1. ' The appellant filed Suit No,453 of 1988 in the Court of IInd Senior Civil Judge Karachi West praying for parmanent injunction and recovery of Rs,70,000. It was alleged that he is a tenant in respect of the disputed property which respondent No,1 under an agreement dated 5-12-1987 has agreed to sell to him and he has paid Rs,50,000 as part payment of the sale consideration. In breach of the agreement dated 25-1-1988 respondent No,1 has agreed to sell the same house to respondent No,2. The appellant claimed damages of Rs,20,000 recovery of Rs,50,000 and injunction restraining the respondent No,1 from selling the disputed house and giving effect to the agreement dated 25- 1-1988. Respondent No,1 filed an application under Order VII, Rule 11, C.P.C. And the learned trial Court rejected the plaint. The respondent had pleaded that the appellant has no cause of action. Prior to filing Suit 453/1988 the appellant had filed Suit No,101/88 against the respondents on 25-1-1988. In this suit he had alleged that respondent No,1 had agreed to sell the disputed house to someone else and he being a tenant desired to purchase it and therefore declaration may be granted that first preference for purchasing the property should be given to the appellant and injunction may be granted against the respondents. This suit was withdrawn. It is significant to note that although the agreement to sell referred in the subsequent suit, from which this appeal arises, is alleged to have been made on 5-12-1987, no reference to this agreement was made in Suit No, 101/1988.
2. ' After the plaint was rejected the appellant filed an appeal before the District and Sessions Judge, Karachi. After notice was served, respondent No,1 filed his counter-affidavit on 24-9-1988 raising objection to the jurisdiction of the Court. On the same date an application under Order XXXIX, Rule 4 was tiled objecting to the pecuniary jurisdiction of the Court. In the counter-affidavit filed by respondent No,1 similar objections were raised. The appellant filed its counter affidavit to the application under Order XXXIX, Rule 4, C.P.C. But did not reply to this objection. On 31-12-1988 Mr. Amir Ahmed Khan Advocate filed his power on behalf of the appellant but no action was taken and finally the memo of appeal was returned on 12-9-1989 as the District Judge could not entertain it for lack of -- pecuniary jurisdiction. On 10-10-1989 the appeal was presented in the High Court.
3. While admitting the appeal for regular hearing the question of limitation was kept open. The appellant has also filed an application under Sections 5 and 14 of the Limitation Act for condoning the delay in filing the appeal.
4. ' The averments made in the appellant's affidavit are that the appeal was filed before the learned District judge who admitted the same as within time and within jurisdiction of the Court and transferred it to the Ist Additional District Judge, Karachi (West). It has been stated that it was a bona fide mistake for which the appellant should not be penalised and the same was discovered at the time of final arguments. The facts stated in the affidavit hardly meet the requirement of law for condoning the delay. It does not explain the reason, mistake of confusion due to which the appeal was presented before the District Judge. From the affidavit it is clear that the appeal could not be entertained or filed before the District Judge but the reason why it was filed and who was the person responsible for it has not been stated or explained. From the affidavit it is clear that there was gross negligence on the part of the Advocate who had filed this appeal before the District Judge. In spite of the objections raised at the earliest opportunity, the appeal was prosecuted till such time an order was passed by the learned Appellate Court.
5. ' Mr. Amir Ahmed Khan the learned counsel for the appellant has referred to the following authorities: PLD 1983 SC 262, PLD 1983 SC 385, PLD 1974 SC 2, 1987 CLC 2018, PLD 1985 Quetta 74, 1986 CLC 126 and 1987 CLC 1307.
6. ' On the other hand Mr. Javed Raza the learned counsel for the respondent relied on PLD 1977 SC 102, PLD 1983 SC 385, 1985 SCMR 1003 and 1989 SCMR 1489. The law on the point is well-settled and the consistent view from the case of Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102 upto the case of Manzoor Hussain and two others v. Muhammad Ali and others 1989 SCMR 1489 is very clear. In cases where the appeal has been filed in a wrong forum delay can be condoned if it is established that there was confusion about the law or that the Tribunals dealing with the matters were confused due to uncertainty of law or a bona fide mistake on the part of the Advocate. The observations of the Supreme court are firm on the point that in cases of gross negligence of the Advocate delay cannot be condoned. In this regard the observation of the Supreme Court in Manzoor Hussain's case is reproduced as follows:-- "On the question of limitation the High Court has taken the view that the conduct of the petitioners was not bona fide and to say the least about the facts and circumstances of the case the learned counsel who advised them to file appeal in the District Court, also did not act in such a manner so as to either exclude the delay under section 14 of the Limitation Act or to condone the same under section 5 thereof. The reasoning of the High Court, in the facts and circumstances of this case, in this behalf is unexceptionable. The appeal, therefore, has rightly been dismissed as time-barred."
7. ' The question whether the admission of appeal by the District Judge without raising any objection and granting order of status quo and issuing notice to the respondent could be treated as a ground for condoning the delay. Such question was raised in Abdul Ghani's case and was repelled in the following manner: `In order to overcome these self-induced difficulties the petitioner has tried to throw the blame on the District Court and on the respondent's Advocate. Thus, for example, he has pleaded in his petition that it was the act of the District Court which contributed towards expiry of limitation for filing appeal in the High Court." We were astonished by this plea and even more by the fact that it was pressed because it is not Mr. Bilal's case that the petitioner was an infant or a lunatic, whose interests the Court might have been under some duty to protect. But, according to Mr. Bilal, the petitioner had been misguided by the District Court because after admission the appeal had been transferred from the Court of the District Judge, Multan to that of an Additional District Judge, Multan, therefore, the principle actus curiae nemonim gravabit was attracted. The argument is fallacious because the transfer from the Court of the District Judge to that of an Additional District Judge was by an administrative order and because this transfer was after the petitioner had deliberately filed his appeal in the wrong Court. And, in any case, the attempt to invoke the principle actus curiae nemonim gravilisit assumes that the Court was under an obligation to advise the appellant how to prosecute his remedies against the respondent, we regret to say that this assumption is against reason. Mr. Bilal then pointed out that the District Judge had granted an interim injunction to the petitioner. But, in the first place, this was after the presentation of the appeal. Secondly as the interim order does not refer to the question of the valuation of the appeal, in the circumstances, we are satisfied that the petitioner had not drawn the attention of the District Judge to the fact that he had valued his claim in the trial Court at a sum which far exceeded Rs,25,000. No doubt, on a perusal of the memorandum of appeal, if the facts had been correctly stated, the District Judge would have realised that the appeal was beyond the pecuniary jurisdiction of this Court. This would also have been apparent from a casual perusal of the judgment under appeal, therefore, it is obvious that the learned District Judge granted an injunction in a most reckless manner, and the grant of injunction in this manner cannot but lead to the increase of frivolous litigation. Be that as it may, it was the respondent who was aggrieved by the injunction obtained by the petitioner, and it does not lie in the mouth of the petitioner to complain of the fact he had successfully obtained an illegal order from the Court."
8. ' The appellant had thus failed to make out a case for condoning the delay in filing the appeal. The appeal is dismissed.