
' Mr. Anwar Zaheer Jamali, Advocate.
' The respondent No.1 has moved this application in which it is pointed out that in view of the Ordinance VII of 1991, the pecuniary jurisdiction of the District Court for the purpose of appeal has been enhanced to Rs.2,50,000 and such amendments has been made in section 18 of the Ordinance II of 1962. Mr. Choudhry Naseer Ahmed, learned counsel for the appellants concedes to this legal position and requests that the appeal be returned to him for presentation before the District Court Mirpurkhas. The appeal along with its Annexures may be returned to the learned counsel for the appellants for presentation before the Court having jurisdiction."
3. The appeal was presented in the District Court Mirpurkhas on 13-4-1993, along with an application under section 14 of Limitation Act. It was alleged that the order for return of the appeal was passed on 8-2-1993, the memo. Of appeal was handed over to the appellants on 12-4-1993, which was presented in the Court of learned District Judge, Mirpurkhas on 13-4-1993.
4. The appeal was transferred to the learned Ist Additional District Judge, Mirpurkhas. The learned Appellate Court after hearing the learned Advocates observed that the order was passed by the High Court on 8-2-1993 to the knowledge of the appellants as their Advocate had consented for the order on the point of jurisdiction. From 8-2-1993 till 12-4-1993 the appeal was not taken back by the appellants for which no reason was assigned in the affidavit. The learned Ist Additional District Judge, Mirpurkhas further observed that the certified true copy of the order, dated 8-2-1993 was obtained on 12-4-1993 and no reason was assigned for the delay. The learned Ist Appellate Court observed that there was delay of two months which was not explained and thus, the appeal was barred by time. The appeal was dismissed accordingly.
5. Being aggrieved with the dismissal of appeal as above, the applicants have preferred this revision application, assailing the finding given by the learned Ist Appellate Court.
6. Mr. Faiz Muhammad G. Soomro, learned counsel for the applicant has submitted that the impugned judgment and decree passed by the learned Ist Appellate Court is illegal and not sustainable in law, which is liable to be set aside.
7. On the other hand, Mr. Hassan Mahmood Baig, learned counsel for the respondent has fully supported the impugned judgment contending that the applicants were negligent and have given no explanation for delay in collecting the memo. Of appeal and presenting the same before the District Court, Mirpurkhas within reasonable time and consequently the impugned judgment is not open to any exception.
8. The learned Advocates for the parties were asked to address on the point as to what would be the reasonable time in such circumstances.
9. Mr. Faiz Muhammad Soomro, learned counsel for the applicants has placed reliance on the judgment of Honourable Supreme Court in the case of Sherin v. Fazal Muhammad 1995 SCM R 584.
In this case appeal was preferred in the Court of District Judge, which was admitted to regular hearing on 21-3-1984 but the memorandum of appeal was returned to appellants on 1-12-1985 for presenting in the High Court, as the appeal was found beyond the pecuniary jurisdiction of District Judge. It was re-filed by them in High Court on 15-12-1985 and was admitted to regular hearing on 14-1-1986. The delay in filing the appeal was condoned subject to all just exceptions. However, when the appeal was ultimately heard, the respondents objection was upheld and the High Court took the view that there was no good ground to condone the delay and the appeal was dismissed as barred by time.
10. Leave to appeal was granted by the Honourable Supreme Court to consider the following question:-- "What should be the standard of care and diligence required of appellants when preferring their appeals and whether any duty is cast on the Court officials entertaining the appeals to record objections as regards defect or jurisdiction etc., and, if so, within what period of time?"
11. A plea was taken that the delay may be condoned on the ground of mistaken advice of the counsel. It was further pleaded that the appellants were not negligent. The respondents submitted that the mistaken advice of counsel cannot furnish a good ground for condonation of delay.
12. The Honourable Supreme Court observed that diligence is a state of human conduct and it was difficult to set up a precise yardstick. It would differ from case to case and person to person. It was further observed that it will depend on degree of effort in a given situation which a reasonable person would do. It was further observed that the word reasonable is not susceptible, of any precise definition.
13. Dilating on the applicability of section 14 of the Limitation Act and on the expression "due diligence" for enlargement of time prescribed under section 14 of the Limitation Act, it was held that this provision was applicable to the suits and applications only and not to the appeals. It was further held that on the other hand section 5 Limitation Act is applicable to the appeals but it does not apply to suits. It was 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. It was further observed that, often while examining the question of delay in filing the appeal, the Courts have been invoking the principles underlying section 14 of the Limitation Act. It was pointed out that the expression "due diligence" and "good faith" appearing in section 14 do not figure in section 5. The condition prescribed in the latter section for its applicability is "sufficient cause", but what is sufficient cause is not capable of connotation with exactitude and would differ from case to case. It was further observed that filing of appeal in a wrong Court on account of mistaken advice tendered by the counsel canvassed by 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 appeal in the wrong forum may constitute a "sufficient cause" within the meaning of section 5 for condonation of the delay.
