' MEHMOOD MAQBOOL BAJWA, J.--- Assails the vires of order dated 28-9-2009 recorded by the learned Civil Judge, Chiniot whereby the application under Order-XXXIX, Rules 1 and 2 read with section 151 of The Code of Civil Procedure, 1908 in the suit for specific performance was dismissed.
2. Briefly, relevant facts resulting in preference of present appeal are that present appellant instituted suit for specific performance of executory contract of sale dated 28th of April, 2008 asserting that present respondent agreed to alienate his holding in his favour for a consideration of Rs, 60, 00,000/- (Rupees sixty lac) and while receiving Rupees five million as earnest money undertook to get the sale-deed executed and registered on 28th of April, 2009. The alleged failure of the respondent to perform his part of contract resulted in institution of suit for specific performance at the instance of the present appellant.
3. Along with suit, an application under Order XXXIX, Rules 1 and 2 of The Code of Civil Procedure, 1908 was made praying that respondent be restrained from alienating property subject-matter of the suit and interfering in his possessory rights, which application after calling written reply was dismissed by the learned trial court.
4. Being aggrieved, the present appellant preferred an appeal against the said order before the District Court on 9-10-2009 entrusted to a learned Additional District Judge, Chiniot which, however, was dismissed as not pressed vide order dated 7-11-2009 in view of the statement of the learned counsel for the appellant that since the valuation of the suit for the purpose of jurisdiction exceeds Rs,6 million, therefore, the appeal was required to be preferred before this Court,
5. Heard adversaries.
6. It has been pointed out that application (C.M.No,2 of 2010) under section 5 of The Limitation Act, 1908 (IX of 1908) has also been made by the appellant for condonation of delay as the appeal before this Court is barred by time. Arguments of the adversaries have been heard on the civil miscellaneous. The learned counsel for the appellant/applicant maintained that though the appellant was obliged to prefer an appeal against the order impugned before this Court but inadvertently appeal was preferred before the District Court. However, in the opinion of learned counsel for the appellant, filing of appeal before the District Court was neither intentional nor negligent and as such the time consumed in pursuing the appeal before the learned Additional District Judge is to be condoned. Maintained, that the appellant cannot be held responsible for the delay and contents of the civil miscellaneous are supported by an affidavit sworn to by the appellant. Seeking help from the dictum laid down in KARACHI ELECTRIC SUPPLY CORPORATION LTD. v. LAWARI and 4 others (PLD 2000 SC 94), learnedcounsel for the appellant maintained that since the wrong forum was chosen by the learned counsel for the appellant which was not objected to, therefore, the time is to be condoned.
' Conversely, learned counsel for the respondent while making reference to para-2 of the application submitted that according to the contents of said para. The appellant-applicant handed over the case to his Advocate to prefer an appeal before proper forum but his Advocate filed the appeal before the District Court instead of preferring the same before this Court.
Contended that keeping in view the contents of the petition, particularly para-2, it cannot be said by any stretch of imagination that the appellant, prosecuted the appeal in "good faith" and with "due diligence" as envisaged by section 14 of The Limitation Act, 1908. Reference was made to FURQAN HABIB and others v. GOVERNMENT OF PAKISTAN and others (2006 SCM R 460), Mst. KHADIJA BEGUM AND 2 others v. Mst. YASMEEN and 4 others (PLD 2001 Supreme Court 355) and MUHAMMAD AZHAR KHAN and another v. ASSISTANT COMMISSIONER/COLLECTOR, TOBA TEK SINGH and others (2006 SCM R 778).
There is little cavil with the well-expounded proposition of law that keeping in view text of section 14 of The Limitation Act, 1908 the said provision of law is not applicable to the appeals but nevertheless it is now well settled law that provisions of section 14 read with section 5 of The Limitation Act, 1908 (hereinafter called as Act) can come in aid of a person if the conditions mentioned in section 14 of the Act also exist. According to section 14 of the Act time consumed in prosecuting in civil proceedings with "due diligence" and in "good faith" in a court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it, can be condoned. The expression "good faith" has been defined in section 2(7) of the Act, which reads as under:--- good faith: "nothing shall be deemed to be done in good faith which is not done with due care and attention"
' However, expression "due diligence" has not been defined by the Act.
