' MALIK MANZOOR HUSSAIN, J.---Instant revision petition has been preferred against Judgment dated 6-8-2013 passed by the learned Additional District Judge-IV, Peshawar, whereby the appeal filed by the petitioner was dismissed and the Judgment passed by the trial Court dated 13-12-2012 was confirmed.
2. Briefly, the facts of the case are that petitioner filed a suit for specific performance of contract on the basis of agreement dated 18-5-2006. This suit was resisted by the respondents and after recording pro and contra evidence, learned trial Court dismissed the suit vide judgment dated 13- 12-2012. The petitioner preferred appeal before this Court and through order dated 15-4-2013, the same was withdrawn by the petitioner on the ground of pecuniary jurisdiction for presenting the same before proper forum. Thereafter the petitioner filed appeal on 26-4-2013 in the Court of District Judge which was entrusted to Additional District Judge-IV, Peshawar. However, preliminary objections were forwarded by the respondent about maintainability of the appeal and through impugned order dated 6-8-2013 the appeal was dismissed, hence the present petition.
3. Learned counsel for the petitioner contended that the appeal filed before this Court bearing No,53/13 was returned due to pecuniary jurisdiction of this Court and was resubmitted to the learned District Court well within time. It was further contended that it was the duty of High Court to transmit the appeal to the District Court instead of return of the same, thus due to act of the Court, the petitioner was non-suited. Lastly contended that the appeal was presented bonafidely before the forum, therefore delay if any should have been condoned and the matter had to be decided on merits.
4. Conversely the learned counsel for respondent argued that the appeal which was returned to the petitioner for re-submission, had not been filed, as it was returned, but all together a new drafted appeal was filed in the District Court, which was hopelessly time barred. It was further contended that in the application for condonation of delay only reason mentioned was that due to death of sister of learned counsel, appeal could not be filed within time but there is no affidavit of learned counsel in support of contention of the petitioner on the record. It was further contended that appeal was a public document which could not be withheld by the petitioner, but the same would have been resubmitted/presented to the concerned quarter within reasonable time. Lastly it was concluded that the petitioner cannot blame this Court for transmission of appeal to concerned Court as the petitioner himself requested for withdrawal of appeal and gave an open hearted statement in the High Court.
' Arguments heard and record perused.
5. Perusal of the record reveals that against Judgment dated 13-12-2012, appeal was filed in this Court which was returned on 15-4-2013 for want of pecuniary jurisdiction. Instead of submitting the same appeal before the learned District Court, the petitioner filed all together a newly drafted appeal on 26-4-2013.
6. It is well settled by now that wrong advice or ill advice of the counsel is no ground for condonation of delay. Reliance can be placed in case of Raj Muhammad v. Mst: Chand Bibi and others (1984 SCMR 1058), Mian Azad Bakhsh v. Sheikh Muhammad Afzal (1985 SCMR 1003) and Islam Din v. Allah Nawaz (1988 SCMR 2). This view has been followed by this Court in the case of Municipal Committee Tank and another v. Waris Khan and 2 others (2005 CLC 154), wherein it has been held by a learned Division Bench of this Court that a counsel having not even consulted the Civil Courts Ordinance and the basic requirements of lodging an appeal, cannot be said to have acted with due diligence, thus the negligence of a counsel has been considered not to be an act done in good faith as the same was not done with due care and caution, thus was never a "sufficient cause" for condonation under section 14 of the Limitation Act.
7. There is another aspect that it was the duty of the petitioner himself to be vigilant and protect his right in the proper forum. In the case of Zafar Iqbal Khan v. Pakistan Agricultural Research Council, Islamabad and others (2003 SCMR 1471), it has been held by the Hon' able Apex Court that litigating before a wrong forum has never been considered to be a bona fide act in law and the delay caused thereby has never been condoned.
8. Similarly it is well settled that in case the appeal or suit was returned to the appellant/plaintiff for presentation of the same in the proper forum, it was the duty of the appellant/plaintiff to present the same, as it is, in the proper forum. The return of original memo of appeal along with record annexed depicts the fact that the same should be filed in its original condition in the proper Court, as the same is a "public document" and part of record of the Court. After return it does not become the private property of the appellant/plaintiff. The appellant was under obligation to present the same, in its original condition and could not have filed afresh or amended appeal and by not doing so he have not only violated the provision of return of appeal to be presented in the proper forum but also have lost the concession in the shape of section 14 of Limitation Act.
9. The most significant aspect of this case is that the appellant beside considerable delay for filing of the appeal before the District Court, after its return from this Court, changed and amended the original memo of appeal presented before this Court, rather fresh memo has been filed before District Court. It is no where in law that such amended/fresh drafted memo amounted to a "return memo" for the purpose of section 14 of Limitation Act. In all purpose, it would be treated as fresh appeal and limitation has to run as provided for filing of fresh appeal. Reliance can be placed in case of Sardaraz Khan and 36 others v. Amirullah Khan and 34 others (PLD 1995 Peshawar 86) and Mst. Khalida Begum and 2 others v. Mst. Yasmeen and 4 others (2000 CLC 1290).
In view of what has been discussed above, the fresh appeal filed by the petitioner before District Court has rightly been dismissed and needs no interference. This petition being devoid of any force is dismissed.