14. It was further held by the Honourable Supreme Court that the appellants were illiterate and the filing of appeal in wrong forum was entirely attributable to the carelessness of the appellant's counsel. The Honourable Supreme Court further observed that the counsel for the appellants was a Senior Advocate, but unfortunately there has been a tendency of some decline in the proficiency of the members of the this noble profession practising at the Bar. It was observed that some restraint needs to be exhibited by the Court in imposing too large a burden on a litigant, for the lapses of his counsel. The Honourable Supreme Court observed that the absence of. Timely action on the part of District Judge to take notice of the filing of appeal in wrong forum was the major cause of delay in filing the appeal in High Court, which furnishes a sufficient cause for condonation of delay under section 5 of the Limitation Act. I would like to point out here that in the opening part of the judgment the date of return of memorandum of appeal is shown as 1-12-1985 and the re-filing in the High Court as 15-1-1985, while in the latter part the date of return of memorandum of appeal is shown the same, i.e. 1-12-1985 but the filing of appeal in the High Court is shown as 5-12-1985. Thus, it is not possible to ascertain whether the memorandum of appeal was re-filed after four days or fifteen days of the return. Be that as it may, the Honourable Supreme Court ultimately observed that "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".
15. Mr. Faiz Muhammad Soomro has next placed reliance on a Single Bench judgment of this Court in the case of Mst. Qudsia Begum v. Hazoor Ahmed Khan 1983 MLD 1073. In this case the plaint was returned for representation. There was a delay of six months from the orders for return of the plaint and no explanation was on record for delay in representation. It was observed that a party to whom the plaint was returned is supposed to represent the plaint in the proper Court within reasonable time and if there has been any lapse on his part he cannot invoke section 14 of the Limitation Act without making out a case. The matter was remanded to the trial Court to give opportunity to the appellants for explaining delay in representation of the plaint in the proper Court.
16. On the other hand Mr. Hassan Mahmood Baig, learned counsel for the respondent No.1 in support of his contention that the unexplained delay of two months in taking back the memorandum of appeal from the office of High Court and presenting the same in the District Court Mirpurkhas smacks of negligence and is unreasonable, which cannot be condoned, has placed reliance on the judgment in the case of Ahmed Jee v. Government of Azad J&K PLD 1971 Azad J&K
30. In this case the appeal was filed in the Court of District Judge, which was ordered to be returned on 9-4-1969 for presentation in the High Court. The appellant filed the memorandum of appeal in High Court on 8-5-1969 along with an application showing that the memorandum of appeal had been received back from the Court of District Judge one day earlier and was being presented in High Court. An objection was raised to the effect that the appeal was barred by time, which was liable to be dismissed. The counsel for appellant claimed benefit of section 14 of the Limitation Act.
Reference was made to several judgments and the judgment in the case of Captain Muhammad Afzal v. Hakim Muhammad Ashraf PLD 1959 Azad J&K 55 was relied upon. In the said case the appeal lay to the High Court, which was wrongly filed in the Court of District Judge. The memorandum of appeal was returned back to appellant on 7-11-1957, which was filed in the High Court on 12-11-1957 for which no satisfactory explanation was given, the delay was not condoned and the appeal was held to be barred by time. It was observed by a Division Bench that the memorandum of appeal was ordered to be returned back to the appellant for presentation before the proper Court on 9-4-1969. It was held that the appellant was required to take the memorandum of appeal back immediately and file the same before the High Court immediately. It was further held that the appellant cannot be allowed to take shelter behind his own carelessness and negligence in not taking back the memorandum of appeal till 7-5-1969, nor can he be allowed to turn around and say that he received the memorandum on 7-5-1969, therefore, he was bona fide litigating in a wrong Court till 7-5-1969. It was pleaded that there were some practical difficulties in taking back the memorandum from the Court of District Judge and that the clerk was sometimes not present and sometimes he forgot to take back the memorandum. The explanation was not accepted and it was held that the learned counsel wants to put a premium on his own and his client's negligence and carelessness in not taking back the memorandum of appeal. The appeal was held to be barred by time and was dismissed.