' In order to appreciate the respective contentions of the adversaries and in order to know the meaning of the expression "due diligence" reference may be made to the rule of law expounded in KARACHI ELECTRIC SUPPLY CORPORATION LTD. v. LAWARI and 4 others (PLD 2000 SC 94), relied upon by the learned counsel for the appellant in which while scanning the law with reference to section 5 and section 14 of The Limitation Act, 1908 it has been held at page 101 as below:--- "(5) Diligence is a state of human conduct. What should be the standard for assessing the behaviour of an appellant to style him as diligent. Because of fluidity of the notion of diligence, it is difficult to set up a precise yardstick. Whether or not litigant has acted diligently and with care, would differ from case to case. Speaking broadly, a person may be said to have acted diligently, when he has informed, himself of all relevant factors taken all obvious steps and precautions, characterized by a degree of effort, as in a given situation, a reasonable person would do. But, the epithet of reasonable, opens wide the measure of application of this yardstick, on the factual plane, for the word 'reasonable' is not susceptible of any precise definition. Etymologically, it signifies according to reason, which expression itself is open to difference of opinion. Whether or not a person has acted diligently in ultimate analysis, would depend on the circumstances of each case and cannot be determined on the foundation of any judicial syllogism.
(6) The criterion of due diligence for enlargement of time is prescribed by section 14 of the Limitation Act, which upon its terms applied 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 question of condonation of delay, therefore, has been 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 appeal, the Courts have been invoking the principles underlying section 14 of the Act.
The High Court has declined to condone the delay entirely on the touchstone of section 14. It is, however, to be remembered that expressions '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. We may observe that filing of appeal in a wrong Court on account of mistaken advice 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."
7. Keeping in view the above yardstick, now I will examine the contention raised at the instance of adversaries for which purpose the contents of application under section 5 of the Act are to be examined. It would be more appropriate to reproduce para-2 of the application order to understand and appreciate the defence taken at the instance of the appellant: "That the applicant handed over case to the learned counsel to file appeal at proper forum but the learned counsel for the appellant filed appeal in the court of learned Additional Sessions Judge Chiniot instead of filing appeal at Lahore, the time exhausted between the disposal of the appeal at Chiniot is not intentional but due to the filing of appeal at wrong forum."
' According to contents of the application, appellant-applicant handed over the brief to his Advocate to prefer an appeal at proper forum but his counsel filed appeal in the court of Additional District Judge, Chiniot instead of filing appeal before this Court at Lahore. First of all name of the Advocate who preferred appeal in District Court is not known. It, has also not been disclosed under what circumstances the counsel for the appellant representing him before the District Court preferred an appeal in the District Court despite the clear provisions of section 18 of The Civil Courts Ordinance, 1962 (Ordinance No,2 of 1962), according to which, appeal from a decree or order of a Civil Judge shall lie to the High Court if the value of the original suit in which the decree or order was made exceeds 25 hundred thousand rupees. Since provision of law suggesting the forum of appeal keeping in view valuation of the suit for the purpose of jurisdiction is unambiguous and clear, therefore, it cannot be said by any stretch of imagination that the counsel for the appellant while preferring the appeal before the court of District Judge acted with due care and attention.
Had the counsel for the appellant exercised due care and attention by consulting the relevant provisions of law, forum of appeal would have been known to him which even otherwise must have been in his knowledge being a Legal Expert. Since compelling circumstances have not been highlighted in the application, therefore, it is not possible to make comment under which circumstances appeal was preferred at the instance of the appellant before the District Court.
However, it cannot be disputed that 'good faith' was lacking while preferring an appeal before the court of learned District Judge. Similarly, there is no affidavit at all in order to suggest "due diligence". No doubt it is difficult to set up a definite yardstick but nevertheless keeping in view the yardstick enunciated in the Report referred to, a person may be said to have acted diligently when he has informed of all relevant factors taken all obvious steps and precautions, characterized by a degree of effort as in a given situation a reasonable person would do. While examining the reasons in para-2 of the application with reference to "good faith" and "due diligence" it can be said that in view of the unambiguous provision of section 18 of The Civil Courts Ordinance 1962, the counsel for the appellant while preferring the appeal before the District Court did not act in good faith. His act and conduct does not suggest anything but "negligence" taking out the case of appellant from the purview of both the provision under reference.
8. Though the contents of the application are supported by an affidavit sworn at the instance of the appellant but nevertheless no affidavit has been placed on record at the instance of Advocate who preferred an appeal against the order impugned before the District Court. In view of above state of facts and law one would hardly agree with the contention of learned counsel for the appellant that while preferring the appeal before the District Court the counsel for the appellant acted in "good faith" or "due diligence" was exercised and as such same cannot be construed "sufficient cause" within the meaning of section 5 of The Limitation Act, 1908. Seeking help from the dictum under reference, the learned counsel for the appellant maintained that the honourable Supreme Court of Pakistan in the circumstances held that filing of appeal in a wrong forum was sufficient to condone the time within the meaning of section 5 read with section 14 of The Limitation Act, 1908. I have gone through para-5 of the judgment of the Report, perusal of which clearly demonstrates distinguishable facts which are not helpful tb the appellant. According to the facts narrated in said para, first appeal was preferred before the District Judge by the appellant which was entertained, decided on merits and the matter was remanded to the trial court and no objection was raised either. By the appellate court nor its office regarding wrong forum. The second appeal was again filed in the court of District Judge and again neither the office nor the learned District Judge raised any objection regarding the wrong forum and as such with this background it was held that the act and conduct of the District Judge and its office in entertaining the appeals on both occasions and not noting/raising the question of maintainability of appeal and respondent's conduct on both occasions are also the factors which are to be kept in view suggesting sufficient cause within the meaning of section 5 of The Limitation Act 1908.
