MUHAMMAD DAUD KHAN, J.--The facts are that the respondent/Plaintiff Mst Nisar Begum sued the appellant/defendant for seeking the following reliefs:- (Alif). Declaration of being owner of the suit house, fully defined in the plaint, on the basis of gift deed executed by Mst. Bismal Jana D/o Muhammad Khan Kundi, besides cancellation of mutation being product of fraud etc. (Bay). Possession through demolition.
(Jeem). Recovery decree Rs.4,50000/ qua values of decrees.
(Daal). Perpetual prohibitory and mandatory injunction.
(Ray). Recovery of Rs:5 millions as compensation for the mental torture and physical loss sustained.
In the plaint value for the purpose of jurisdiction is made as Rs.200/- while for the purpose of Court fee as Rs.3000/-.
At the time of institution of suit, Court Fee has not been affixed. On an objection raised by the appellant/defendant for the purpose of jurisdiction and the Court Fee on the direction of learned trial Court the respondent/plaintiff made his good deficiency in the Court Fee and maximum court fee Rs 3000/- was paid accordingly.
2. The appellant defendant has been served, contested the suit by submitting written statement wherein many legal as well as factual objections were raised. On divergent pleading of the parties issues were framed. After recording pro and against evidence and conclusion of trial, the learnt trial court after hearing the parties decreed the suit of respondent plaintiff only to the extent of prayers mentioned as 1, 2, 4 and prayers 3, 5 being not proved stand dismissed vide its judgment and degree Dated: 18/12/2009.
Dissatisfied with said judgment and degree, the appellant/ defendant preferred an appeal before Distt. Judge Lakki Marwat through his counsel on 23/12/2009 and this appeal was entrusted to Additional Distt. Judge 1st, Lakki Marwat for disposal. However appeal was entertained but it was returned as the appeal was found beyond the pecuniary jurisdiction of Distt. Judge with relevant record and copy of order vide its order Dated: 26/04/2011 by Additional Distt. Judge 1st, Lakki Marwat. On returned it is re-filed by the appellant before this Court on 13/06/2011 and was admitted to regular hearing vide order Dated: 24/06/2011.
Mr. Shoukat Hayat Khan Khakwani, learned counsel for the appellant contended that filing of appeal before Distt. Judge, that was wrong forum neither intentional nor due to negligence, but because of misunderstanding of suit valuation mentioned in the plaint.
Secondly filing appeal before Distt. Judge having no pecuniary jurisdiction was well within the prescribed period, if it was fault of the appellant on the face of it, the learned Distt.
Court should have returned the same at the moment of filing the same. The Distt. Court entertained the appeal and returned after 19 months for want of pecuniary jurisdiction. So there was no fault of appellant in this regard and the appellant and or his counsel in the circumstances cannot be burdened for such delay and appellant should not be punished because of the act of the court. The learned counsel in support of his contention placed reliance:- 'Government of N.-W.F.P. and others v. Akbar Shah "(2010 SCMR 1408),"Mst. Bas Khan and others v. Muhammad Rais Khan and others"(PLD 2005 Peshawar 214), "Sher and other v.
Fazal Muhammad and others "(1995 SCMR 584), "Taza Gul and others v. Hall Fazal Subhan"
(2006 SCMR 504), "Dilawar Shah v. Nasrullah Khan" (PLD 2011 Peshawar 256).
Conversely Mr. Aziz Ur Rehman Khan, learned counsel for the respondent vehemently opposed the arguments of the learned counsel for the appellant. He contended that time consumed pursuing appeal in wrong forum could not be condoned. He further submitted that original suit was joinder of different cause of actions for which respondent/plaintiff sought multi claims and prayers in the plaint and maximum court Fee was paid by the direction of Court, on the pecuniary objection raised by the defendant during trial. The learned counsel for the respondent also pointed out that the appellant was grossly negligent in prosecuting their remedy as the appeal was returned by Distt. Court on 26/04/2011 and instant appeal before this Court was filed after further laps of 48 days without any explanation. The learned counsel placed reliance on'the cases; "Ghulam Ali v. Akbar alias Akoor and others" (PLD 1991 SC 957), "Raja Karamatullah and others v. Sardar Muhammad Sakheera" (1999 SCMR 1892) "Mst Mussarat Ara Khanum v.
