1. ' MUHAMMAD AFZAL ZULLAH, J.-This appeal through special leave from the order dated 13-6-1981 of Baluchistan Service Tribunal arises in the circumstances, which, to say the least are unfortunate ; because the appellant is not directly responsible for them. They are summarises in the order of remand passed by this Court on 8-9-1980. The relevant parts thereof are reproduced : "The appellant, a civil servant, was compulsorily retired from service with effect from 5-5-1969 under an order made by the Director, Excise and Taxation, Quetta Region. After exhausting the departmental remedies he filed a constitutional petition in the High Court of Sind and Baluchistan as it then was but the same was held to have abated in view of the promulgation of the Provincial Service Tribunals Act, and making the Baluchistan Service Tribunals Act, 1974, applicable to the cases like that of the appellant. The appellant filed a petition for leave to appeal against the decision wherein this Court while dismissing the petition on 18-1-1978 observed that "proper remedy for the petitioner was to institute an appeal before the Service Tribunal, as his writ petition could not be maintained after the Tribunal had been established in terms of the law, as envisaged under Article 212 of the Constitution.
2. ' The appellant approached the Service Tribunal alongwith an application for condonation of the delay explaining in detail the circumstances in which it had taken place. The Service Tribunal by its decision dated 12-4-1980 upheld the objection of the Assistant Advocate-General that the appeal was barred by time and there was no provision as was made in other service laws for applying sections 5 and 12 of the Limitation Act to condone the cases of delay. While delivering the judgment the Tribunal ordered that a copy of the judgment be sent to the Chief Secretary for information and the observation was that : ' A civil servant may suffer hardship as is the position in the present case, in view of the absence of such provisions as contained in section 7 of the Service Tribunal Act. It is, therefore, desirable that the Provincial Government may consider the incorporation of similar provisions as one finds in the Service Tribunals Act (section 7)."
3. When the appeal came up for hearing before us today the learned Advocate-General brought to or notice the consequential action taken by the Provincial Government. An Ordinance No, XII of 1980, the Baluchistan Service Tribunals (Amendment) Ordinance, 1980 had been enacted on 28-7- 1980 which comes into force at once and shall be deemed to have taken effect from 5th June, 1974.
4. Section 6-A has been added which is as follows "6-A. Limitation.-The provisions of sections 5 and 12 of the Limitation Act, 1908 (IX of 1908) shall apply to appeals under this Act."
5. ' In view of the provision made and the retrospective effect given to it the disability of the Service Tribunal to take into consideration and to extend the benefit where necessary of the provisions contained in sections 5 and 12 of the Limitation Act has been removed, and that has been done retrospectively. This will entitle the appellant to have his claim with regard to condo nation of delay reconsidered.
6. ' It is also necessary to note here that at an earlier stage when it was pointed out to the appellant that in the circumstances of the case he could file, the appeal under the new Service Laws, he had expressed the fear of the same having become time-barred because of his having sought remedy in the Supreme Court. His apprehension was removed in the following observation made in the order dated 18-1-1978 :- "As regards his apprehension that his appeal before the Tribunal had become time-barred by efflux of time, suffice it to say that it would be for the petitioner to satisfy the Tribunal that the time taken by him in pursuing his writ petition in the High Court, and his application for the grant of certificate of fitness under Article 183 of the Constitution, as well as in presenting the present petition for special leave to appeal was such as could be excluded from limitation on grounds permitted by the Limitation Act. We have no doubt that the Tribunal will pay full consideration to all the aspects of the matter for the purpose of deciding the question of condensation of delay which has taken place on the part of the petitioner in presenting his appeal before the Tribunal."
7. ' It is clear that although the Service Tribunal in its earlier decision dated 12-4-1980 had paid attention to the a fore quoted observations of this Court and for that reason had described cases like the present one as of hardship justifying amendment of the law for the application of section 5 of the Limitation Act to the appeals before it , unfortunately in the impugned order dated 13-6-1981.