It is to be noted that though appeal before the learned District Judge was preferred on 9-10-2009 but the appellant !Or the reasons best known to him did not append the first order and just annexed the certified copy of order dated 7-11-2009, according to which, the counsel for the appellant himself informed the court that keeping in view the valuation of the suit for the purpose of jurisdiction the District Court lacks jurisdiction to entertain and decide the appeal and as such wished to withdraw the appeal, which accordingly was disposed of. Undeniably, the facts in the Report under reliance and in the present case are entirely different. It is not the case of present appellant that appeal was admitted for regular hearing or notice was issued to the adversary in which eventuality the argument canyassed at the instance of appellant could have been considered as a legitimate ground for condonation of delay.
' I have gone through the rule of law relied upon by learned counsel for the Respondent. It has been held in Mst. ANWAR BIBI and others v. ABDUL HAMEED (2002 SCM R 144), that object behind section 14 of The Limitation Act, 1908 is to provide protection against bar of limitation of a party bona fide pursuing his case and seeking adjudication on merits. In view of the discussion 'made, it cannot be said by any stretch of imagination that the present appellant acted bonafidely while preferring the appeal before the learned District Judge. In FURQAN HABIB and others v. GOVERNMENT OF PAKISTAN and others (2006 SCM R 460) it has been held at page 462 that filing of appeal in a wrong court on account of mistaken advice of the counsel would not attract section 5 of The Limitation Act 1908 for condonation of delay.
Pursuant to above discussion, the appellant- applicant failed to point out any "sufficient cause" within the meaning of section 5 of The Limitation Act, 1908. Likewise also remained unsuccessful to persuade this Court that the act of preference of appeal before the District Court was due to "good faith" and with "due diligence" as envisaged by section 14 of The Act. The application as such is liable to be dismissed.
' Learned counsel for the respondent also questioned the maintainability of the appeal in view of Order-XLIII, Rule 3 of The Code of Civil Procedure contending that prior to preferring an appeal before this Court, the appellant was obliged to issue notice within the meaning of said provision of law being mandatory in nature which has not been complied with. The argument canvassed at the instance of the Respondent though appears to be attractive in form but nevertheless cannot advance his plea in substance keeping in view the attending circumstances. Though it cannot be questioned that the appellant was required to serve the respondent with notice as required under Order-XLIII Rule 3 of The Code of Civil Procedure, 1908 but nevertheless the intention of the legislature is to be kept in view while enacting the said provision of law. The intention, wisdom and object of enacting the said provision was discussed by honourable Supreme Court of Pakistan in MRS. DINO MANEKJI CHINOY AND 8 OTHERS v. MUHAMMAD MATIN (PLD 1983 Supreme Court 693 at page 700) as follows:--- "16. The purpose of this provision obviously is to avoid the delay that is occasioned in issuance of notices to and having service effected on the respondent in a case where the main suit is still pending adjudication and only the legality or correctness of some interlocutory order is under question. Hence intimation to the respondent of the fact that an appeal is being preferred and on the grounds on which this is being done, to avoid taking him by any surprise, has been prescribed as a condition precedent to the entertainability of the appeal."
' It was further explained in para (18) of the Report that issuance of notice before presentation of appeal will intimate the respondent not only about assailing the vires of favourable order in his favour but also provision of right to contest the appeal at limini stage. Similar proposition was again reiterated by the honourable apex Court in SALAHUD DIN v. Syed MANSOOR ALI SHAH and others (1997 SCM R 414). Perusal of the order dated 25-1-2010 suggest that notice was required to be issued in the name of the respondent who put his appearance through an Advocate and as such objection regarding non-service of notice under Order-XLIII, Rule 3 of The Code of Civil Procedure becomes immaterial.
9. Pursuant to above discussion, the appellant-applicant failed to persuade this Court to condone the delay within the meaning of section 5 read with section 14 of The Limitation Act 1908 and as such Civil Miscellaneous No,2 of 2010 is hereby rejected.
10. Admittedly, the appeal is barred by time and as such same is dismissed as envisaged by section 3 of The Limitation Act, 1908.