Umeed Ali and others" (PLD 1999 Quetta 36), "Haji Zabta Khan v. Dr. Ahmad Ali Siraj and others" (2014 YLR 1015)
6. Lengthy argument of learned counsel for the parties heard and with their precious assistance record perused.
7. The pivotal question regarding determination is whether the appellant is entitled to the condonation of delay in filing the appeal in this court after consumed more than 19 months in Distt. Court that was admittedly wrong forum on the basis of lack of pecuniary jurisdiction. For determination of this question the mentioning of some facts and certain dates would be important and necessary for just decision of the matter.
8. The suit of the Respondent/plaintiff was for seeking declaration, possession, permanent injunction, recovery of compensation and recovery of Rs.5 Millions and court Fee Rs.3000/- has been affixed by the order of trial court on the acceptance of objection raised by appellant himself in their written statement during trial. On conclusion suit was partially decreed on 18/12/2009 by trial court. The appellant instead of preferring the appeal before this Court, filed the same in the Distt: Court. The Additional Distt. Judge vide its order dated 26.04.2011 returned the appeal with required record and copy of the order. Later on the appeal was filed before this Court after further delay of 48 days. Since the jurisdictional value of suit was based on Rs:5 Millions as damages in "Juz Ray", the appeal was competent before the High Court under section 18 of the West Pakistan Civil Courts Ordinance (II of 1962). The counsel of the appellant/defendant who filed written statement and raised objection on the suit value for the purposes of jurisdiction and court Fee and the respondent/plaintiff affixed the maximum court Fee on the order of court and specific issue No.4 was framed and decided by the learned trial court in its Judgment. The finding of the issue No. 4 reproduced as under ......
ISSU E NO-4:- The plaintiff has deposited Rs: 3000/- court Fee, which is maximum amount levied as court Fee. The issue is accordingly disposed of in favour of plaintiff.
The learned counsel for the appellant in order to overcome these self created difficulties has tried to throw the blame on the Distt. Court, according to him it was the act of Distt. Court who entertained the appeal and contributed towards expiry of limitation of filing appeal in the High Court. So, all the time consumed from its entertainment to its returns could not be with debited in account of appellant and this appeal could not be suffered for time bar. The learned counsel was of the view that time was consumed due to act of the court. It would certain that after constituting the sufficient cause in condonation of delay, the appellant would entitle for condonation of delay under Sections 5 and 14 of the Act.
9. In order to consider the argument advanced by the learned counsel of the appellant, I deem it advantageous to reproduced below Sections 5 and 14 of the Limitation Act, 1908:- "5. Extension of period in certain cases:--Any appeal or application for a revision, or a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application in the such period."
"14. Exclusion of time of proceedings bona fide in court without jurisdiction.---(1) In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceedings, whether in a Court of the first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.
From the perusal of section 14 of the Limitation Act, it transpires that time spent in pursuing the proceeding before the wrong appellate forum cannot be excluded on the clog provided in section 2(10) of the Limitation Act, as the suit does not include the appeal or the application. It leaves no doubt in my 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 purpose of filing of an appeal before the proper forum, having jurisdiction. In this behalf there is no need of detailed discussion because now it has been well settled that provisions of Section 14 cannot be invoked for the seeking condonation of delay of filing the appeal. Reference can be taken if needed to the judgment of the honorable Supreme Court of Pakistan reported in "Muhammad Hussain and others v. Settlement Commissioner and others" (1982 SCMR 425), "Mian Muhammad and others v. Additional Commissioner/Settlement Commissioner Rawalpindi and others" 1991 SCMR 520 and "Sherin and others v. Fazal Muhammad and others", (1991 SCMR 1679).
