' KHAWAJA MUHAMMAD SAEED, J.---The present appeal has been filed against the judgment and decree passed by Sub-Judge Mirpur on January 23, 1986.
2. Necessary facts giving rise to the present controversy briefly stated are that the respondent- Bank filed a suit against the appellants for recovery of Rs,18,699.66 in the Court of Sub-Judge Mirpur on December 29, 1979. In this suit written statement was filed by the defendant-appellants on July 21, 1981. The trial Court in the light of the respective pleadings of the patties framed as many as 3 issues including one for relief; vide order passed on November 26, 1981. The parties led their evidence for and against these issues and ultimately, vide judgment under appeal, the suit of the plaintiff-respondent (Bank) was decreed.
3. The defendant-appellants through their Counsel brought an application for copies of the judgment and decree of the trial Court on January 25, 1986. The copies were delivered to them on February 23, 1986. Later on, the judgment of the trial Court was assailed in appeal before the learned District Judge Mirpur on February 23, 1986. Subsequently, on realising that in view of the provisions of Courts and Laws Code Act, the learned District Judge was not legally competent to entertain the said appeal as the subject-matter of the suit was more than Rs,10,000. The learned Counsel for the appellants filed an application for the return of the appeal to be presented in the High Court. The learned District Judge allowed the said application and the appeal was ordered to be returned alongwith the relevant papers to the appellant for filing the same in the proper Court, vide order, dated April 7, 1987. The appeal thus returned, was presented in the High Court on the same day.
' 3-A. We have heard the learned Counsel for the parties and have also gone through the record of the case carefully.
4. A preliminary objection was raised by the learned Counsel representing the plaintiff-respondent
(Bank) to the effect that the appeal filed in the High Court is barred by limitation and that the appellants are not entitled to get the benefit of the provisions of Sections 5 and 14 of the Limitation Act. In support of his contention he relied on PLD 1977 SC 102 and 1983 CLC 1763.
5. In PLD 1977 SC 102, it was opined that section 14 of the Limitation Act (Act 1908) permits the excuse of that time which is spent for the proceedings prosecuted in good, faith. Therefore, in order to make out sufficient cause under section 5, the appellant must prove that he acted in good faith in presenting his appeal in a wrong Court. The Supreme Court has owned definition of "sufficient cause" from authority titled Attaullah v. Custodian of Evacuee Property reported as PLD 1961 SC 236, wherein "sufficient cause" was held "circumstances beyond the control of concerned party." In this case the benefit of section 14 of the Limitation Act was not given as according to the Supreme Court, due care and diligence was not applied while selecting the forum of proceedings. It was observed as under:- "18. 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 decree or order was made exceeds twenty-five thousand rupees; and
(b) to the District Judge in any other case. ...
(2) ................................................
(3) ..................................................
' There is absolutely no ambiguity about this section. Even a layman would be able to understand it without any legal assistance whatsoever. But the petitioner claims to have been advised by an Advocate and the appeal was filed by an Advocate. Therefore, as the petitioner had himself valued his claim in his suit at a sum for exceeding Rs,25,000, it is not possible to understand how any Advocate could have advised the petitioner to file his appeal in the District Court and we find it difficult to believe that the petitioner was misguided by legal advice, but if he was, then we have to observe with regret that the petitioner's Advocate acted with gross negligence in filing the appeal in the District Court."
6. In 1983 CLC 1763, where a decree of Rs,24,090 was passed by Ist Class Civil Judge Khairpur which was assailed in appeal before the learned/District Judge. The learned Judge relying on PLD 1977 SC 102 observed as under:- "The principle is now well-settled that in cases in which condonation of delay is prayed for delay of each day beyond the period prescribed by the law of limitation is to be explained by the suitor concerned. In civil matters valuable rights are created in favour of the other side on account of lapse of time of which he cannot be deprived, unless sufficient cause explaining delay of each day is made out. The appellants have failed to make out a case for exclusion of any period under section 14 or condonation of delay under section 5 of the Limitation Act."
7. Controverting the arguments of the learned counsel for the respondent-Bank, the learned Counsel for the appellants contended that inadvertently the appeal was preferred before the Court of District Judge Mirpur which was taken back without any objection from the opposite side, and the same was presented before the High Court on the same day. In order to get the benefit of section 14, Limitation Act, the learned Counsel for the appellants relied on PLD 1963 Azad J&K 38 and PLD 1975 Azad J&K 131.
8. In the case reported in PLD 1963 AJ&K 38, it was held that "sufficient cause" is to be judged in every case in the light of its peculiar circumstances and if the party is found prosecuting the appeal in a wrong Court with a bona fide belief, then under section 5 of the Limitation Act, limitation should be extended, the relevant portion is reproduced as under:- "We have narrated the facts in this case at some length intentionally to show that there was possibility of a counsel being misled to think that the judgment in the case was pronounced by the Sub-Judge in his capacity as Daputy Custodian and hence the mistake that the appeal was filed in the Court of the Custodian, in our opinion, it is a fit case in which benefit of section 5 of the Limitation Act should have been extended by the District Judge. This case can be easily differentiated from the case quoted as AIR 1933 Lahore 568. In that case the final decree was passed for a sum of Rs,10,042-6-6 and the law was that in an account suit when the value of the amount decreed was over Rs,10,000 the appeal lay to the High Court. The appellant took shelter behind the plea that he had consulted his Counsel who presented the memorandum of appeal to the District Judge. It "was remarked by their Lordships that the High Court had always held that a legal adviser's mistake to justify extension must be a bona fide one, i.e,, it must be done with due care and attention and that as in this case the law was clear, therefore, there was no bona fide mistake. In the present case as already remarked the names of the evacuees appearing in the title of the suit had misled the counsel and then the trial Court was vested with the power both as a Sub-Judge and as a Deputy Custodian and hence the explanation offered was a good one. The other authority PLD 1959 Azad J&K 55 is also not applicable to the present case. In that case the appeal lay to the High Court but was wrongly filed in the Court of the District Judge and when the memorandum of appeal was returned back to the appellant on 7-10-1957 by the District Judge to be presented to the proper Court the appeal was not filed in the High Court soon after but was filed as late as 12-11-1957 for which no satisfactory explanation was given."
