1. SHAFIUR RAHMAN, J.-Leave to appeal was granted to Mr. Khalid Saigol the appellant, to examine whether on the facts and circumstances A shown, the appellant was entitled to the condonation of delay in the filing of the appeal before the Sind High Court.
2. The facts necessary for the disposal of this appeal are that Baluchistan Textile Mills Limited was being installed in the year 1970 or near about. The appellant was the promoter and the sponsoring Director of the said Company. The plaintiff-respondents National Investment Trust Limited (N. I. T.) entered into an agreement dated 9th June, 1970 with the appellant personally for the purchase of two lacs shares of Rs, 10 each of the aforesaid mill on certain conditions one of which was as re- produced hereunder- "(1) . .
(2) If desired by N. I. T. Ltd., the Sponsoring Directors will purchase these shares at par after three years. The Sponsoring Directors will deposit with N. I. T. Ltd., shares of a nominal value of Rs, 5 lacs of Messrs Baluchistan Textile Mills Ltd., and in case the Sponsoring Directors do not purchase the aforesaid shares of Rs, 20 lacs at par the shares so deposited will stand forfeited by N. I. T. Ltd."
3. ' On the 5th of July, 1973 the plaintiff-respondent sent by a registered acknowledgment due a notice to the appellant enforcing this condition and requesting him to purchase the said shares and pay a sum of Rs, 20 lacs to the National Bank of Pakistan on or before 14th of July, 1973. Another letter was addressed to the appellant on 30th of July, 1973 this time also, registered acknowledgment due, asking him to pay a sum of Rs 20 lacs within a week failing which proper legal proceedings were to be adopted. By an endorsement, the Regional Manager, N. I. T. Limited was requested to contact Mr. Khalid personally and arrange for the purchase of the shares. A formal notice by the Advocates of the plaintiff-respondent was addressed to the appellant on 2nd of September, 1975 and it was also sent by registered A. D. Finally, a civil suit seeking recovery of Rs, 26 lacs (repurchase price Rs, 20 lacs plus Rs, 6 lacs as interest up to date of suit) and interest at the rate of 13 per cent till the date of recovery was filed by the plaintiff-respondents on the 15th of June, 1967. Notices were sent to the appellant by registered post and through the District Judge. The acknowledgment card of the notice sent by registered post was received on which the Court assumed service of the appellant and proceeded ex parte and finally passed an ex parte decree on 20th of May, 1977 for the sum claimed and the interest and the costs.
4. ' In execution of the ex parte decree, attachment orders of the immovable property of the appellant were issued at Lahore whereupon on 15-12-1981 an application (C. M. A. No, 4677/81) was filed under Order IX, rule 13, C. P. C. The ex parte decree was challenged on the ground that a fraud had been practised by the plaintiff-respondents for they had purposely sued the appellant on a wrong and incomplete address. The address of the registered office of Baluchistan Textile Mills had in the year 1970 shifted from 65-Shahrah Quaid-i-Azam, Lahore to 15-B, Davis Road, Lahore. It was also contended that the Court at Karachi had no territorial jurisdiction over the matter, that liquidation proceedings in respect of Baluchistan Taxtile Mills had started; that the acknowledgment card did not bear the signature of the appellant or his authorised agent; that he was purposely kept in the dark about the proceedings and that he was personally not liable for the sum claimed on the basis of contract dated 9-6-1976. An application was also filed under section 5 of the Limitation Act explaining the delay that had taken place in moving for setting aside of the ex parte decree.
5. ' These applications were contested by the plaintiff-respondents. The learned Judge in Chambers held that the address of the appellant was correctly shown as appearing in the contract and the notices and that due service had taken place in terms of rule 21-A of the Sind High Court Rules. The learned Judge in the Chambers dismissed the application on 20-4-1982.
