' The dispute in this matter is a piece of land under Khata No, 81 Khatunis 139 and 140 situated in Monza Chagai which according to the appellant belonging to him were illegally occupied by the respondent and entry in the revenue record was also got entered fraudulently in their favour. The suit was filed in 1973 which was ultimately referred. To Qazi Dalbandin for decision under Baluchistan Civil Disputes (Shariat Application) Regulation, 1976 who dismissed the suit. On 3-9- 1979. Instead of filing an appeal against that judgment of the Qazi an application was made on 10- 1-1980 by the appellant before the Majlis-e-Shoora constituted under the said Regulation complaining that the Qazi was not attending to the case. On summoning the record from the Qazi Dalbanadin it was found that the suit bad been dismissed on 3-9.1979. The appellant ultimately filed appeal on 11-11-1980 and also an application for condonation of delay for one year one month and 20 days was also made. Accordingly to the averments made is the memo. Of appeal as well as the application for condonation it has been admitted by the appellant that an application for copies was made and copy of the judgment was in fact received/ obtained on 23-10-1980 and the papers were handed over to the Advocate for filing appeal but the appeal before the Majlis-e- Shoora was filed on 11-11-1980 without copy of the judgment appealed against. An office objection was recorded to the effect. That the appeal filed on 11-11-1980 against the judgment dated 3-9-1979 was barred by time. The learned Members of Majlis-e-Shoora, dismissed the appeal on 24-124981 on the ground that since the appeal was not accompanied by judgment and decree the appeal was not entertainable. Against this order of the Majlis-e-Shoora the appellant filed a second appeal on 24-6-1982.
2. The main grievance of the appellant was that the learned Qazi was not granted the copy of the judgment nor the same was supplied. On 18-6-1983 a rejoinder on behalf of the respondent was filed in this Court wherein it was contended that the appeal was not competent as value of the subject-matter of the suit is below Rs, 50,000. A copy of this rejoinder was supplied to the counsel for the appellant who replied on behalf of the appellant. In reply thereto the learned counsel for the appellant made an application on 19-6-1983 and prayed therein that the second appeal filed by him be converted into revision as "inadvertently and due to typing mistake the appellant and applicant has filed the appeal under section 100 instead of filing revision under section 115, C. P. C.
Before the prayer of the appellant for conversion of appeal into revision is considered it is necessary to point out that section 102 C. P. C. Was amended on 26-3-1980 by Ordinance No, 10 of 1980 published in Gazette of Extraordinary, Government of Pakistan and in clause (b) of section 102, C. P. C. For the word two thousands the word 50 thousand was substituted, and by virtue of section 3 of the Baluchistan Civil Disputes (Shariat Application) Regulation, 1976 under which the suit was being proceeded the provisions of Civil Procedure Code were made applicable to the proceedings taken under the Regulation. The proceedings under the Regulation are regulated/controlled by the provisions of the Code of Civil Procedure 1908 and since appeal is a proceeding under the Regulation and right of appeal is given thereunder it will have to be regulated by the provisions of the Code and the provisions of sections 100, 101 and 102, C. P. C. Will apply to the appeal filed under section 4(3) of the Regulation. The second appeal would, therefore, be competent only if the conditions laid down in section 102, C. P. C. Are fulfilled. Section 102 is reproduced below :- "102 No second appeal in certain cases.-No second appeal shall lie :-
(a) . . . .
(b) In any other suit, when the amount or value of the subject-matter of the original suit does not exceed fifty thousand rupees."
In the present case the valuation of the suit filed by the appellant was admittedly below rupees fifty thousand and, therefore, the appeal would be barred by section 102, C. P. C., I have perused the.
Memo. Of appeal filed in this1,4 Court and have come to the conclusion that the explanation offered by the appellant that in fact it was the revision which was filed and not the appeals is factually not correct. It has been said in the memorandum that it is :- "Appeal under section 100, C. P. C. Against the judgment and decree dated 3-9-1979 passed by Qazi Dalbandin and order and decree dated 24-12-1981 passed by Majlis-e-Shoora Quetta whereby judgment and deeree dated 3-9-1979 passed by Qazi Dalbandin has not been set aside by the Majlis-e-Shoora, contrary to facts law and equity With the prayer to set aside the same in the interest of justice."
' It is clear and admits of no typing mistake. Had it been so, the typing mistake could have been easily rectified when the draft was revised which the appellant's counsel was duty bound to do.
When confronted with this situation, the learned counsel frankely admitted before me and made a statement before me that he was not aware of amendment. This statement at the bar of the learned counsel for the appellant contradicts the stand taken by him in the application for conversion of the appeal into revision. Now there remains to be considered the prayer whether it can be allowed to be treated as a revision and in that connection the first question that arises is that whether this prayer is bona fide. The test of bona fide mistake is whether it was committed in spite of due care and attention. A mistake arising from negligence or which could have been averted has always been held not sufficient cause. As well be demonstrated later in this judgment, it is found that the conduct of the appellant and his counsel before the Majlis-eShoora as well as in this Court has been patently negligent. An Advocate who gives advice without reference to the law with regard to a matter of which he is ignorant cannot be said to be an act with due care and attention, and the neglighence of the counsel is the negligence of the party because he is the agent of the party. The learned counsel did not care to apprise himself of the latest position of law.
