GHULAM MUSTAFA MUGHAL, J.---This appeal by leave of the Court arises out of the judgment passed by the Azad Jammu and Kashmir High Court in Appeal No. 32/2009, whereby the appeal filed by the appellants has been dismissed.
2. The precise facts forming background of the captioned appeal are that an application under section 7 of the Azad Jammu and Kashmir Waqaf Properties Act, 1960 was filed by the appellants, herein, against the defendants-respondents before the District Judge, Kotli on 8.6.2009. It was claimed that land comprising Khasra No. 2, 2min and 57, measuring 29 kanal 10 marla, situated in village Sainla, Tehsil Sehnsa was under the cultivation of the grandfather of the appellants namely Saidu son of Laloo as tenant. The grandfather of the appellants could not pay the land revenue, due to which the owners took back the land. After remission of the same, the land was returned to the grand-father of the appellants in view of mutation No. 11 attested on 11th August, 1900 Bk. The grandfather of the appellants was survived by four daughters and after his death, his rights were transferred in the name of his daughters namely, Begum Jan, Kareem Jan, Sarwer Jan and Isam Jan. Subsequently, Kareem Jan, Sarwar Jan and Isam Jan transferred their shares vide mutation No. 78 in favour of Begum Jan, who is the mother of the appellants. After her death the rights have been transferred to the appellants and they are in possession of the land as owners. The khasra numbers mentioned above have been renumbered in new settlement. In khasra No. 4, along with the grave-yard of the appellants' forefathers the shrine of Mastan Shah is also entered. It was claimed that Mustan Shah has no concern with the land because the same is in the ownership of the appellants, hence, the entries in favour of shrine of Mustan Shah are mala-fide, illegal, incorrect and inoperative against the rights of the appellants. It was claimed that vide notification dated 9th March, 2004, the respondents, herein, have taken over the land comprising khasra Nos. 3, 4, 5 and 75, measuring 23 kanal 14 marla which is illegal and mala fide may be declared as such. The application was contested by respondents by filing written statement. In the light of the pleadings of the parties, the learned District Judge framed issues on 14.10.2004. The parties were directed to lead evidence pro and contra. At the conclusion of the proceedings, the learned District Judge, Kotli vide judgment and order dated 29.5.2009 dismissed the application. The appellants, herein, felt aggrieved from the judgment of the District Judge, Kotli went in appeal before the Azad Jammu and Kashmir High Court on 8.6.2009. After hearing the parties, the learned High Court dismissed the appeal and maintained the judgment of the District Judge, Kotli vide judgment and order dated 9.5.2016 on the ground of limitation.
3. Sardar Abdul Hamid Khan, Advocate, appearing for the appellants, vehemently argued that initially against the notification dated 9th March, 2004, the appellants, herein, filed a writ petition before the Azad Jammu and Kashmir High Court because the District Judge was not competent to suspend the notification. However, the petition was withdrawn vide order dated 14.6.2004 with the request that the petitioners may be allowed to approach the proper forum. The learned Advocate maintained that after the order dated 14.6.2004, the appellants have filed an application under section 7 of the Azad Jammu and Kashmir Waqaf Properties Act, 1960. The learned Advocate submitted that the application under section 7 of the Azad Jammu and Kashmir Waqaf Properties Act, 1960 was filed 8 days after the withdrawal of the writ petition from the High Court on 14.6.2004.
He argued that the appellants have diligently and in good faith prosecuted their case and there is no fault on their part, hence, they cannot be penalized for the act of the Advocate. The learned Advocate contended that the appellants also filed an application for condonation of delay but the same has not been considered. The learned Advocate argued that the District Judge as well as the learned High Court miserably failed to extend the benefit of section 14 of the Limitation Act to the appellants because they remained prosecuting the writ petition on the advice of the counsel. The learned Advocate argued that even on merit the learned District Judge as well as the first appellate Court has misread the documentary evidence i.e. Exh. "PA" and "PW" and came to an erroneous conclusion. The learned Advocate contended that notification dated 9.3.2004 could be deemed to have been issued validly only when it was published in the official gazette and the fact of the matter is that this notification has not been published up till now, hence, the question of limitation does not arise. The learned Advocate placed reliance on the cases reported as Administrator Auqaf v. Ghulam Abbas and others (1993 M LD 2086), AlHaj Mian Ghulam Yasin v.
Managing Director, Aklasc, Muzaffarabad and another (1987 CLC 1307) Qurban Ali and another v.
The State (PLD 1984 SC (AJ&K) 104), Sarwar Khan v. Mir Ali and 10 others (1980 CLC 110 [SC (AJ&K), Akbar v. Sadiq and 15 others (1972 SCM R 23), Baladeb Jew Thakur v. Dhaneswa r Misra (AIR 1961 Orissa 54) and Kilachand Devechand and Co. ("Private) Ltd. v. Messrs Sh. Mian Mohamed Allahbux (PLD 1962 (W.P.) Karachi 510).
