' MISS AALIA NEELUM, J.---The appellants by way of present appeal preferred under section 12 of Punjab Waqf Properties Ordinance, (IV of 1979) have called in question the legality of order dated 1- 3-2011, whereby the learned ADJ, Jhang dismissed application of the appellants. Since the appeal is barred by time, therefore, the appellants have filed application under section 5 of the Limitation Act, 1908 (C.M. No,2-C of 2011) seeking condonation of delay in preferring F.A.O. No,375 of 2011.
2. Feeling aggrieved of notification. Dated 14-7-1970 issued by Auqaf Department/respondent, the appellants/applicants filed an application under section 11 of the. Punjab Waqf Properties Ordinance, (IV of 1979), seeking a declaration that land measuring 151 kanals 18-marlas along with residential houses/superstructure built therein, located in Mouza Bhangoo, Tehsil Shorkot, District Jhang is not a Waqf Property and could not have been taken over by the respondent/Waqf Department. In the said application, it was stated that the land is owned and possessed by the family of the appellants/applicants and it has never been dedicated as Waqf within the meaning of said Ordinance. It was stated that in the "Jamabandi" pertaining to the year 1924 in the column of ownership, Khanqah Hamid Shah was recorded, which was contrary to the previous entries and name of owner was dropped and according to the appellants/applicants this change of entry in the "Jamabandi" was brought in, without any attestation of mutation and in column of possession names of Noor Hassan, Allah Ditta sons of Ameer Bakhsh and Muhammad Baldish son of Cheragh Shah were recorded and the same entry was recorded in the record prepared thereafter.
3. The petition was contested by the respondent by filing written reply. It was stated that notification was issued on 14-7-1970 and as such the application was barred by time. On merits, it was stated that status of the appellants/applicants was not more than of a "Faqir" or "Mujawar" of the "Khanqah"/shrine situated therein and mere possession in such capacity did not give any right or title of ownership to them or a cause of action to challenge the impugned notification. The learned trial court in view of the divergent pleading of the parties framed the following issues:-
(1) Whether the application under section 11 of the Punjab Waqf Properties Ordinance IV of 1979 is time barred, hence, is liable to be dismissed? OPR
(2) Whether the present petition is hit by principle of res judicator and not maintainable? OPR
(3) Whether the petitioner has no locus standi to challenge the Notification dated 14-7-1970 and does not have any cause of action to file this application? OPR
(4) Whether the applicant is estopped through his words and conduct to file the instant application? 'OPR
(5) Whether the petition has been filed with mala fide to harass the respondent and thus, the respondent is entitled to special costs under section 35-A, C.P.C.? OPR
(6) Whether no entory in the "JAMABANDI" could be made without attestation of mutation and entry in the last settlement of 1924-25 resulting in the change of ownership of predecessor of the petitioner, as without lawful authority and of no consequence? OPA
(7) Relief.
4. The learned counsel for the applicants/appellants has contended that the 'findings rendered by the trial court on the issue No,2 are not based on the evidence of the appellants. The learned counsel for the applicants/appellants in support of his application moved under section 5 of the Limitation Act, 1908 states that counsel for applicants/appellants told them that on 12-7-2011, the High Court would close for summer vacations and appeal could be filed on the 1st day of September, 2011 on opening of the courts; that the wrong advice by the counsel is a sufficient ground for condonation of delay.
5. Learned counsel for respondent has pointed out that there is no affidavit sworn by the counsel, who had given alleged wrong advice to the applicants/appellants. It was further contended that appeal filed before this Court is hopelessly time barred. Also states that applicants/appellants have no locus standi to challenge the notification dated 14-7-1970 as revenue record shows that they were not owners of land nor they challenged the entries of revenue record from 1852 to 1970 at any forum.
6. As the appeal is time barred by sixty two days, it is not necessary to go into merits of the case.
The applicants/appellants have filed an application for the condonation of delay under section 5 of Limitation Act, 1908 on the following grounds:-
3. "That counsel for petitioners also told that .On 12-7-2011 the High Court will close for summer vacations, so the appeal could be filed in September, 2011 on the 1st day of opening the Court"
7. From the contents of Para No,3 of application for condonation of delay, it appears that it is highly vague. Neither the name of the learned counsel, who advised them as mentioned in the application nor the date when said advice was tendered has been stated in the A application. It may be stated that there is no affidavit on behalf of the counsel for the applicants/appellants that he had given alleged advice to them/applicants. However, even if it is assumed that any such wrong advice was given that is not sufficient cause to condoning the delay as same is given due to counsel's negligence. It is held in the case of Mst. Mahmood Begum v. Major Malik Muhammad Ishaq (1985 SCMR 890) that ignorance of law on the part of a counsel cannot be condoned and the party concerned may seek redressal of his grievance against the counsel. It is held in the case of (Muhammad Manzoor v. Ghulam Murtaza (1994 SCM R 987) that no supporting affidavit of the Advocate has been filed. Without it condonation is not possible. It is also held in the case of Abdul Ghani v. Ghulam Sarwar (PLD 1977 SC 102) that mistaken advice by the counsel by itself is not a sufficient ground for condonation of delay in all circumstances unless it is shown that the advice rendered with due care and attention.
8.Another aspect of the case is that the applicants/appellants filed an application under section 11 of the Punjab Waqf Properties Ordinance (IV of 1979). After recording evidence of the parties learned trial court dismissed the application of applicants/appellants on 1-3-2011. The applicants/appellants applied for obtaining the certified copies of the judgment and decree dated 1-3-2011 on 18-3-2011 by lapse of 14 days. The certified copy was prepared and received on 27-4- 2011 and having only 46 days period to institute appeal in terms of Section 12 of the Punjab Waqf Properties Ordinance, IV of 1979. The appeal is filed before this Court on 13-8-2011 and the same is admittedly barred by 62 days. Whereas for condonation of delay an application under section 5 of the Limitation Act, 1908 has been preferred through C.M No,02-C of 2011. Admittedly, the provisions of section 5 of the Limitation Act, 1908 have been excluded from the application to the cases covered by Special Law and the cases under the Punjab Waqf Properties Ordinance, IV of 1979 being a special law cannot be governed the proceedings or the limitation period by section 5 of the Limitation Act, 1908. Period of limitation for filing of appeal has been prescribed in section 12 of the Punjab Waqf Properties Ordinance, IV of 1979, which is within sixty days of the order, which is reproduced as under:-
12. Appeal against the decision of District Court.- "Any person aggrieved by a decision of the District Court under subsection (1) of Section 11 may, within sixty days of the order, appeal to the High Court"
9. I am of the considered view that when Limitation is provided by any special enactment, other than the Limitation Act, section 5 of the Limitation Act, 1908 is not applicable for condonation of delay. Thus the submissions made by the learned counsel for the applicants/appellants for condonation of delay have no force. In this view .Of the matter, no sufficient cause for condonation of delay is made out with the result that C.M. No: 2-C of 2011 is rejected. The appeal preferred by the appellant is held to be barred by time and same is also dismissed.