' This petition is barred by 24 days. It arises out of an order of a learned Single Judge of the High Court passed on 29-5-1982. That order dismissed the appeal tiled by the-petitioner to challenge the order of the District Judge, Kotli, which affirmed the finding of the learned Sub-Judge, Kotli, which recorded that Raj Muhammad, respondent/pre-emptor herein, and prior right to purchase the suit land in the capacity of yakjadi of the vendor as well as a co-sharer in the suit land in preference to Muhammad Ibrahim, vendee-petitioner to this petition.
2. The petitioner seeks condonation of the delay on the grounds that he was ill-advised by his counsel at Kotli that the petition for leave to appeal could validly be filed within 90 days and, therefore, time spent from 5-7-1982 to 11-8-1982, which comes to 38 days, in obtaining copies of the judgments of the Sub-Judge and that of the District Judge, if excluded, brings the petition for leave to appeal within time. He also submits that he had to attend his ailing wife and, therefore, could not follow the cause within time.
3. It may be observed that delay in filing a petition under the Azad Jammu & Kashmir Supreme Court Rules, 1978 can be condoned, for sufficient cause. The words "sufficient cause", of course, have no precise definition. Sufficiency of cause for condonation of delay, however, varies from case to case. It would, therefore, require to be seen as to whether sufficient cause in this case exists for condonation of delay.
4. Mr. Muhammad Sharif Tariq, the learned counsel for the petitioner, as stated earlier, seeks condonation, inter alia, on the grounds :-
(i) that the learned counsel who appeared on behalf of the petitioner in the Court of first instance at Kotli ill-advised the petitioner that the copies of the judgments of the Sub-Judge and that of the District Judge were necessary for filing the petition for leave to appeal and, therefore, if the period from 5-7-1982 to 11-8.1982, spent in getting these copies, is to be condoned, this would bring the petition well within time; and
(ii) that the petitioner's wife was sick and her continuous treatment had created impediment for him to pursue the matter in right earnest.
5. To support his contention for condonation, the learned counsel has cited Evacuee District Trust Committee, Hyderabad v. Muhammad Ismail and 2 others (1), S. M. Sadiq v. Settlement Commissioner and others (2), Sardar Ismail Khan v. Sardar Bagga Khan (3) and Sayed Abad Ali Shah v. Ahmed All Qureshi and another (4).
6. As against this, Mr. Muhammad Yunus Surakhvi, the learned counsel for the respondents, submitted:-
(i) that wrong advice of the counsel hardly constitutes sufficient cause for condonation of delay; though there is even no proof in this case to hold so; and
(ii) that there is also no proof that the petitioner's wife was sick. It has also never been claimed, as now contended, by the petitioner that his counsel at Kotli had ever given him a wrong advice that the copies of the judgments of the Sub-Judge and that of the District Judge were necessarily required for a valid presentation of a petition for leave to appeal. Under section 12 of the Limitation Act as the copies of the judgments of the District Judge and that of the Sub-Judge were not required, the learned counsel maintained, time spent in getting the copies of these documents cannot be deducted from the requisite time to file a petition for leave to appeal. He further contended that there is no proof in the shape of affidavit even by the petitioner's counsel or by the petitioner himself that wrong advice was given.
7. After giving my considered thought to the arguments advanced at the bar, I am unable to persuade myself to condone the delay. My reasons are-Evacuee District Trust Committee, Hyderabad v. Muhammad Ismail and 2 others cited by Mr. Muhammad Sharif Tariq is not applicable to the facts of the present case. It lays down:- "Now, it seems the rule is well laid down that mistaken advice given by a legal practitioner may in the circumstances of a particular case give rise {{FOOT NOTE}}
(1) PLD 1978 Kar. 252 (2) 1974 SCM R 149
(3) PLD 1975 Azad J & K 131 (4) PLD 1976 IC.Ar. 104 {{FOOT NOTE}} to sufficient cause within the meaning of section 5 of the Limitation Act although such mistake must be made bona fide and not as a result of gross negligence. The principles contained in this rule may well serve as guidelines for exercise of discretion vesting in this Court under rule 4 of the High Court Rules referred to above. There can be no doubt that the question whether a Letters Patent Appeal was competent against the impugned judgment before us or a direct appeal lay to the Supreme Court, was an intricate question of law and was not free from doubt."
' Obviously, this case is distinguishable. In this case the appeal was filed before a wrong forum and as an intricate question was involved, condonation was desirable which was allowed.
' Similarly, S. M. Sadiq v. Settlement Commissioner and others hardly advances the case of the petitioner. It decides that :- "This petition is barred by 13 days, but, the learned counsel appearing in support of the petition, frankly concedes that the mistake was his, as he was under the impression that during the long vacation of the Supreme Court the time would not run. In view of the frank concession, we condone the delay and deal with the petition on merits."
