1. ' GUL ZARIN KIANI, J.---This is an appeal against a decree and order dated 10-7-1988 of the learned Senior Civil Judge, Islamabad passed in a civil suit for specific performance of an agreement to sell, closing plaintiff's evidence and dismissing his suit for want of proof. The point falling for decision in the appeal was whether it was barred by limitation, and, delay in filing of the appeal could be excused and condoned. The point arises in the back-drop of the following events.
2. ' A residential House No,3-A, Street No,16, Sector F-8/3, Islamabad belonged to Saadat Ali Khan. He agreed to sell it to the appellant for a sum of Rs,13,00,000 and received Rs,2,00,000 earnest. Balance consideration was to be paid at the time of finalization of the sale. As sale agreement did not materialise, appellant brought a suit for its specific performance. Owner-defendant contested the suit. The trial Court framed issues in the suit and postponed it for taking evidence from the appellant. Since he failed to produce his evidence, the trial Court closed his evidence on 10-7-1988, and, dismissed the suit. Appellant preferred an appeal in the District Court at Islamabad on 17-10- 1988. Appeal was entrusted by the learned District Judge Islamabad to a learned Additional District Judge, in the same District. On 11-1-1989, it was discovered that subject-matter of appeal exceeded pecuniary jurisdiction of the Court which then ordered return of the appeal for its re-presentation to a Court of competent jurisdiction. Instead of taking return of the appeal, appellant chose to apply for a certified copy of the order directing return. Certified copy of the order was delivered to the appellant on January 19, 1989. January 20, 1989, being a Friday and observed holiday in those days, appeal was re-filed in the High Court on 21-1-1989. Application under sections 5 and 14 of the Limitation Act accompanied the memorandum of appeal for condoning the delay in its filing.
3. Application was supported by an affidavit of the appellant. Only ground urged for condoning the delay was that the counsel for the appellant who had filed the appeal in the lower Court presuming the decision as 'appealable order' filed the appeal in the Court of District Judge within limitation and the respondent did not object to that course.
4. ' Facts which are few and simple raised a complex question of law relating to applicability of sections 5 and 14 of the Limitation Act for excusing delay and extending time for filing of the appeal.
5. There was no doubt that the appeal was re-filed beyond prescribed period of limitation and unless the delay was condoned, appeal was bound to fail on account of time bar. The question is whether on the facts stated, delay was excusable for saving the appeal from dismissal on the score of limitation.
6. Plaint was valued for purposes of court-tee and jurisdiction at Rs,13,00,000, being the agreed consideration for sale of the house. In terms of section 18 of the West Pakistan Civil Courts Ordinance, 1962, on value of subject-matter of the original suit, first appeal lay to the High Court and not the District Judge as erroneously assumed by the appellant and his counsel, be it a decree or a mere order. Section 18 embraced both a decree and an order in its sweep. Similarly, section 406 of Civil Procedure Code provided that in case of an appealable order, appeal shall lie to the Court to which an appeal would lie from the decree passed in the suit. An order closing evidence under Order XVII, Rule 3, C.P.C. And, dismissing the suit amounted to an appealable decree. Value of the original suit determined its future course for purposes of appeal. Order of the trial Court and the decree-sheet prepared by it showed the value of the suit for Court-fee and jurisdiction at Rs,13,00,000. Therefore, there was no ambiguity about jurisdictional value of the original suit.
7. Important question would be whether in these circumstances, with exercise of due diligence and care, the appeal could have been preferred to the Court of District Judge and the assumption of the counsel for taking it to that forum could legitimately attract benefits of the aforenoticed sections of Limitation Act. To obtain exclusion of time spent in the proceedings in the Court which from the defect of jurisdiction or a cause of a similar nature was unable to entertain it and grant relief, three conditions must co-exist; (1) the plaintiff must have been prosecuting with due diligence; (ii) the earlier and the later proceeding must rest upon the same cause of action; and
(iii) former proceeding must have been prosecuted in good faith in a Court which from a defect of jurisdiction or other similar cause was unable to entertain it. Element of care and caution is an essential pre-requisite for allowig exclusion of time under section 14 of Limitation Act. "Good faith" is defined in section 2(7) of the Law of Limitation as "Nothing shall be deemed to be done in good faith which is not done with due care and attention". On its plain language, section 14 applied to suits and applications. `Suit' defined in section 2(10) of the Law of Limitation did not include an 'appeal'. In Balbir Chand v. Gopal Chand AIR 1954 Pepsu 126, Anandi Ram Kalita and another v. Mt.
8. Chaduri Pachinioni AIR 1956 Assam 63, Subedar Baman Ram v. Mt.Masti and another AIR 1960 Himachal Pradesh 14, Ramlal and others v. Rewa Coalfields Ltd. AIR 1962 Supreme Court 361, Chunilal Basu and another v. The Hon'ble Chief Justice High Court, Calcutta and others AIR 1974 Calcutta 326, and Munshi v. Junna Ram AIR 1974 Punjab and Haryana 229, it was ruled that section 14 of Limitation Act, in terms, applied to suits and applications and not to appeals but the circumstances contemplated in it could justifiably be looked into for constituting a "sufficient cause" within the meaning of phrase used in section 5 of the Limitation Act for purposes of appeals also. In either case, due diligence, care and caution are essential elements. Neither section 14 nor 5 of Law of Limitation are intended to put a premium on negligence, inaction, indifference or carelessness. In Sarmukh Singh v. Chanan Singh and others, AIR 1960 Punjab 512, dealing with the effect of a mistaken legal advice on bar of limitation it was observed :-- "In my opinion, it is incumbent on a litigant seeking relief under section 5 of the Indian Limitation Act to place material before the Court from which it is possible to deduce that the counsel acted in "good faith", in other words, "with due care and attention". In the State of Punjab, section 39 of the Punjab Courts Act deals with the question of appeals from the decrees of Subordinate Judges and it is unambiguously laid down that an appeal from a decree or order of a Subordinate Judge generally lies to the District Judge where the value of the original suit, in which the decree or order was made did not exceed Rs,5,000 and in any other case, it lies to the High Court.