6. ' It was on the 27th of May, 1982 that an appeal was filed in the High Court. The period of limitation available for filing such an appeal under Article 151 of the Limitation Act was 20 days. The copy of the order under appeal was applied for on 25-5-1982 and obtained the same day. Along with the memo, of appeal was filed application under section 5 of the Limitation Act in which it was stated that Mr. Ijaz Ali Subzwari the counsel for the appellant had obtained a copy of the order under appeal before the High Court on 27th of April, 1982 but he did not inform the client about the dismissal of the application to set aside the ex parte decree. It was at a belated stage that such an information was received ; a new counsel was engaged and that the delay in the circumstances was not intentional. A more detailed affidavit of the new counsel (Mr. Aftab Gui) was filed a year after i,e, on 14th of May, 1983 wherein the explanation offered was as follows- "That the said applications were dismissed on 20-4-1982. However, since certain differences, in the meanwhile, developed between the appellant and Mr. Sabzwari (which formed the subject-matter of a separate affidavit by the appellant), the said Mr. Sabzwari did not inform the appellant about the dismissal of these applications.
7. ' That subsequently the appellant came to know about the dismissal order and immediately requested me to file an appeal forthwith.
8. ' That I enquired from Mr. Sabzwari as to the last date for filing the appeal and was told that the period of limitation would expire on 27-5-1982. On the basis of said information I proceeded to prepare the appeal and filed the same prior to the said date i,e, on 26-5-1982.
9. ' That however, when I came to file the appeal I discovered that the period of limitation had already expired. I accordingly along with the appeal filed an application for condonation of delay under section 5 of the Limitation Act.
10. ' That a perusal of the above facts would reveal that the appellant throughout acted bona fide and with due diligence and cannot be blamed in any manner whatsoever for the delay in filing the appeal. Documentary evidence exists which clearly establishes that the appellant was bona fide under the belief that the last date for filing the appeal was 27-5-1982. This can be seen by a perusal of these applications for stay filed by the appellant in the Court of Shaukat Ali Khan, Civil Judge, Lahore on 13-5-1982. In para. 5 of this affidavit it has been clearly stated that the appellant had instructed his new counsel, (I myself) to file an appeal against the order of the learned Single Judge. It is further stated therein that the period of limitation for filing of the appeal would expire on 27-5-1982 and that the appeal would be filed prior to the said date. (Thus copies of the said stay application and affidavit are attached herewith as Annexures 'A & B' respectively)."
11. ' The Appeal Bench of the Sind High Court came to the conclusion ..Hat delay "at least . From 13-5- 1982 to 20-5-1982 has remained unexplained satisfactorily". The reasoning given by which this conclusion was reached. Was as follows - "The only explanation given by Mr. Aftab Gul for not filing the appeal immediately is that he enquired from Mr. Sabzwari as to the last date for filing the appeal and he was told that the period of limitation would expire on 27-5-1982, but since the appellant and Mr. Sabzwari were not, as alleged by the appellant, on good terms, there was no reason to enquire from Mr. Sabzwari as to the last date of filing the appeal and further there was no reason to believe his statement, if he made such statement without verifying the same by inspection of the record in view of the dispute between him and the appellant, if the statement of the appellant in this regard is true. Then we fail to understand how Mr. Sabzwari could make such a statement and how Mr. Aftab Gul could accept the same even if any of them could taiie 27-3-1982, as the date from which the time started running, as the period of limitation for present appeal is 20 days and not 30 days. In our view this is a case of gross negligence. In any case, it was initially appellant's duty to find out the date of passing of the order and his negligence cannot be condoned for he has not acted with due care and attention and he therefore, lacks good faith."
12. ' The lntra-Court Appeal was held to be time-barred and the condonation of the delay sought was not allowed. Hence the appeal was dismissed as time-barred.
13. ' Mr. Khalid Anwer, the learned counsel for the appellant has taken us through the entire facts of the case. He has emphasized that the appellant was a victim of fraud committed in the first place by the plaintiff-respondents in sueing him on a wrong address which was incomplete as the parentage of the appellant was expressed to be unknown. It was within the knowledge of the plaintiffs due to their . Close involvement particularly of Mr. Shamshad Nabi as Director of the Baluchistan Textile Mills that the registered office of the Mills had shifted from The Mall Lahore to Davis Road, Lahore. Another fraud, and a serious one for that matter, was committed by Mr. Ijaz Ali Sabzwari, the counsel of the appellant himself pursuing the application under Order IX, rule 13, C. P.
