1. ABDUL HAMID KHAN (MEMBER).--This is an appeal filed by Gulzar Muhammad, ex-Patwari, Circle Nangal Buchar, Tehsil Ferozewala, District Sheikhupura against the order dated 23-11-1986 of the Commissioner, Lahore Division dismissing his appeal and subsequent order dated 17-3-1987 dismissing his review petition being incompetent.
2. When the 'appeal came up for pre-admission hearing, the Tribunal directed that notice of application under section 5 of the Limitation Act be issued to the respondent. Respondent No,2 i.c. the Commissioner, Lahore Division hile filing his objections observed that the appeal was time- barred and that the appellant had neither explained the delay nor had made any prayer for its condonation. On the next date of hearing the counsel for the appellant indicated his intention to put in an application under sections 5 and 14 of the Limitation Act for condonation of delay which he eventually filed wherein he tried to explain that the petitioner had filed the review petition with the Commissioner under a bona fide mistake for relief which was not within the jurisdiction of that Court. He, therefore, prayed that the delay caused in pursuing the review petition at a wrong forum, which was not intentional or mala fide, may be condoned.
3. Before a person could claim the benefit of section 5 ibid he must first prove that he had acted in good faith in instituting the earlier proceedings and that the error committed by him was occasioned in spite of the due care and attention having been devoted by him. The mistake whether of fact or law has to be bona fide which means that it must have been honest and made in good faith notwithstanding due care and attention. Thus the courts would show indulgence only if the error is one which! might be committed by a reasonable and prudent man exercising due diligence and caution and having regard to the fact the immediately after a plaint was returned it was presented to the proper court on the same day or within a reasonable time as also the fact that the plaint as originally filed was within time.
4. The learned counsel for the appellant has cited and relied cases of Ijaz Muhammad Abbasi v. Allied Bank of Pakistan 1985 PLC 821, Asif Ali Khan v. M.D. WAPDA 1985 PLC (C.S.) 415 and Fiaz Ahmad v.
5. WAPDA 1985 PLC (C.S) 393 in his favour. These, however, do not help him in any way as the attending circumstances in these cases were materially different from those of the appeal before this Tribunal inasmuch as at the relevant time, there was an element of uncertainty as to which forum was competent until it was finally settled by the Supreme Court as a result of the case of F.U.
6. Malik v. WAPDA 1983 SCMR 663.
7. In the instant case the appeal before the Commissioner was dismissed on 23-11-1986 against which the petitioner filed a review petition with the Commissioner on 22-12-1986 which too was dismissed on 17-3-1987 as being incompetent. The appellant filed this appeal before the Tribunal on 16-4-1987 which was not accompanied by any application/affidavit for condonation of delay. It was only when the court took notice of it and respondent No,2 objected to it that the appellant filed an application/affidavit under sections 5 and 14 of the Limitation Act.
8. The above chronology makes it abundantly evident that the element of due care and attention is conspicuous by its absence in the aforesaid proceedings. The appellant filed the review petition with the Commissioner as also the appeal before this Tribunal on the last day of the 'limitation period'. The lack of due care and attention is all the more manifest in the matter of the filing of the appeal. The mistake made by him would have been covered by the Limitation Act if it was bona fide. Had he, immediately after his review petition was dismissed by the Commissioner Lahore Division, shown diligence and caution and filed the instant appeal the same day or within a reasonable time, say within a week, he could have claimed that he had acted with due care and attention. On the contrary, he allowed matters to drag on until only a day was left before the 'limitation period' expired. This simply demonstrates gross negligence and want of due diligence on the part of the petitioner.
9. An interesting aspect of the case is that it was the learned counsel for the appellant who had also filed the review petition before the Commissioner. However, since wrong advice of the counsel has not been pleaded and no affidavit has been filed on his behalf before the Tribunal, we do not propose to decide the issue on this account.
10. ' To condone the delay in such circumstances would amount to placing premium on demonstrated negligence and visible lack of due care and attention on the part of the appellant.
11. Accordingly, the appeal is dismissed as barred by limitation.