' MRS. IRSHAD QAISER, J.---The present appeal has been filed by the appellant against the judgment and order dated 27-11-2010 passed by Civil Judge-IV, Swabi whereby suit of the appellant was dismissed for non-compliance of the Court order dated 28-10-2010. Against which the appellant filed revision petition before the learned ADJ-IV, Swabi and vide order dated 22-3- 2011 the revision petition was returned in original to the appellant for lack of pecuniary jurisdiction to be presented to proper forum, hence the appellant filed the present appeal. On 22-9-2011 the appeal was admitted for regular hearing and notice was issued to respondent. But vide order dated 11-6-2012 the appeal was dismissed on the ground of non-prosecution. On 9-7-2012 petitioner submitted C.M. No, 132-P of 2012 for restoration of in default for non-prosecution. Since application is within time and counsel for respondent has no objection, therefore, it is restored and the same may be entered in relevant register.
2. Arguments heard on main appeal and file perused with the assistance of counsel for the parties.
3. Now the question for determination is that whether the appeal is within time? If it is not whether he is entitled for any condonation of delay in filing appeal and whether section 5 and section 14 Limitation Act 1908, would come to the rescue of appellant?
4. It is admitted fact that impugned order and judgment was passed on 27-11-2010 while appeal was filed on 22-4-2011 after the lapse of more than 5 months. Learned counsel for the petitioner contended that it was a case of bona fide mistake on the part of counsel for which a party should not have been penalized and that it was filed before ADJ in good faith. Now it is to be seen whether choosing of wrong forum in good faith and due to the act of counsel can be considered as good ground for condonation of delay in filing the appeal before proper forum.
5. It is settled principle of law that the delay in filing of appeal could not be condoned for once a matter was shown to be time barred and that the presentation of appeal before wrong forum is an act of gross negligence. In this respect reference is made to a case "Abdul Ghani v. Ghulam Sarwer", PLD 1977 SC 102 wherein apex Court held as follows:- Section 14 of the Limitation Act, 1908 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, 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 Court 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. Or, to take another example, an appellant can rely on section 5, if 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,"
6. This Court also seeks guidance from the principle laid down by Supreme Court in case "Sibtain Raza v. Hydrocarbon Developer 2012 SCMR 377 wherein it is held:-- ' "On perusal of section 14 of the Act, it appears that time spent in pursuing the proceedings before wrong appellate forum, cannot be excluded, for the purposes of filing of an appeal and in case appeal is barred by time the provision of section 5 of the Act can only be invoked, that too, by showing the sufficient cause. The two expressions "due diligence" and "good faith" in D section 14 do not occur in section 5 of the Act which enjoins only "sufficient cause". The expressions "due diligence" and "good faith" used in section 14 of the Act cannot be equated with the expressions "sufficient cause" used in section 5 of the Act. If it were so, the Legislature could have used identical expressions in both sections particularly when "good faith" has been defined in section 2(7) of the Act. The power to condone the delay and grant an extension of time under section 5 of the Act is discretionary, whereas under section 14 of the Act, E exclusion of time is mandatory on the satisfaction of the condition prescribed in it. On reading section 14 of the Act along with section 2(10), it appears that legislature specifically excluded the appeal or an application from the purview of "Suit". We left no doubt in our mind that benefit of section 14 of the Act cannot be extended to exclude the time consumed in prosecuting an appeal before wrong forum having no jurisdiction, for the purposes of filing an appeal before a forum having jurisdiction."
7. Reference may also be made to PLD 2003 Pesh: 46, wherein it is held that wrong ill advice of the counsel being not a valid ground for condonation of delay.
8. Keeping in view the above facts and circumstances of the case, I hold that appeal is time barred and he is not entitled to any condonation for filing appeal. Therefore, the appeal as well as C.M.
No,253 of 2011 are hereby dismissed with no order as to costs.