' The applicant, Abdul Sattar, instituted a suit against the respondents for possession of the suit property through specific performance of agreement to sell dated 24-5-2006. The respondents filed an application under Order VII, Rule 11, C.P.C. For rejection of plaint. The said application was accepted by the learned Civil Judge 1st Class, Okara who vide order and decree dated 8-10-2011 rejected the plaint. Feeling aggrieved, the applicant assailed the aforesaid decree through an appeal under section 96, C.P.C. Before the learned Addl. District Judge, Okara. The valuation of subject matter in the suit was Rs, 3,150,000 which was beyond the pecuniary jurisdiction of the learned Addl. District Judge, Okara and, thus, vide order dated 18-5-2012 the appeal was returned to the applicant with a direction to file the same before the competent forum. Thereafter, the applicant on 3-9-2012 preferred an appeal before this Court along with the instant application under section 5 of the Limitation Act, 1908 for condonation of delay.
2. The applicant in this application has stated that the learned Addl. District Judge, Okara vide order dated 18-5-2012 returned the appeal; that the appeal was presented before this Court in the month of July, 2012 but the office refused to entertain the same due to summer vacations; that after summer vacations the appeal was presented on 3-9-2012; that the appeal was returned by the office with the objection that a separate application under section 5 of the Limitation Act be filed; and, that the time consumed in taking back the memorandum of appeal and then to refile it before this Court is condonable and thus the delay, if any, may be condoned.
3. The question which requires determination in this application is as to whether the period with effect from the date of decree till the filing of appeal before this Court can be condoned. The above said question may be answered by taking guidance from the following extract of the judgment rendered by the Hon'ble Supreme Court of Pakistan in the case of Karamat Ullah and 3 others v.
Sardar Muhammad Aslam Sukhera (1999 SCM R 1892):- "And the appellants would be required to explain this delay for the period, commencing from the date of decree till the filing of - the appeal before the District Court. Even if the period during which the first appeal remained pending in the High Court is ignored, still the appellants need to explain the delay after the order of return of memorandum of appeal i,e, 17-3-1987 till the filing of the appeal before the District Judge i,e, 18-5-1987. The explanation in the application filed under sections 5 and 14 of the Limitation Act is hardly satisfactory. There was no reason for applying certified copies and awaiting their delivery by the Copying Agency as the appeal was simply to be received and re filed before the District Judge. Even if the explanation of having applied for copies is attached some importance, yet the appellants are required to explain their failure to refile the appeal immediately on receiving the certified copies of the orders of the High Court. The memo of appeal was received by them on 9-5-1987 and there was no reason to file the appeal on 18-5- 1987 after 9 days delay, not only that, the conduct of the appellants demonstrates acute negligence but also their application fails to explain delay for each day from 9-5-1987 to 18-5- 1987.
' In the presence of section 18 of the West Pakistan Civil Courts Ordinance, there could be no doubt or complication to determine the forum of appeal. Sections 5 and 14 of the Limitation Act would come into play only if the delay appears to be condonable because of the appellants prosecuting their case with due diligence. The time consumed in pursuing the appeal in wrong forum could not be condoned under section 5 of the Limitation Act. Ghulam Ali v. Akbar alias Akoor and another (PLD 1991 SC 957) may be cited in this behalf. In Abdul Ghani v. Mst. Mussarat Rehana (1985 CLC 2529) it was observed that for bringing the case within the ambit of principles governing section 14, the appellant has to show that he prosecuted his remedy before the wrong forum in good faith. In Government of Pakistan v. Rafi Associates Limited (1985 CLC 2234 Kar) choosing wrong forum lacking due care and attention were not considered as acts done in good faith. The principle that the act of Court shall prejudice nobody is not attracted in the present case, as the delay was on account of the appellant's own negligence and not due to the act of Court."
4. Now, the case in hand is examined in the light of afore-cited judgment. The perusal of instant application reveals that the applicant has not explained the delay after the order of return of memorandum of appeal i,e, 18-5-2012 till the alleged filing of appeal before this Court in July, 2012.
The memorandum of appeal was received by the applicant on 18-5-2012 and there was no reason to file the appeal in July, 2012. This conduct of the applicant, as per above quoted precedent, demonstrates acute negligence.
5. There is yet another angle to address the issue under discussion. The applicant instituted the suit for possession of the suit property through specific performance of agreement to sell. It is the case of the applicant that he had purchased the suit property for a consideration of Rs, 3,150,000. It means that value of the suit property for purposes of court fee and jurisdiction was Rs,3,150,000. In this view of the matter there could be no doubt or complication to determine the forum of appeal.
Sections 5 and 14 of the Limitation Act would come into play only if the delay appears to be condonable because of the applicant prosecuting his case with due diligence. Thus, as per principle laid clown by the Hon'ble Supreme Court in the case of Karamat Ullah (supra), the time consumed in pursuing the appeal before the District Court, that is, the wrong forum in the given facts and circumstances of the case cannot be condoned under section 5 of the Limitation Act because applicant has failed to show that he prosecuted his remedy before wrong forum in good faith. The principle that the act of Court shall prejudice nobody is not attracted to the case in hand as the delay was on account of the applicant's own negligence and not due to the act of Court.
Thus, the application in hand being bereft of any merit is dismissed.
MAIN CASE
6. Since C.M. No,2-C/2012 has been dismissed; the appeal is also dismissed being barred by time.