' This appeal is directed under Order XLIII, rule I (r), C.P.C. Against the order of the learned Administrative Civil Judge, Multan, passed on 4th October, 1972 under Order XXXIX, rule 2, C. P. C..
Restraining the appellant from alienating one of the baling press till the disposal of the suit.
2. Solvex (Pakistan) Limited, respondent instituted a suit against Messrs M. A. Majid Engineering Company, Multan and its Manager Mr. M. A. Majid, appellants, for specific performance of the contract for the supply of a complete set of four sawgins machines and a baling press by enforcing delivery of the equipment and for recovery of Rs, 2,47,100 as damages for non-delivery of the said equipment. It was stated in the plaint that the appellants (defendants) were manufacturers of mechanical appliances including sawgin machines and baling presses. The Manager of the appellant approached the respondent and a contract was entered into between the parties on 22nd May, 1971 whereby they undertook to supply four swaging and a baling press by 31st July, 1971 for a sum of Rs, 3,85,000. The payment was stipulated through installments with the supply of goods accordingly. It was stated that the respondent had paid a sum of Ks. 2,32,205 at different times but only the swa ins could be supplied and those too in bad condition. The value of the suit as disclosed in the plaint was Rs, 2,47,100 for purposes of damages and Rs, 2,85,000 for purposes of specific performance. Alongwith the suit the respondent also made an application for temporary injunctions that the appellants may be restrained to alienate and remove the baling press to anyone except the respondent, and also for attachment of the articles before judgment.
3. The suit was resisted by the appellant and almost all the allegations in the plaint were denied in the written statement and reply to the application. It was asserted that there was no contract in existence and even if there was any its conditions have been waived. The suit was considered barred by time and by the provisions of Order II, rule 2, C.P.C. On the ground that another suit made by the respondent against the appellants for perpetual injunction restraining the appellants from delivering the manufactured baling press to anybody than the respondent was pending in the same Court. Various other objections were taken by the appellants against the suit.
4. The application for ad interim injunction and attachment before judgment came up for hearing before the learned trial Court who after hearing both the parties on 4th October, 1972 issued a temporary injunction till the final disposal of the suit directing the appellants not to alienate one of the baling presses till the disposal of the suit. The prayer for attachment before judgment was refused.
5. This order of the learned trial Court was brought to challenge in appeal in the Court of the learned District Judge, Multan. The appeal was kept pending in that Court when on 17th June, 1974 the learned District Judge observed that it exceeded the pecuniary jurisdiction, the value of the suit being Rs, 2,85,000 and it was ultimately returned to the appellants on 20th June; 1974 to be presented in proper Court. The appeal was consequently filed in the High Court on 21st June, 1974.
Alongwith the appeal an application to condone the delay under section 5 of the Limitation Act was also filed, stating only this much that the time was spent bona fide pursuing the matter in the wrong Court, but in the affidavit attached therewith it was shown that there was a counter-appeal made by the respondent against rejection of their prayer for attachment of the goods before judgment under Order XXXVIII, rule 5, C.P.C. But none of the parties raised the point of jurisdiction before the learned District Judge till when he himself found the defect.
6. A preliminary objection was raised by the learned counsel for the respondent that the impugned order was passed on 4th October, 1972 and appeal to this Court was filed on 21st June, 1974 which was barred by 534 days. It is contended that this appeal was wrongly instituted before the learned District Judge who had no pecuniary jurisdiction and when it was ultimately returned by the learned District Judge it was presented in proper Court with an application for condonation of delay, but that application did not disclose any reasonable explanation which would entitle the appellant an extension of time. The learned counsel for the appellants submitted that the appellants were advised by their counsel that appeal was competent before the learned District Judge and that they were, in fact misled by the appeal filed by the respondent against the same impugned order rejecting his prayer for an order of attachment. The appeal continued for a long time there without an objection, therefore, they were deemed to be continuing with the appeal in good faith.
7. It is an admitted fact that the suit for purposes of jurisdiction is valued at Rs, 2;85,000 and this valuation would stand unless otherwise determined by the Court. Although it was denied in the written statement as usual, but no alternate value was suggested. According to section 18 (I) (a) of the West Pakistan Civil Courts Ordinance, 1962 (Ordinance H of 1962) an appeal from a decree or order of a Civil Judge shall be the High Court if the value of the original suit in which the decree or order was made exceeds twenty-five thousand rupees and to the District Judge in any other case.