The amendment in section 102, C. P. C. Was made on 26th March, 1980 and the matter which he was handling and was to be filed in the High Court came to him in June, 1982. By this time a little care on his part would have avoided this situation in which the appellant handed himself and was thrown deliberately by his counsel. A normal standard of efficiency and knowledge of law is expected of an Advocate and it is his duty to know the state of law before drafting the pleading and thereafter to scrutinize the draft and see if any typing mistake has crept in which requires correction. The contention of the appellant as contained in ground (F) that the appeal filed before the Majlis-e-Shoora was in fact filed under section 24 of the Dastur-ul-Amal Diwani Kalat and the lower Court erroneously held that the appeal has been filed under Order XI, C. P. C., also exhibits a patent ignorance of the law. The suit relates to a place where Dastur-ul-Amal Diwani Kalat was never made applicable. The suit was being tried under the provisions of Baluchistan Civil Disputes (Shariat Application) Regulation, 1976 and section 3 whereof has made the provisions of Civil Procedure Code applicable in the proceedings under the Regulation. The state of Law, therefore, was very clear. The provisions of Order XLI, rule 1 were applicable and the appeal without the copy of the judgment and decree was not entertainable. It is significant that according to the averments contained in the application as well as in the memo of appeal which was accepted by the appellant the copy of the judgment of the Qazi was received by him yet it was not filed alongwith memo. Of appeal Besides the appeal before Majlis-e-Shoora was patently time-barred. It is the duty of the litigant to know the last date on which he can present his 8 appeal in Court and if through delay on his part it becomes necessary to ask the Court to exercise in his favour the powers contained in section 5 of the Limitation Act, the burden rests on him of adducing distinct proof of the sufficient cause on which he relies and as has been held in Attaullah Malik v. Custodian Evacuee Property (1) "the Courts have always been strict in demanding proof of sufficient-cause for every day which has expired after the ordinary period of limitation". The appellant before the Majlis-e-Shoora had conceded at least this much that he has received the copy on 23-10-1980, and had handed over the case to the Advocate but the appeal was in fact filed on 11-11-1980. In para. 2 of the application for condonation of delay it has been so said as would appear from the words used which are reproduced :- {{URDU TEXT}} ' There is no explanation from the counsel of the appellant nor any cogent reason shown in the application for condonation of delay as to why it was delayed after 23rd October, 1980. The respondents by the conduct of the appellant had acquired a valuable right which they cannot be deprived of.
3. The learned counsel when confronted with this situation made an attempt to argue that there are certain irregularities in the procedure before the trial Court but the grounds now urged before me have all the appearance of an afterthought. No such ground was urged before the Majlis-e- Shoora though the appeal was drafted and presented by the Advocate, nor it was mentioned in the memo of appeal. No such ground has even been take before this Court. The prayer that the appeal filed under section 100, C. P. C. C be treated as revision was made after long delay and that too when objection was taken on behalf of the respondent. I, therefore, hold that the application is not only very belated but lacks bona fide and in the circumstances of the case the applicant is not entitled to the indulgence prayed for. In the circumstances of the case second appeal is liable to be dismissed. The appeal filed before Majlis-e-Shoora was not properly filed in accordance with the provisiors of law and was rightly dismissed. Besides it was barred by time.
4. Section 115, C. P. C. Enables the High Court in a case in which no appeal lies to call for the record of any case if the Court by which the case was decided appears to have acted or had exercised its jurisdiction illegally or g with material irregularity and further enables it to pass such order in the easel as the. Court may think fit. It would, therefore, be observed that section applies to the jurisdiction alone and is not directed against a conclusion of law and fact, in which the question of jurisdiction is not involved. Jurisdiction under section 115, C. P. C. Is not lightly exercised. It is an extraordinary jurisdiction and should be used on appropriate occasion. The Court below has inherent jurisdiction to determine any point raised before it. Thus, whether an appeal is competent and whether it has been prepared in proper form and presented properly are all matters for the decision of an appellate Court. The impugned order of the Majlis-e-Shoora is in confirmity with Order XLI, rule 1, C. P. C. And it does not call for any interference. {{FOOT NOTE}}
(1) PLD 1964 SC 236 {{FOOT NOTE}} ' For the above reasons the appeal is dismissed being not maintainable and being barred by time and the conduct of the appellant and the way, in which the matter has been handed by the counsels 1. e. Negligently both before the Majlis-e-Shoora as well as in this Court do not deserve any indulgence. The application for conversion of appeal into revision is accordingly dismissed. In the circumstances of the case I leave the parties to bear their own costs.