8. This aspect was forgotten ; and instead, the case was described in the same circumstances as one of wilful avoidance to have recourse to the correct forum" and one of "pressing" the remedy in a "wrong forum". The learned members of the tribunal also it appears ignored that best for the view that section 5 of Limitation Act was not then applicable, their earlier decision on merits of request for condonation, was not against the appellant.
9. The legal question regarding application of section 5 of Limitation Act where section 14 thereof did not apply in terms is not difficult to understand in cases like the present one. No doubt it was held in Shah Muhammad v. Ghulam and another that section 14 of the Limitation Act nor section 5 thereof, could be attracted in that case ; which involved filing of an appeal under section 96 of the C. P. C. As also an application for setting aside an ex parte decree under Order IX, rule 13 of C. P. C.
10. But it cannot be said that section 5 of the Limitation Act did not apply because section 14 was not in terms applicable to a particular proceedings. The underlying principles would not ordinarily be excluded when considering a case under section 5 of the Limitation Act. In that context it was held1 in Abdul Ghani v. Ghulam Sarwar , that in proper cases the considerations mentioned in section 14 could be noted when applying section 5 as well. And although on the facts of that case differ in view was formed but the law was laid down as follows : "As observed by Sir George Rankin in Kunwar Rajendra Bahadur Singh v. Ral Rajeshwar Ball and others AIR 1937 P C 276 .. .. In applying section 5 of the Limitation Act) the analogy of section 14 (which applies only to suits) is an argument of considerable weight." Section 14 permits the exclusion of time only for proceedings "prosecuted in good faith", therefore, in order to make cut sufficient cause under section 5 an appellant may prove that he had acted in good faith in presenting his appeal in the wrong Court. Good faith has been defined in clause (7) of section 2 of the Limitation Act as ;" `good faith ; nothing shall be deemed to be done in good faith which is not done with due care and attention." Now if an appellant proves that he filed his appeal in the wrong Court despite due care and attention it means that the presentation of the appeal in the wrong Court was on account of circumstances beyond his control. No doubt, what such circumstances are must depend on the facts and circumstances of each case, and in Kunwar Rajendra Bahadur Singh's case. Sir George Rankin set aside the finding of the Chief Court that the appellant's Advocate had been very negligent in filing the appeal in the wrong Court because the facts relevant to the question of the Court in which the appeal was to be filed were very complicated.
11. Similarly, an appellant can bring his case under section 5 if he can show that there is some ambiguity in the law governing the forum in which the appeal is to be filed. Or, to take another example, an appellant can rely on section 5, if he can show that he was misguided by the practice of the Court or by an erroneous judgment of the Court."
12. ' A practical application of the foregoing principles is, also found in Akbar v. Sadiq and others and, the observations made at page 261 of Federation of Pakistan v. Muhammad Siddiq are not irrelevant in this behalf.
13. ' In this case it is important to note that this Court had dealt with the question of limitation thrice before the Tribunal passed the impugned order-twice at the leave stage. And once in the remand order. It was not even suggested therein that the effort of the appellant to seek remedy from this Court was mala fide. Had it been so the observations in the order dated 18-1-1978 would not have been made, nor the case would have been remanded. The Tribunal obviously misdirected itself to hold that when seeking leave to' appeal from the Supreme Court or when attempting to get certificate from the High Court to file such an appeal, the appellant was pressing his grievance in a "wrong forum willfully".
14. ' It is not difficult to imagine that if the tribunal would not have ignored the observations earlier referred to, with regard to it being a proper case for condensation of delay under section 5 of the Limitation Act, the result might have been different. The tribunal's failure to follow the same raises a question of general importance whether it could do so when the observation was its own or it was by the Supreme Court, in the same case ? The answer obviously is in the negative. We accordingly rectify the position. This appeal is allowed with costs. The impugned order is set aside, and the delay is condoned under section 5 of the Limitation Act. The case is remanded once again to the Tribunal for the decision of the service appeal, on merits. PLD 1970 SC 196 PLD 1977 SC 102 1972 SCMR 23 PLD 1981 SC 2492 3 4 1 2 3 4