17. Mr. Hassan Mahmood Baig has next placed reliance on a Single Bench judgment of the Lahore High Court in the case of Tabbaq Restaurant, Rawalpindi v. Tabbaq Restaurant, Lahore 1986 MLD 2673(2). In this case the appeals were filed before the High Court of Sindh at Karachi. On 24-12-1985 the appeals were directed to be returned to the appellants holding that the High Court of Sindh had no jurisdiction and the appeals be presented before the proper Court. The appellants received the memorandum of appeals on 22-1-1986 and filed them before the Rawalpindi Bench of Lahore High Court on 23-1-1986. An objection was taken to the effect that the appeals were barred by time.
It was contended on behalf of appellants that the time consumed in pursuing the appeals at Karachi should be excluded in computing the period of limitation. It was further contended that memorandum of appeal was received on 22-1-1986 and was presented in Lahore High Court at Rawalpindi Bench on 23-1-1986 without loss of any time. It was held that section 14 of Limitation Act was not applicable to the appeals and applied to suits only. While considering the period which elapsed in between the order for return of memorandum of appeal and taking back the same, it was observed that the memorandum of appeal was directed to be returned on 24-12-1985 and was received back by the appellant on 22-1-1986. There was no explanation for this delay. It was held that delay between 24-12-1985 and 22-1-1986 clearly showed lack of diligence on the part of the appellant and, therefore, the appeals were barred by limitation.
18. The third judgment relied upon by Mr. Hassain Mahmood Baig is in the case of Mst. Qudisa Begum v. Hazoor Ahmed Khan. Mr. Faiz Muhammad Soomro has also placed reliance on this judgment and the same has already been discussed in the earlier part of this judgment.
19. I have carefully considered the judgments on which the learned Advocates for the parties have placed reliance. At the very outset I would like to observe that the case of Mst. Qudisa Begum v.
Hazoor Ahmed Khan (supra) on which both the learned Advocates have placed reliance, is not relevant to the facts and circumstances of the present case for the reason that it pertained to the return of plaint for presentation before the proper Court and, therefore, the provisions contained in section 14 of the Limitation Act were attracted. In the present case the memorandum of appeal was returned for presentation before the proper Court and the Honourable Supreme Court has held in the case of Sherin v. Fazal Muhammad (supra) that section 14 of the Limitation Act is not applicable to appeals and is applicable to the suits only.
20. In the present case the applicants while presenting the memorandum of appeal before District Judge, Mirpurkhas submitted an application under section 14 of the Limitation Act, praying for condonation of delay. Section 14 of the Limitation Act is not applicable to the appellate proceedings and even if the said application is treated as an application under section 5 Limitation Act and a very lenient view is taken to the effect that entire period consumed in pursuing the appeal before the wrong forum is condoned, even then the question remains whether a period of about two months consumed by applicants in taking back the memorandum of appeal can be condoned for which no explanation has been offered. For the purpose of condoning delay under section 5 Limitation Act the sufficient cause is to be shown and in the present case no cause has been shown at all. As already narrated while referring judgment of the Honourable Supreme Court in the case of Sherin v. Fazal Muhammad, the Honourable Supreme Court observed that after receiving the memorandum of appeal from District Court the consumption of sometime in presenting the same before the proper Court was inconsequential. There is some discrepancy in narration of the fact, which has occurred due to typing mistake in reporting the case. At one place it is observed that memorandum of appeal was returned on 1-12-1985 and was presented in High Court on 5-12-1985 and at the other placed the date of filing of appeal in High Court is shown as 15- 12-1985. Even if the benefit of doubt is extended to the applicants, the Honourable Supreme Court condoned the delay of 14 days in re-filing the memorandum of appeal. In the case of Ahmed Jee v.
Government of Azad J&K, time spent in taking back the memorandum of appeal between 9-4-1969 and 7-5-1969 was not condoned. Likewise, the delay of one month in taking back the memorandum of appeal and filing in the competent Court was not condoned in the case of Tabbaq Restaurant, Rawalpindi v. Tabbaq Restaurant, Lahore (supra.)
21. The law laid down by the Honourable Supreme Court in the case of Sherin v. Fazal Muhammad is to the effect that the delay of few days in presenting the memorandum of appeal before the competent Court was inconsequential and was condoned. The principle of law enunciated by the Honourable Supreme Court is that the expression reasonable time and sufficient cause are not capable of connotation with exactitude and are to be considered in the peculiar facts and circumstances of each case. The time limit on the touchstone of expression "reasonable" may differ from case to case and in the light of circumstances and explanation coming forth in each case. In the present case I find that there is no explanation whatsoever for delay of over two months in taking back the memorandum of appeal from the office of High Court and presenting the same in the District Court Mirpurkhas. In these circumstances I am of the opinion that the learned Additional District Judge has rightly refused to condone the delay and has held that the appeal was barred by time. The impugned finding of the Additional District Judge is not open to any exception, which is hereby upheld. The revision application is without substance, which stands dismissed accordingly.