' This appeal has been preferred against the judgment and decree, dated 30th April, 1974 (decree signed on 8th May, 1974) passed in F.C. Suit No, 150 of 1967, by the learned Senior Civil Judge, Nawabshah.
1. The appeal originally was filed in the Court of District Judge Nawabshah on 3rd June, 1974 to which on 8th July, 1974 Advocate for the respondent took objection to the effect that the said Court had no pecuniary jurisdiction as the value of the suit was Rs, 45,000 whereas appeals arising out of suits valued upto Rs,25,000 could alone be filed to the District Judge. On the objection thus raised the learned District Judge on 24th August, 1974 passed the following order:- "The learned counsel for the appellant concedes that the value of the suit being more than Rs,25,000 the appeal will lie in the High Court and not this Court.
Therefore, he wants the memo of appeal be returned to him for filing it in the Court having jurisdiction. The memo of appeal is, therefore, returned to the appellant for filing it in the Court having jurisdiction.'
Dated: 24-8-1974. (Sd.)
' District Judge, Nawabshah."
2. The appeal was returned on 24th August, 1974 and was presented in this Court on 26th August, 1974 alongwith an application (C.M.A. 1630/74) under sections 5 and 14 of the Limitation Act. The appeal was admitted to regular hearing by order passed on 31-1-1975 "subject to any objection that may be taken by the respondents".
3. The appeal came up for hearing today when the question arose if the delay in filing appeal in this Court may be condoned under the provisions of sections 5 and 14 of the Limitation Act.
' Relevant it would be to state here the facts briefly. The suit out of which this appeal arose was filed by the appellant/plaintiff on or about 14th September, 1967 in the Court of Civil Judge First Class Nawabshah in which inter alia decree for pre-emption was claimed in respect of House bearing City Survey No, B/1060 corresponding to Custodian No, 11B/59 situated in Market Road Nawabshah.
The said house admittedly was sold by the respondents Nos.2 to 4 to the respondent No,1 by a registered deed, dated 17-12-1966 for a consideration of Rs,45,000.
' In para. 8 of the plaint for purposes of valuation of the suit and jurisdiction it was stated as follows:- "8. That the value of the suit for the purpose of court-fee as well as jurisdiction is Rs, 45,000 whereupon court-fee stamps of Rs,1,800 have been paid."
4. By the judgment delivered on 30th April, 1974 (decree signed on 8th May, 1974) the suit after recording the evidence was dismissed on merits. For grant of the certified copies of said judgment and decree application was filed by the appellants on 11th May, 1974. The said copies were made ready and delivered to the appellants on 22-5-1974.
5. As already mentioned above the appeal in the first instance was filed in the Court of District Judge Nawabshah on 1st June, 1974 but on the appellant's own Advocate conceding that the suit was valued for more than Rs,25,000 and thus the appeal would lie in the High Court and not in the said Court, the memo of appeal was returned to the appellants on 24th August, 1974 for presentation before the Court having pecuniary jurisdiction. The appeal thereafter, was filed on 26th August, 1974 in this Court. By this time, however, the period of 90 days prescribed by Article 158 of the Limitation Act, 1908 had already expired (even after excluding the period spent in obtaining the copies of judgment and decree) and thus the appeal became barred by time
6. Mr. Maroof Ali Khan, Advocate for the appellant submitted, as also asserted by the appellants in the affidavit filed in support of the application made under sections 5 and 14 of the Limitation Act that though the value of the property which was subject-matter of the suit exceeded Rs, 25,000 and that the appeal ought to have been filed in the High Court instead of the Court of District Judge, Nawabshah but this was due to "a boda fide mistake purely" on the part of the then Advocate for the appellants.
' In order to appreciate the argument of the learned counsel, I may reproduce hereinbelow the relevant provisions of section 18 of the aforementioned Ordinance No, XII of 1962, which governed the filing of appeals against the judgments and decrees passed by Civil Judges in suits at the relevant time. The said section 18 then stood as follows:- "APPEALS FROM CIVIL JUDGES.--(1) Save as aforesaid, an appeal from a decree or order of a Civil Judge shall lie--
(a) to the High Court if the value of the original suit in which the decree or order was made exceeds twenty-five thousand rupees; and
(b) to the District Judge in any other case, (2)
(3).
' The learned counsel for the appellant was heard at length by me on the question if the delay in filing this appeal in the High Court which admittedly is barred by time by 8 days could be condoned and the period from the date of presenting the appeal on 3-6-1974 before the District Judge till it was returned for presentation before the Court of competent pecuniary jurisdiction could be treated as a "bona fide mistake" and a sufficient cause to extend the period prescribed by the law (Article 158) for filing appeals.
' A reference to the provisions of section 18 of the Ordinance of 1962, reproduced above, would show that the Advocate for the appellant when he filed the appeal in the Court of District Judge, Nawabshah had not taken due care to acquaint himself with the relevant provisions of the law as to venue where the appeal arising out of suit valued at Rs, 45,000 should have been filed. It is obvious that had the counsel for the appellant even cared to look at section 18 of the Ordinance of 1962 the only conclusion he could have arrived at would have been that the appeal was to be filed in the High Court and that the District Judge had no pecuniary jurisdiction. Negligence and gross lack of care on the part of the counsel for the appellants in choosing to file the appeal in the wrong Court in the circumstances could not be described as a bona fide mistake on the part of the Advocate. Thus the period spent in prosecuting the appeal before the District Judge from 3rd June, 1974, the date of presentation of appeal, till 24th August, 1974, when the memo of appeal was returned by the District Judge for presentation before the Court of the competent pecuniary jurisdiction, on the appellant's own Advocate conceding that said Court had no jurisdiction to entertain the appeal, cannot be described as prosecuting the appeal with due diligence or in good faith in a Court without jurisdiction. The view thus taken by me is governed by the principle authoritatively laid down by the honourable Supreme Court of Pakistan in the case of Ch. Muhammad Sharif v. Muhammad Ali Khan and others 1975 SCMR 259. In the cited case the period was sought to be excluded under section 14 of the Limitation Act on the plea that the appeal was filed by the appellant's counsel in the District Court due to misconception on his part with regard to venue and after it was returned the same was filed in the High Court immediately on discovery of the mistake. The Hon'ble Supreme Court refused to condone the delay and held:- ' ----that this is a clear case in which the learned Advocate showed gross lack of care and his failure in such a case to acquaint himself with the relevant provision of law relating to jurisdiction of the Courts amounted to negligence on his part."
' Same principle was also laid down in the case of Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102 wherein the honourable Supreme. Court refused to condone the delay and exclude the period during which the appeal was pending in District Court but was returned for presentation in proper Court of the pecuniary jurisdiction.
8. After considering the facts case I am of the firm view that appellants in filing the appeal in explicit provisions of section 18 of the Ordinance of 1962 cannot be described as thing done in good faith or proceeding prosecuted with due diligence.
9. For the reasons discussed above I am of the opinion that the appellants have failed to make out a case for extension exclusion of time either under section 5 or section 14 of the Limitation Act. Thus the appeal which admittedly when presented in this Court was beyond the period prescribed by law for filing of appeals being barred by time, is dismissed as such but with no order as to costs.
' The above are the reasons for the short order passed on 4th August, 1985 dismissing the appeal.