1. ' Respondent No. 1 has filed as application under section 3 of the Limitation Act read with section 6 of Court Fees Act and section 151, C. P. C. Praying that the appeal being barred by ' time may be dismissed with costs. The appellant has filed a counter-affidavit to which a rejoinder was filed by respondent No. 1. For purposes of this application such facts as are necessary for its disposal will be stated here. On 22-9-1976 the Senior Civil Judge, 1st Class, Karachi passed a decree in favour of the respondent No. 1 for Rs, 38,137-56 with costs and interest. The appellant applied for certified copy of the judgment and decree on 1-10-1976. The decree was signed on 8-11-1976, made ready on 20th November 1976 and delivered on 3-11-1976. The appellant filed this appeal in the Court of the District Judge, 1 Karachi on 23-12-1976 affixing court-fee stamp of Rs, 5 together with an application under section 149, C. P. C. For granting time to pay proper court-fee. On 23rd December 1976 the District Judge passed an order for payment of court-fee within a week. The Court was closed due to winter vacation and reopened on 1-1-1977 but deficit court-fee was affixed on 6th January, 1977, without seeking any extension of time from the Court of the District Judge. The appeal was transferred to 1st Additional District Judge who an. Lifted it on 22-1-1977. The parties took steps in the matter and ultimately by an order dated 19th July, 1978 the Court held that it had no jurisdiction all therefore the appeal was returned for presentation in the proper Court. The appellant filed this appeal in this Court on 26-7-1978. He also made an application under sections 5 and 14 of the Limitation Act for condonation delay in filing the appeal. By an order dated 19th August, 1978 the appeal was admitted to regular hearing and the application under sections 5 and 14 of Limitation Act registered as C. M. A. 1373/78 was granted subject to all just exceptions at the instance of respondents and notice was ordered to be issued. It is an admitted position that the District Judge, did not have jurisdiction to entertain the appeal in respect of decree for a sum exceeding Rs, 25,000 Mr. Manzoor Ali Khan the learned counsel for the respondent No. 1 relied upon PLD 1977 SC 102 in which in similar circumstances the Supreme Court refused to grant extension of time and did not condone the delay in filing the appeal.
2. ' Mr. Khalilur Rahman the learned counsel for the appellant contended that this Supreme Court case is distinguishable on 3 grounds :-
(i) That it relates to the civil Courts of Punjab where the High Court does not have any civil original jurisdiction as in Karachi ;
(ii) That in view of an amendment in the year 1970 whereby the Courts of Civil Judges were vested with jurisdiction to entertain suits up to Rs, 50,000, there was a confusion in the mind of the litigants as well as the Advocates and therefore the appeal was filed in a wrong Court under the advice of a senior counsel. In the circumstances the learned counsel contends that there was sufficient cause for condoning the delay, and
(iii) In the Supreme Court case after the memo. Of appeal was returned a fresh memo of appeal was prepared and filed in the proper Court. In the present case, the same memo. Of appeal has been presented in the High Court.
3. ' I am not inclined to agree with the contentions of the learned counsel for the appellants. In the first place the fact that Civil Original jurisdiction is being exercised by the High Court of Sind at Karachi, cannot be said to have created any confusion in the mind of the litigants or the Advocates.
4. Previously this jurisdiction was being exercised by the Chief Court of Sind and thereafter on the establishment of the High Court of West Pakistan the Karachi Bench exercised its civil original jurisdiction in suits wherein subject-matter exceeded Rs, 25,000. The only amendment referred was made by civil Courts (Sind Amendment) Ordinance, 1970 (Ordinance XIII of 1970) which provides that the Court of District Judge, Karachi shall not have jurisdiction in original Civil suits and proceedings wherein subject-matter exceeds Rs, 50,000. This amendment did not take away the jurisdiction of the High Court to entertain suits of the valuation between Rs, 25,000 and Rs, 50,000.