10. However for the purpose of filing an appeal, in case appeal is barred by time, the provision of section 5 of the Limitation Act can be invoked and that too, by showing sufficient cause. The Expressions "due diligence" and "good faith" mentioned in section 14 do not occur in Section 5 of the Limitation Act which enjoins only "sufficient cause"
The expression given in both sections cannot be equated with each other, therefore, the power to condone the delay and grant extensions in time under Section 5 of the Act ibid is discretionary. The condition prescribed in Section 5 of the Act for its applicability is "sufficient cause" but what is sufficient cause, is not capable of connotation and differ from case to case. To judge the sufficient cause, the matter involve capability of counsel of the party, the conduct of a party during proceedings are material to determine it.
11. In the instant recovery suit of Rs: 5 millions manifest under Section 18 of the West Pakistan Civil Courts Ordinance 1962, the appeal lies to the High Court. Now if the appellant proves that he filed his appeal in wrong forum despite due care and attention, it means that the presentation of appeal in the wrong forum was on account of situation beyond his control but in the instant case the provisions of the Section 18 of the West Pakistan Civil Court Ordinance are beyond any doubt there is no complication whatsoever, about the facts relating to question of proper forum for filing appeal, when the counsel for the appellant was well acquainted on filing of written statement raising pecuniary objection and affixation maximum court Fee in plaint, finding on the issue of No.4 it is clear that presentation of appeal in Distt. Court was an Act of gross negligence. The contention of the learned counsel for the appellant that there was no fault of appellant for delaying the filing of appeal before proper forum as the Distt. Court entertained the same and returned after lapse of much time so it is an act of court and appellant cannot be burdened for such delay. The appellant counsel is expected to know the legal position as to where the appeal is to be filed there is no gainsaying the assertion that other side didn't raise objection and it was not pointed out by the court that appeal was not maintainable but the court proceeded. The contention of the appellant is not tenable. Reliance can be taken on the Honorable Supreme Court of Pakistan In cases "Ismail v. Subaidar Gul Inayat Shah" (PLD 1991 SC 997) and "Abdul Ghani v.
Ghulam Sarwar" (PLD 1977 SC 102).
12. In the instant case the impugned judgment and decree was passed by trial court on 18/12/2009, appeal before Distt. court was preferred by appellant on 23/12/2009. On transpiration of wrong forum, appeal was returned to appellant on 26/04/2011 whereas the instant appeal before this court was preferred on 13/06/2011 after further delay of 48 days.
These crucial 48 days were neither mentioned nor explained by the appellant in Appeal. It is well settled Law, while determining the question, whether there is sufficient cause under section 5 of the Limitation Act to condone the delay in filing appeal/revision/ application/revision etc. the appellant/applicant/petitioner is required to explain each day. I fortified my this view by dicta laid down by the Honorable Supreme of Pakistan in cases "Raja Karamatullah and others v. Sardar Muhammad Aslam' Sakheera" (1999 SCM R 1892), Doctor Syed Sabtain Raza Naqvi v. Hydro Corbon Limited and others" (2012 SCM R 377) and "Haji Zabta Khan v. Doctor Ahmad Ali Siraj and others" (2014 YLR 2015).
13. More so, while filing the instant appeal before this court the appellant neither claimed condonation of delay in the memorandum of appeal nor submitted application for this purpose. The appellant however submitted application under section 5 for condonation of delay just previous date on 21/04/2014 after laps of more than two years.
14. The case law referred and relied upon by the learned counsel for the appellant on the subject are distinguishable and not relevant in view of the facts of the instant case, hence, reliance in this regard appears to be misplaced.
15. In view of the forgoing discussion, the appellant has failed to satisfy this court that he had been prosecuting his remedy before the wrong forum in good faith, due diligence and is, therefore, entitled to the condonation of delay in filing the appeal to the Distt. Court. In the consequences, the appeal as well as application of condonation of delay on the point of limitation are dismissed, leaving the parties to bear their own cost.