14. C. For various reasons personal as well as professional Mr. Sabzwari had not only mishandled but also victimised the appellant for the woes of his father-in-law against whom the appellant had already got a case registered. In such a situation, according to the learned counsel for the appellant, there was ample justification for condonation of the delay and the fault of the counsel should not have been visited with such a serious penalty on the client. He has relied on Allah Wadhaya v. Haft Muhammad Ramzan (1), Shivrattan G. Mohatta v. Muhamnadi Steamship Co. Ltd.
15. (2), Allandino v. Fakir Muhammad (3) and Nazar Muhammad v . Mst. Shahzada Begum (4), to substantiate his points.
16. ' Mr. Akhtar Mahmood, the learned counsel for the respondent, has on the other band contended that the address of the appellant as registered with the plaintiff and also as appearing from all the correspondence exchanged between them was that of 65-Shahrah-i-Quaid-i-Azam. If the registered office had shifted the plaintiff was kept uninformed about it and otherwise too had no knowledge of the address at which the appellant wanted to be served. Besides, the service of summonses was shown to the satisfaction of the trial Court, to have taken place as the acknowledgment card was duly received signed on behalf of and for the appellant. The merits apart, the appellant has, according to the learned counsel for the plaintiff failed before the appeal Bench on the ground of limitation and that question alone is open to examination in view of the order of this Court granting leave to appeal. So far the question of limitation is concerned, according to the learned counsel,
(1) AIR 1934 Lah. 986 (2) PLD 1965 SC 669
(3) PLD 1969 $ C 582 (4) PLD 1974 SC 22 the explanation given by the appellant stands negatived by the very recital of facts and events and the contents of the affidavit of the appellant and his counsel at the relevant stages. We have examined these contentions. The application filed by the appellant for getting the ex parte decree set aside was dismissed by the learned Judge in Chambers on 20-4-1982. In the application dated 13-5-1982 under section 151 filed in the Court of Mr. Shaukat Ali Khan, Civil Judge, and subscribed to by the appellant and his counsel Mr. Afta B Gul, the date of knowledge of this order was not disclosed but what was disclosed was as follows- "That unfortunately the petitioner has developed some differences with his counsel Mr. Ejaz Ali Sabzwari, as a result of which the said counsel did not keep him informed about the fate of his application in the Sind High Court.
17. ' That now the petitioner has instructed his new counsel to file an Intra Court Appeal against the order dated 20-4-1982 of the Sind High Court. The limitation for the filing of this appeal will run out on 27-5-1981. The appeal shall be filed before the Sind High Court before this date."
18. Another application under section 5 of the Limitation Act was filed on 25-5-1982 and even in this the exact date of knowledge was not disclosed Instead what was stated was as follows- "That having come to know at a belated stage about the dismissal of his application to set aside the ex parte decree, the appellant engaged a new counsel and has filed the titled appeal today. He has applied to the copying branch for the grant of a certified copy of the impugned order today.
19. ' That the delay in filing the appeal has not been intentional and is the result of the ignorance of the appellant."
20. ' Another affidavit sworn on 17-5-1982 was filed in the High Court wherein the appellant disclosed at some length the nature and extent of his differences with the earlier counsel but even there did not mention the exact date of his knowledge of ex parte decree. What was stated therein was follows- "That unfortunately certain differences developed between Mr. Sabzwari and the appellant. Mr. Sabzwari had introduced one Mr. Malik Mukhtar to the appellant in connection with a business deal.
21. The said Mr. Malik Mukhtar cheated the appellant and the appellant against the wishes of Mr. Sabzwari lodged an F. I. R. Against Mr. Malik Mukhtar on 19th February, 1982. Mr. Malik Mukhtar, it subsequently came to the knowledge of the appellant was the father-in-law of Mr. Sabzwari. The consequence of the above happenings was that Mr. Sabzwari became hostile and inimical to the appellant. Accordingly, although the appellant's application was dismissed on 20th April, 1982, by a learned Singe Judge of this Honourable Court he deliberately did not inform the appellant about the said dismissal. In the meanwhile Mr. Malik Mukhtar was arrested on 9th May, 1982 and case No, 45 of 1982 is still pending against him in the Court of Mr. Ashiq Hussain Butt, Ist Class. Magistrate, Lahore Cantonment.