9. ' Had the learned counsel cared to look up this section, there could have been no reasonable doubt, that the appeal could, on no conceivable ground, be competent in the Court of the learned District Judge. This was not an error liable to be committed by a reasonably prudent lawyer exercising due diligence and caution. Indeed a mistake due to negligence or misconduct or want of reasonable skill can by no stretch be considered to fall within the definition of "good faith" as contained in section 2(7) of the Limitation Act.
10. ' But Mr. Thapar has contended that the appellant had entrusted his case to a very senior counsel and, therefore, he must not be penalized for the mistake or even negligence of his legal adviser. It is difficult for me to subscribe to this broad proposition. It cannot be the rule of law that any mistaken advice given by a counsel of long-standing must constitute a sufficient ground under section 5 of the Limitation Act, and a party is, in my opinion, not completely absolved of his responsibility, nor can he become automatically entitled to protection under the above section merely by entrusting his work to a senior advocate.
11. ' The view taken by the legal adviser, if reasonable, though mistaken may well justify protection by section 5, but where the view taken is wholly unsupportable on the express language of a well- known provision of law, it is difficult to apply section 5 to such a case. Indeed, each case has to be decided on its own facts, but the burden of bringing his case within the purview of sections 14 and 5 of the Indian Limitation Act always lies on the person seeking their benefit. It is also for him to place before the Court material from which due care and attention on the part of the legal adviser can be spelled out.
12. ' In the instant case though an affidavit by the counsel has been placed on the record it is completely bare of material showing as to why he considered that the appeal lay in the Court of the District Judge, when the value of the subject-matter of the suit was, admittedly and to his knowledge Rs,6,000. A person practising the profession of law is expected to make himself master of the principles of the law that he is to help administer and about which his advice is generally sought by his clients; ignorance of the elementary provisions of section 39 of the Punjab Courts Act is thus, in my opinion, hardly excusable in a legal practitioner, whatever be his standing at the Bar, and cannot by itself, constitute a sufficient cause within the purview of section 5, Indian Limitation Act."
13. ' In Munshi v. Punna Ram, AIR 1974 Punjab and Haryana 229, a Division Bench of the Court op the application of sections 14 and 5 of the Law of Limitation said:-- "Though section 14 of the Act in terms applies to suits and applications only and not to appeals, the circumstances contemplated in the section can justifiably be taken to constitute a "sufficient cause" within the meaning assigned to that phrase in section 5 of the Act for purposes of appeals also. A contrary view taken by some High Courts in the earlier days is against the concensus of legal authority on this subject. The only distinction between the applicability of section 14 in terms in the case of a suit or an application on the one hand, and the invocation of the principles of section 14 in the case of an appeal on the other, is that whereas section 14 confers a right on a plaintiff or an application to get the period during which the suit or application was pending and prosecuted bona fide in the wrong Court excluded as a matter of right, the remedy based on the principles of that provision under section 5 of the Act in the case of an appeal is discretionary and the Court may condone the delay in filing an appeal in the correct Court if the requirements of section 14 appear to have been satisfied and on the facts and in the circumstances of the given case they are held to constitute a sufficient cause in the sense in which that expression is used in section 5 of the Act. Even if the considerations of good faith and due diligence which are necessary ingredients of section 14 may not be applicable in their rigidity to proceedings under section 5 of the Act, lack or want of bona fides can never justify the raising of an inference of sufficient cause in any circumstances."
14. ' In another part of the judgment, speaking on burden of proof to establish "sufficient cause", the learned Judges observed :-- "The burden of proving due diligence is on the litigant claiming the benefit of the provision or principles of section 14. The facts of this case are eloquent enough to show that the judgment- debtor had not preferred the appeal to the Court of the District Judge on account of some possible mistake, and his continuing the appeal in that Court after April 4, 1973, till June 6, 1973, was in any case, not bona fide. Proof of sufficient cause for delay of each day in prosecuting the appeal after the period of limitation is a condition precedent to the exercise of discretion under section 5 of the Act. Sufficient cause has been consistently interpreted in judicial decisions to mean a cause which is beyond control of the party invoking the aid of the section or a cause for delay which a party could not possibly have avoided despite due care and attention."
15. Judged in the light of the legal principles and the judicial decisions, some of which have been quoted above, it is clear that the action of filing the appeal in the Court of District Judge could not be taken to be an act done under a bona fide mistake of law. It cannot be possibly held that the appellant had been prosecuting the appeal in the Court below with due diligence. Further, when the Court directed return of appeal for its presentation to a Court of competent jurisdiction, the appellant instead of immediately taking the return of appeal for its soon filing in the competent Court, chose to apply for a certified copy of the order directing return and in that process wasted still more eight days for which no allowance under the law could be given to him. Power to excuse and condone delay under section 5 of the Act is discretionary, and, the discretion like all other power has to be exercised judicially. Sympathy or benevolence should not sway the requirements of law and justice. Therefore, in our opinion, delay occasioned by the appeal having been first filed in the wrong Court cannot be condoned. In taking the view about delay and its condo nation, we are fortified by a decision of the Supreme Court in Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102.
16. ' For the reasons noticed above, petition for condoning the delay does not find favour with us and the appeal is also dismissed summarily as barred by limitation.