' This is a distinguishable case where the benefit was extended to the appellant in view of the peculiar circumstances of this case, as the names of the evacuees were appearing in the title of the suit. Moreover, the Sub-Judges were also acting as Deputy Custodians, therefore, by giving the benefit of these facts, the time was extended.
9. The second authority relied on by the learned Counsel for the appellants is PLD 1975 Azad J&K
131. We cannot digest the law which has been laid down in this authority. The relevant observations are reproduced below:- "Lawyers are a class specifically licensed by the High Court to practise law. Apart from the professional degrees they are thus certified by the High Court itself as fit persons to be engaged and entrusted with litigation by litigants who are generally ignorant of law and procedure. Their ignorance may be no excuse but when they engage lawyers who hold licences for professional advice issued by the High Court, how is it fair to punish them if they act on the wrong advice of these professionals having no means to know it to be wrong and having no reason to suspect that the advice may be wrong. How can in such circumstances such litigants as suffer from their wrong advice be said to have acted negligently.
' The limitation for an appeal to the High Court is 90 days; that for appeal to the District Judge, it is only 30 days. How can a person who files an appeal within 30 days when 2/3rd time is still available to him for filing an appeal in the High Court, be said not to have acted diligently: It might be different controversy."
10. In Civil Procedure Code, the facility has been provided to the parts that they can bring their grievances or defend their interests either in person or through their recognized agents or pleaders.
In this view of the matter, the act of the pleader or the agent is presumed and treated as an act of the party on whose behalf he has acted in the Court. No doubt, where any concession is erroneously given by an Advocate or recognized agent on a question of law then such admission or act does not bind his client. Otherwise all the acts of a pleader authorized to act on behalf of his client must necessarily be taken as an act of his client. If the above-referred principle as laid down by the learned Judges of this Court in the above-mentioned case is relied upon in every case then no formal defect appearing in any legal proceedings can be taken, under consideration, merely on the excuse that formal defect was due to the act of an Advocate who possesses the licence of the High Court. Therefore, it was perhaps in this view of the matter that where in numerous authorities, Courts have extended benefit to a party for the good conduct of their Advocates there the Advocates who have not acted with due care and attention the party was made to suffer for the negligence of the Counsel. What is and is not a good faith, is purely a question of fact. The above observations have been made in the light of the authorities relied upon by the learned Counsel for the appellants. In present case the negligence in filing the appeal in wrong Court has been accepted.
11. The question which needs resolution in order to decide the preliminary objection of the learned Counsel for the respondent is as to whether an inadvertent act of the party or counsel is sufficient or good cause to invoke in aid the provisions of Sections 5 and 14 of the Limitation Act. In our view, an aggrieved person who has not prosecuted the legal remedy with due care and attention, should not expect any premium from the Courts in Civil matters. The applications seeking return of the appeal and extension are reproduced below for the convenience of reference:- {{URDU TEXT}} ' In the Limitation Act applicable here, under section 2(h) the term "good faith" has been defined in the following words:- "nothing shall be deemed to be done in good faith which is not done with due care and attention."
So, in the present case, where forum for presenting the appeal for redress of grievance was not chosen with due care and attention then how the benefit of section 14 of the Limitation Act can be extended to the appellants. Because under this section only that time can be excused which was spent in prosecuting a civil matter in good faith. Otherwise no indulgence can be extended to a person who commits an error which no prudent and reasonable man exercising good faith and due diligence would do.
12. In Civil Procedure Code it is only the decrees which affirm a right of appeal on an aggrieved person and not the judgments. In present case, the decree allowed in favour of the plaintiff- respondent-Bank was for Rs,18,699.66. Under Courts and Laws Code Act the right of appeal should have been exercised before the High Court against this decree, whereas the appellants invoked the appellate jurisdiction of the learned District Judge Mirpur. The present appeal has been filed after about 1 year 3 months and 4 days and in the application for condonation of delay, the appellants have admitted that the appeal was inadvertently presented before the learned District Judge. The first appeal cannot necessarily be preferred before the District Judge. The fact of the matter is that appeal lies to the 'High Court against the judgments and decrees or orders of Additional District Judge, District Judge or even against the orders of the Sub-Judges in suits of the values of over 10,000 rupees. In other cases, where the jurisdictional value of the suit was fixed less than 10,000 rupees in such like cases, appeals from decrees and orders passed by the Sub-Judges lie to the District Judge. The right of appeal is a substantive right but the forum of appeal is a matter of procedure and is always governed by procedural law. In present case, as is evident from the decree sheet the decree allowed in favour of the plaintiffrespondent-Bank was for Rs,18,699.66. The appeal should have been preferred directly before the High Court.
13. The appellants though not wilfully yet without due care and attention have chosen a wrong forum of appeal and such choice in the circumstances of the case, is deemed not bona fide therefore they should not expect any premium from this Court. Only bona fide mistake attracts the protection vouchsafed in section 14 of the Limitation Act. Therefore, this appeal being time-barred, is hereby dismissed. Keeping in view the circumstances of the case, the parties are left to bear their own costs throughout.