' This case also is distinguishable inasmuch as the petition in this case was filed after the vacation under the wrong impression that during the vacation of the Supreme Court the time would not run.
I wonder how this case can be made applicable to the facts of the present case. Similarly, Sardar Ismail Khan v. Sardar Bagga Khan and Sayed Abad All Shah v. Ahmad Ali Qureshl and another, are distinguishable and have their own facts to speak.
8. It may be observed that the petitioner, as stated earlier, has not placed on record affidavit of the Advocate at Kotli to indicate that wrong advice to the effect that the period for filing a petition for leave to appeal against the judgment of the High Court is 90 days was given to him. Thus, there remains no ground to believe that some Advocate at Kotli had given wrong advice to the petitioner that the petition for leave to appeal can be filed within 90 days. Besides, ignorance of law has never been considered al valid ground for condonation of delay. On the issue Mr. Justice Dorabla Patel, J. (as he then was) in Sultan Jun Khan v. Islamic Republic of Pakistan and another (I) also opined that ignorance of law is no ground for condoning the delay.
9. The question regarding application of section 12 of the Limitation Act to an application for leave to appeal to His Majesty in Council also came for consideration before the Lahore High Court in case of Had Ram v. Prem Nath and others (2) and it was disposed of with the following observation :- "Where it is not necessary for the applicant to file a copy of the decree with the grounds of appeal or the application under section 12 has no application."
10. Similar question fell for consideration before Lahore High Court in the case Ghulam Haider and another v. Abdul Ghani others (3). The contention raised in that case was that section 12 of the Limitation Act did not apply to an application for leave to appeal to His Majesty in Council and, {{FOOT NOTE}} (1)1980 SCM R 964 (2) AIR 1935 Lab. 341
(3) PLD 1949 bah. 570 {{FOOT NOTE}} therefore, the petitioner was not entitled to the exclusion of the time which was spent in obtaining a copy of the judgment. Having noted this contention, their Lordships added: 'in our opinion this contention is well-founded'. Then they proceeded to draw a distinction between subsections (2) and (3) of section 12 of the Limitation Act and found that :- "The language of subsection (2) as it now stands then contrasted with subsection (3), clearly contemplates the exclusion from the scope of subsection (3) of the case of an application for leave to appeal."
11. Under Order XIII, rule 3 (ii) of the Azad Jammu & Kashmir Supreme Court Rules a petition for leave to appeal is to accompany the judgment or order sought to be appealed together with the grounds of appeal or application before the High Court. In the event a certificate under section 42
(11) (f) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, is required, the petition is also to accompany the order of the High Court refusing such a certificate. I have noted this rule only with the purpose that the judgments of the District Judge and that of the Sub-Judge are not at all required to accompany the petition for leave to appeal.
12. In view of the above, it requires no deep thought that the time spent! For obtaining a copy of the order which was not necessary for filing a petition for leave to appeal cannot be excluded in computing the period of limitation.
13. The upshot of the whole discussion is that I do not feel satisfied that explanation tendered for the delay is either genuine or convincing. The n petitioner has been negligent in not keeping himself abreast with the true - state of law. No sufficient cause thus is shown for condonation of delay.
Sufficient cause means the circumstances beyond the control of the party and I do not know of any case wherein this definition of sufficient cause has been rejected. Slight negligence, of course, can be condoned but not the gross one. E The Courts have always been strict in demanding proof of sufficient cause for everyday which had expired after the ordinary period of limitation.
14. It must be remembered that when a valuable right had accrued to the other side by the lapse of time, he cannot lightly be deprived of that right. Even if I believe, though there is no evidence to support it, that the petitioner acting on the advice of his counsel filed the petition believing it within time, this would hardly make any case of condonation. It has invariably been held that the Court must be satisfied that the advice by the counsel was given with due attention. On the point AIR 1930 Oudh'49 (2) it has been held .- "This is the view which we take. When it is established in the first place that a counsel has given advice with due care and attention but has nevertheless arrived at a mistaken conclusion, and that the appellant, misled by the advice, has in good faith filed an appeal beyond limitation, then when compliance has been made with all these conditions a Court is justified in admitting an appeal filed after limitation but not otherwise."
In view of the above, I bold that no sufficient cause has been made mis for condonation of delay and the petition being filed beyond time is hereby dismissed.
15. Even otherwise, the well-reasoned findings of the three Courts below to the effect that the respondent/pre-emptor has prior right of purchase in the capacity of an agnate of the vendor and co-sharer in the suit land, needs no interference as these findings are based on sound principles of appreciation of evidence in civil matters. In the result this petition for leave to appeal fails with costs.