22. ' That in the meanwhile Mr. Sabzwari started threatening the appellant and ultimately the appellant was led to file an F. I. R. Against M. Sabzwari on 29th May, 1982. Mr. Sabzwari was challaned and his case is pending in the Court of Mr. Sardar Sher Afgan Magistrate.
23. ' That in the above circumstances the appellant engaged a new counsel Mr. Aftab Gul who applied on 13th May, 1982 to the Court executing the decree passed by this Honourable Court for a stay.
24. ' A true copy of the said application and supporting affidavit are being attached herewith marked F & G.
25. ' An affidavit sworn in by Mr. Aftab Gul, Advocate, on 24-5-1983 contained the recitals which have alread been reproduced.
26. In the absence of the specific date disclosed by the appellant or his counsel the appeal Bench of the High Court was justified in assuming the date of knowledge of the appellant and also of his counsel Mr. Aftab Gul on 13-5-1982. Their knowledge on their own showing was that the order of the High Court was passed on 20-4-1982. Again, on their own showing their counsel Mr. Sabzwari, had let them down by not informing them promptly. There is no suggestion in the applications that a bona fide mistake in computing the period of limitation was committed or there was any misapprehension about the period of limitation. What was said was that Mr. Sabzwari told them that the limitation expired on 27-5-1982. This was the same Mr. Sabzwari about whose conduct of the case and dealings with the affairs; the appellant had no more confidence on 13-5-1982 and substituted him by Mr. Aftab Gul. The only explanation on record appearing for delay is that Mr. Sabzwari misled them about the period of limitation. That would have been the case if Mr. Sabzwari were to the knowledge of the appellant and Mr. Aftab Gul a dependable person. Further, if Mr. Aftab Gul had sworn that he himself in computing the period of limitation committed a bona fide mistake some indulgence could be shown. But the case as presented discloses no ground for exercise of discretion in favour of the appellant.
27. ' The decisions relied upon by the learned counsel for the appellant are not of much assistance to him for facts clearly distinguish them. In the case of Allah Wadhaya there was a proved deliberate fraud on the part of counsel's clerk in filing the appeal, the client doing all that was within its power.
28. In the case before us the Courts are concerned with no fraud after 13-5-1982 but only unexplained lethargy. In the case. Of Shivrattan G. Mohatta, the 1st May, 1957, on which date the suit was dismissed in default, had been declared as Eid holiday but the Court remained open because the moon was not sighted on the previous evening. This by itself was held to constitute sufficient cause.
29. Besides, a counsel had put in appearance to ask for adjournment as the main counsel had gone abroad for the treatment of his failing eyesight. In the case of Allah Dino the order was passed without notice to the party (not the case before us) and limitation was held to start from the date of knowledge. In Nazar Muhammad's case bona fide mistaken advice given by a counsel was held to be sufficient cause. In the case before us we cannot hold an responsible for giving bona fide a mistaken advice on point of limitation. None has claimed it.
30. ' In the case of Muhammad Nawaz v. Mst. Sakina (1), this Court held as follows- "Even if the above explanation is to be taken at its face value it would not constitute a sufficient cause for the condonation of long delay that has taken place in the instant case. The initial obligation was of the petitioners to enquire about the decision in their appeal, or to arrange with their counsel to inform them about the decision if it is announced in their absence. Even if it be assumed that their counsel neglected to inform them that per se would not be a sufficient ground for condonation of delay, when a valuable right has accrued to the respondents Nos. 1 to 3. We are not satisfied that the petitioners were diligent or took due care in the matter."
31. ' In the case of Muhammad Hussain v. Settlement & Rehabilitation Commissioner (2) the following observation was made- "In civil matters a valuable right accrues to the other side, by lapse of time and it is necessary that each day's delay should be satisfactorily explained. This the petitioner has clearly failed to do in the present case."
32. ' In Mst. Mahmooda Begum v. Muhammad Ishaq (3), gross ignorance of the counsel was held not entitled to be treated as ill advice.
33. ' We find from a survey of facts and law that the decision under appeal is sound and unexceptionable. This appeal is dismissed with costs.
(1) 1974 SCM R 223 (2) 1975 SCM R 304
(3) 1983 S CMR 890