5. The appellate jurisdiction of the District Judge was neither extended nor curtailed. In view of the fact that no amendments were made in the appellate jurisdiction of the District Judge, merely because certain amendments were introduced in the year 1970 with regard to Civil suits cannot be said to have created confusion leading to a mistake of filing the appeal before the District Judge.
6. Moreover if at all there was any confusion it would have been in the year 1970-71 and could not have remained for more than five years. This appeal was filed before the District Judge in the year 1976 and more than 5 years time was sufficient to remove any confusion that may have existed at the time of the promulgation of Civil Courts (Sind Amendment) Ordinance, 1970.
7. ' The learned counsel for the appellant referred to AIR 1937 P C 276 and AIR 1963 Guj. 119 to support the contention that if the appeal has been filed under a mistaken advice of a counsel it was a sufficient cause for the condonation of delay. There can be no dispute with this general proposition of law but each case has to be decided on its own merits. It is to be seen whether the facts of the present case would attract the provision of section 5 of the Limitation Act and the principles enunciated in section 14 of the Limitation Act as it is not applicable to appeal. In PLD 1977 SC 102, Dorab Patel, J. Had taken note of the aforestated Privy Council case and observed in clear terms as follows :- "In any event, the conduct of other parties cannot help the petitioner to make out sufficient cause under section 5 of the Limitation Act. It is true that this section does not define sufficient cause but the meaning of this expression is too well known to need recapitulation, and we would only refer here to the observations of Kaikaus, J. On this question in Ata Ullah v. Custodian, Evacuee Property: 'Under section 5 there has to be a finding of sufficient cause. In pre- Partition India sufficient cause had been defined as circumstances beyond the control of the party and I do not know of any case wherein this definition of sufficient cause had been rejected. We reaffirm these observations and we may explain here that the burden is on the appellant to prove that his delay in filing his appeal was on account of circumstances beyond his control, because, as observed by Sir George Rankin in Kunwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali and others in applying section 5 (of the Limitation Act) the analogy of section 14 (which applies only to suits) is an argument of considerable weight'. Section 14 permits the exclusion of time only for proceedings 'prosecuted in good faith', therefore in order to make out sufficient cause under section 5 an appellant must prove that he had acted in good faith in presenting his appeal in the wrong Court. Good faith has been defined in clause (7) of section 2 of the Limitation Act as "good faith nothing shall be deemed to be done in good faith which is not done with due care and attention'. Now if an appellant proves that he filed his appeal in the wrong Court despite due care and attention it means that the presentation of the appeal in the wrong Court was on account of circumstances beyond his control. No doubt, what such circumstances are must depend on the facts and circumstances of each case, and in Kunwar Rajendra Bahadur Singh's case, Sir George Rankin set aside the finding of the Chief Court that the appellant's Advocate had been very negligent in filing the appeal in the wrong Can't because the facts relevant to the question of the Court in which the appeal was to be filed were very complicated. Similarly, an appellant can bring his case under section 5 if he can show that there is some ambiguity in the law governing the forum in which the appeal is to be filed.
8. Or, to take another example, an appellant can rely on section 5, it' he can show that he was misguided by the practice of the Court or by an erroneous judgment of the Court. But, in the instant case, the provisions of section 18 of the West Pakistan Civil Courts Ordinance are plain beyond any doubt and as there is also no complication whatsoever about the facts relevant to the question of the proper forum for filing the appeal, it is clear that the presentation of the appeal in the District Court was an act of gross negligence."
9. ' The above observation fully applies to the present case and the contentions of the learned counsel for the appellant cannot be accepted.
10. The contention of the learned counsel that because the appellant had presented the same memo of appeal and did not file a fresh memo. His case should be distinguished from the Supreme Court case and the delay may be condoned can hardly be a valid reason for deviating from the aforestated 'dictum laid down by the Supreme Court.
11. ' In the result the application filed by respondent No. 1 is allowed and in consequence the appeal is dismissed as barred by time. There will be no order as to costs.