1. MUHAMMAD SHARIF, C. J.--This is an appeal against the judgment and decree of the Sub-Judge, Muzaffarabad, dated 31-12-68.
2. The jurisdictional value in the suit was Rs, 4,000. The appellant filed his appeal in the Court of the District Judge, Muzaffarabad, on 22-1-1969 which was ordered to be returned on 9-4-69 for presentation before the proper Court. The appellant filed the same memorandum in the High Court on 8-5-69 alongwith an application showing that the memorandum of appeal had been received back from the Court of the District Judge, Muzaffarabad, on yesterday and that since the appeal has been held to be cognizable by the High Court, he is presenting the appeal in the High Court.
3. The learned Advocate-General has taken a preliminary objection that the appeal is beyond time and that no exemption having been claimed by the appellant the appeal should be dismissed as time-barred.
4. Learned counsel for the appellant claims the benefit of section 14 showing that he had been bona fide litigating in a wrong Court and that the time spent in the Court of the District Judge should be excluded and his appeal should be treated as within time. He has cited PLD 1960 Lah. 801 and PLD 1963 Azad J & K 38 wherein the view expressed in PLD 1960 Lah. 801 has been followed. The stand of the learned Advocate-General is that the Limitation Act prescribed a period of 90 days for an appeal to the High Court and that this period of 90 days should commence from 31-12-68 the date of the decree of the learned Sub-Judge. The appeal should, therefore, be treated as time-barred.
5. He also relies on PLD 1959 Azad J & K 55 which was distinguished in PLD 1963 Azad J & K 38.
6. It was laid down in PLD 1959 Azad J & K 55 that "there should not be any misunderstanding about the forum of appeal in a suit valued at more than Rs, 2,500 and that the appellant could not be said to have been prosecuting his appeal with due diligence in the Court of the District Judge believing bona fide that the appeal lay there." This D. B. judgment was distinguished in the later D. B. judgment PLD 1963 Azad J & K 38 on the ground that the names of Hindus appeared in the title of the suit and as everybody knew, here in Azad Kashmir, the Sub-Judges have been empowered to try cases in which the interests of evacuee are involved as Deputy Custodian; and that appeals from their orders lay to the Custodian. The learned Judges deciding PLD 1963 Azad J & K 38 distinguished PLD 1959 Azad J & K 55 on the ground that the names of evacuees appearing in the title of the suit has misled the counsel since the trial Court was vested with powers both as Sub- Judge and as Deputy Custodian.
7. The facts of PLD 1959 Azad J & K 55 were that the appeal lay to the High Court but was wrongly filed in the Court of the District Judge as the case in the appeal before us; and that the memorandum of appeal was returned back to the appellant on 7-10-57 by the District Judge to be presented to the proper Court the appeal was not filed in the High Court soon after but was filed as late as 12-11-1957 for which no satisfactory explanation was given. This is a case on all fours with the case now before us. The learned District Judge endorsed on the memorandum of appeal the following order dated 9-4-69 : "Appeal returned under Order VII, rule 10, C. P. C. as this Court has no pecuniary jurisdiction to entertain this appeal. The appellant shall pay Rs, 50 as costs to the respondent."
8. Even the learned counsel for the appellant frankly states at the Bar that on his brief it is put down as against the date 8-4-69, which was the date fixed fur hearing arguments by the learned District Judge, that the memorandum of appeal has been ordered to be returned. The memorandum of appeal had been ordered to be returned back to the appellant for presentation before the proper Court on 9-4-69. It was for the appellant to take the memorandum back immediately and file the same before the High Court immediately. He cannot be allowed to take shelter behind his own carelessness and neglect in not taking back the memorandum of appeal till 7-5-69; nor can he be allowed to turn around and say that he received the memorandum on 7-5-69, therefore, he was bona fide litigating in a wrong Court till 7-5-69. In Azad Kashmir in suits of the value of over Rs, 2,500 appeals lie to the High Court, the institution of the appeal before the District Judge cannot be said to be a bona fide mistake as was laid down in PLD 1959 Azad J & K 55. Besides this the appellant has to account for the delay of each day from the time the memorandum of appeal is ordered to be returned. Learned counsel now tries to show that there were some practical difficulties in taking back the memorandum from the Court of the District Judge; and that the Clerk was sometime not present and sometimes he forgot to take back the memorandum. 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 from the Court of the District Judge. The memorandum of appeal had been ordered to be returned to the appellant on 8-4-69 as has been noted by the learned counsel on his brief and the learned District Judge had actually endorsed on the memorandum of appeal that the appeal is returned on 9-4-69. After this all that the appellant or his counsel had to do was to give a receipt in the office of the District Judge that he had received back the memorandum and take it away and file it before the High Court but he was negligent and the time spent by him in taking back the memorandum of appeal between the 9th of April 1969, and the 7th of May 1969, cannot be said to be time spent bona fide in a wrong Court. The appeal is, therefore, held to be time-barred and dismissed with 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.