This Regular Second Appeal No. 39 of 1981 arises from the judgment of the learned District Judge, Vehari, whereby he, on 7-6-1981 accepted the appeal filed by Noor Muhammad and others respondents/plaintiffs against the judgment and decree of the learned Civil Judge, Mailsi dated 29-6-1978, decreeing the suit filed by Noor Muhammad and others against Mst. Kaniz. Fatima and others for possession through pre-emption on payment of Rs. 12,95,437.11.
2. Noor Muhammad and others, plaintiffs/respondents feeling dis--satisfied with the finding of the learned trial Court on issues Nos. 7 and 8 which are as follows :-
(7) Whether Rs. 12,95,437. 11 were fixed bona fide and. Actually paid as sale price of the suit land ?
OPD.
(8) What was the market value of the suit property at the time of sale ? OPP. Filed Regular First Appeal No. 211- of 1978 before the Lahore High Court, Lahore, on 3-8-1978, fixing the jurisdictional value for the purpose of appeal as Rs. 8,63,624. It is to be noted that Regular First Appeal was filed by Mr. Javed lqbal Ch. The Regular First Appeal was admitted, stay granted, notices were issued to Mst. Kaniz Fatima and others, the .Present appellants. The appellants/defendants appeared before the High Court and raised an objection that the High Court had no jurisdiction to hear the Regular First Appeal, because the original value of .The suit for the purpose of jurisdiction was Rs. 12,960 as fixed by Noor Muhammad and others respondents/plaintiffs. Noor Muhammad and others contested the objection. On 12-4-1980, the High Court held that the appeal should have been filed before the learned District Judge and directed that the same may be returned to Noor Muhammad and others. The respondents/ plaintiffs received back the plaint on 22-4-1980 and presented the same before the learned District Judge, on 23-4-1980. The learned District Judge, Vehari, however, entertained the appeal subject to the question of limitation. The present appellants submitted reply on 23-7-1980 alongwith copy of the order passed by the High Court in Regular First Appeal No. 210 of 1978. The learned District Judge. Vehari, vide his order dated 7-6-1981, accepted the appeal, modified the finding on issues Nos. 7 and 8, he reduced the decretal amount of Rs. 12,95,437.11 to Rs.
4,31,812.31 and directed the respondents/plaintiffs to deposit the same on or before 15-9-1981, failing which their suit shall stand dismissed with costs. Feeling aggrieved by this judgment and decree the appellants/defendants filed this Regular Second Appeal.
3. The learned counsel for the appellants contends that the appeal was clearly time-barred and it was not a case of bona fida mistake for the following reasons :-
(i) That Noor Muhammad and others had filed a suit for possession through pre-emption against Mst. Kaniz Fatima and others with respect to soma other land which was decreed. Noor Muhammad and others, filed Regular First Appeal No. 210 through Mr. Javed Iqbal Ch. (the learned counsel who filed R. F. A. No. 211/78). In R. F. A. No. 210/78, Mst. Kaniz Fatima and others raised a similar objection as to the jurisdiction of the Court. The objection was con--ceded by the respondents and the Q. F. A. No. 210/78 was withdrawn on 23-4-1979. Therefore, it had come to the notice of respon--dents/plaintiffs at least on 23-4-1979 when R. F. A. No. 210/1978 was decided that it was the jurisdictional value of the original suit which form the basis for the jurisdictional value of the appeal and not the difference in the sale price.
(ii) That the respondents/plaintiffs have fixed the value for the juris--diction in -the plaint as Rs.
12,960 and as such the appeal should have been filed before the learned District Judge and not before the High Court. Thus, there was no scope of mistake as section 3 of the Suits Valuation Act, read with section 13 of the West Pakistan Civil Courts Ordinance, is very much clear on the point.
(i.e) That, with the R F A, Noor Muhammad and others had attached decree sheet which indicates that the jurisdictional value was Rs. 12,960.