4. Sardar Javed Naz, Additional Advocate General appearing for the respondents controverted the arguments advanced on behalf of the appellants and submitted that both the Court concurrently came to the conclusion that the petition filed under section 7 of the Azad Jammu and Kashmir Waqar Properties Act, 1960 on behalf of the appellants was time barred, hence, the same has rightly been dismissed. The learned Additional Advocate General contended that the order under challenge cannot be termed as illegal, erroneous and arbitrary by any stretch of imagination. He argued that even from the documentary evidence the case of the appellants has not been proved.
The learned Additional Advocate General has placed on record a copy of notification dated 9th March, 2004, which appears to have been published on the same date.
The learned Additional Advocate General further argued that the benefit of section 14 cannot be extended to the appellants because the appellants have deliberately chosen the wrong forum for redressal of their grievance.
5. We have heard the learned counsel for the parties and also gone through the record of the case.
It is an admitted position that the appellants after issuance of notification crated 9th March, 2004 challenged the legality and correctness of the same through a writ petition before the Azad Jammu and Kashmir High Court on 18.3.2004. This petition remained pending before the High Court for a period of three months and stood withdrawn on 14.6.2004. The benefit of section 14 of the Limitation Act, in the circumstances and in view of the conduct of the appellants, herein, cannot be extended to them. Under section 14 of the Limitation Act, extension in limitation can be given only to the party who has been prosecuting his case with due diligence. In the present case, the appellants have filed the writ petition although an alternate efficacious remedy in shape of section 7 of the Azad Jammu and Kashmir Waqaf Properties Act, 1960 was available to them, hence, it cannot be said that the time consumed in prosecution of writ petition till the withdrawal has been consumed bonafidely. By now, it is well settled that even a wrong advice of the counsel does not constitute sufficient cause for condonation of delay. The proposition has been examined by this Court in an unreported case titled Kh. Tariq lqbal and another v. Zaffar Ahmed Dar (Civil Appeal No. 228 of 2015 decided on 7.2.2017), wherein, it was held as under:-- "The arguments of the learned counsel for the respondent that if the respondent had chosen a, wrong forum i.e. Secretary Works and Communication then it was the duty of the Secretary Works and Communication to return the appeal but he kept the same pending for a considerable time, cannot be made a ground for the condonation of delay...."
Reference may also be made to the case reported as Mirza Lal Hussain v. Custodian of Evacuee Property and others (1992 SCR 214) and 1998 M LD 416. Recently, this Court has also reiterated the same view in the case titled Abdul Rahim Zubair Butt v. Competent Authority and others (Civil Appeal No. 28 of 2017 decided on 23.2.2017), wherein, at page 30 of the judgment, it has been observed as under:-- "...It may also be observed here that the remedy available to the appellant against the final order dated 21.8.2002, was in shape of appeal before the Service Tribunal and the limitation provided for the same is 90 days. The appellant after dismissal of petition for leave to appeal by this Court filed an appeal before the Service Tribunal on 31.12.2002, after more than 4 months' period from the final order passed by the competent authority which was hopelessly time-barred. The appellant also filed an application for condonation of delay under section 5 of the Limitation, 1908. The perusal of the application filed by the appellant for condonation of delay shows that he sought condonation for the period consumed in pursuing the remedy at the wrong forum and in this regard he has taken the stance that on the advice of some senior advocates he had chosen the said forum.
During the course of arguments, the learned counsel for the appellant has also submitted that the appellant bonafidely filed representation before the worthy Prime Minister on the advice of some senior Advocates. We are afraid, that delay cannot be condoned on the ground that someone has given ill-advice to a person to choose a wrong forum for redressal of grievance. It may be observed here that law is settled on the point since long that if a litigant spends time in pursuing a remedy under a mistaken/negligent advice the period spent by him goes waste and in such situation delay cannot be condoned...."
The contention of Sardar Abdul Hamid Khan that notification dated 9th March, 2004 was not published as per requirement of the Azad Jammu and Kashmir Waqaf Properties Act, is devoid of force. Sardar Javed Naz, Additional Advocate General has placed a copy of duly published notification dated 9.3.2004 on the record, which appears to have been published on the same date. In view of the above, we have reached the conclusion that the application filed on behalf of the appellants before the District Judge was hopelessly time-barred and has rightly been dismissed on that account by the District Judge as well as the learned High Court. We have considered the judgments referred to and relied upon by the learned Advocate for the appellants.
The facts of the cases are distinguishable and in view of the recent pronouncements of this Court, cannot be relied upon. As the application is time barred, therefore, discussion on the other points argued at the bar regarding the merits of the case would be mere an academic discussion.
The upshot of the above discussion is that finding no force in this appeal, it is hereby dismissed. No order as to costs.