The valuation of the suit being more than Rs, 25,000 the appeal would lie to the High Court and not to the Distict Judge. Although the appeal was under Order XLIII, rule 1 of C.P.C. Against an order and not against the decree, the forum for it does not change. Section 18 of the West Pakistan Civil Courts Ordinance, 1962 does not speak of decrees only but it relates to the orders also, and an appeal even if it may be against the order would be to the High Court if the value of the Suit exceeds Rs, 25,000. Section 106 of the C.P.C. Also lays down the same procedure that where an appeal from any order is allowed, it shall be to the Court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a Court (not being the High Court) in the exercise of appellate jurisdiction then to the High Court. The appeal being competent in the High Court, could not be presented before the District Judge, therefore, there is no valid presentation unless it was made in the proper Court. The time of the appeal remained pending in the Court of the learned District Judge, it was no appeal, and it is deemed to have been duly filed on 21st June, 1974 when it was presented in the High Court. The appeal is, therefore, miserably barred by 534 days.
8. A time-barred appeal is entertainable if a good explanation is made out for condoning the delay under section 5, Limitation Act and the Court is satisfied that the appellants had sufficient cause for not preferring the appeal within the prescribed time. The ground mentioned, that another appeal by the opposite-party also remained pending before the learned District Judge and no objection was made against the appellant's appeal, is not a sufficient cause. The appellants should have themselves applied their mind to ascertain in which Court the appeal would, in law, be presented.
Ignorance of law is never an excuse, nor would an B acquiescence by the opposite party give jurisdiction to the Court which it did not possess. It was also not an excuse that the appellants were misled by the wrong advice of their counsel. This plea was not taken by them in their application for extension of time and even if it be, there is no authority for the view that a mistake of a legal adviser, however, gross and inexcusable, even if bona fide acted upon by the litigant, will entitle him to the protection of section 5, Limitation Act. If such an advice was actually given by the counsel, it was most negligent and based on want of reasonable skill. It is laid down in Food Stuff Supply v. Irfan Cotton Oil Mills and two others that mistaken advice by counsel is a good ground for extension if counsel does not act negligently, but the standard of care to be applied will depend on the particular circumstances of a case. In that case the counsel mistook the decree-amount to be Rs, 3,000 whereas the amount represented only an item of the decree and the actual decretal amount was Rs, 29,000 and the appeal was filed in the District Judge's Court instead of in the High Court, it was held that it was not possible to put forward any view of law on adoption of which the appeal could have been filed in the Court of the District Judge. The case was, therefore not considered fit one for condoning delay in preferring appeal in the High Court. A similar view has been taken in Allah Wasaya and another v. Muhammad Shakir where it was held that wrong advice of counsel tendered with due care and caution can no doubt be sufficient cause within the meaning of section 5 of the Limitation Act, but the negligent advice has never been and can never be a ground for extension of time. It was further observed that counsel's gross negligence cannot form a ground for extension of time under section 5 of the Limitation Act. Negligence of counsel is negligence of the party because he is the agent of the party. It is not enough, the party seeking indulgence of the Court in getting extension of time should explain delay of each day.
9. In the circumstances mentioned above the appellants have failed to show that their mistake in choosing the wrong Court was bona fide and without negligence. Therefore, there is no ground made out that period of delay in filing the appeal may be condoned. The appeal is sheerly barred by time.
10. It is contended by the learned counsel for the appellants that there was no irreparable loss to the respondent if temporary injunction is not granted. A claim has already been made in the suit for damages, meaning thereby, that loss can be calculated in terms of money. It is further urged that no temporary injunction under Order XXXIX, rule 2, C.P.C. Could be issued against the appellants when there was no prayer for perpetual injunction in the main suit. Another objection that a suit for perpetual injunction having already been pending between the same parties, another suit on the same facts was not maintainable under Order II, rule 2, C.P.C. These points could have been examined thoroughly if there was an appeal made to this Court in time. A time barred proceeding does not attract any consideration and the same cannot be discussed when the appeal suffers from an infirmity of being time-barred.
11. For the reasons given above the appeal is dismissed as out of limitation with no order as to costs.1 2