(iv) That in spite of the fact that it was in the knowledge of Noor Muhammad and others at least on 23-4-1979 that R.F.A No. 211/78, was not competent before the High Court, and should have been filed before the learned District Judge. They did not care to receive back the same and present it before the competent Court.
(v) That on 12-4-1980, it was decided by the High Court that R. F. A. No. 211/78 was not competent before this Court and directed the same- to be returned to the present respondents but did not care to receive back the same till 22-4-1980, although the same was ready to be returned on 14-4- 1980. On the other hand, the learned counsel for the respondents has defended the impugned judgment and decree and submits that the appellants were, in fact, misguided by their learned counsel, the R.F.A. Having been admitted by the High Court and stay granted, the delay, if any, was not mala fide.
4. I have heard the learned counsel for the parties and gone through the record with care. I find that-
(i) respondents herein-filed a suit for possession through pre-emption and according to the plaint the jurisdictional value was Rs. 12,960.
(ii) a similar suit between the sum.- parties gave rise to R.F.A. No. 210/78 which was filed by the same counsel and in that R.F.A. An objection was raised about the jurisdictional value of the High Court. The objection was considered and R.F.A. No. 210/78 was withdrawn on 23-4-1979. This would show that at least on 23-4-1979, the respondents herein had come to know that the value of the appeal for the purpose of jurisdiction was the same as fixed by them in the plaint.
I further find that in spite of this knowledge, the respondents herein did not bother to take appropriate steps to receive back the appeal from the High Court and present the same before a Court of competent jurisdiction ; (i.e) that on 12-4-1980 it was decided by the High Court in R.F.A. No. 211;78 (which had arisen from the judgment and decree passed by the trial Court) that the High Court was not a competent Court and the first appeal should have been filed before the District Judge and the High Court directed that the appeal be returned to the appellants.
I further find that the appeal was ready to be returned on 14-4-1980 a blue slip was added on 14-4- 1980 in this respect, but in spite of that the respondents herein did not care to receive the same till 22-4-1980.
5. In view of my above findings I am of the opinion that there was no justification in condoning the delay, in filing the appeal and the present, respondents were not entitled to any indulgence.
6. Section 18 of the West Pakistan Civil Courts Ordinance, 1962 clearly lays down that an appeal shall lie to the High Court if the value of the original suit in which the decree or order was made exceeds Rs. 25,000 and to the District Judge in other cases. There is absolutely no ambiguity about this section, but the appellants claim to have beers devised by an Advocate who had filed the appeal. I find that the respondents herein, themselves had valued the jurisdictional value as Rs.
12,946. It is, therefore, not possible to understand, how an Advocate could have advised the appellants to file appeal before the High Court. It is, therefore, difficult to believe that the respondents herein were mis--guided by legal advice, but if they were, then I have to observe with regret that the respondent's Advocate acted with gross negligence in filing the appeal in the High Court. In any case, there was no jurisdiction for not taking steps to get back the plaint and present the same before a competent Court after the decision on a similar point in R.F.A. No. 210 of 1978 on 23-4-1979. Between the same parties.
7. It is now well recognized that the negligence on the part of a counsel is not a sufficient ground for condoning the delay and that a wrong advice resulting from want of reasonable skill on the part of a counsel is a negligence.
8. The upshot of the discussion is that the appeal against the judgment and decree of the learned trial Court dated 29-6-1978, pre--sented before the learned District Judge on 23-4-1981, was hopelessly time-barred and there was no factual or legal justification for condoning the delay. The result is that this appeal is accepted and the judgment and decree passed by the learned District Judge, Vehari, dated 7-6-1981 is hereby set aside. This restores the judgment and decree passed by the trial Court.
Since the suit for possession through pre-emption filed by Noor Muhammad and others with regard to the suit land against Mst. Kaniz Fatima and other appellants/defendants was decreed on payment of Rs. 12,95,437.11 by the learned trial Court and the deposit of the sale price was stayed by the High Court, the respondents/plaintiffs are directed to deposit the said amount, less the amount already deposited, on or before 30-5-1982, in default whereof, the suit shall stand dismissed. The parties, however, are left to bear their own costs.