' BASHARAT AHMED SHEIKH, J.---This is an appeal against a judgment of the High Court by which a Division Bench on 24-1-1991 dismissed the appeal filed by the present appellants as being time- barred.
2. The facts giving rise to the present appeal are that the respondent Bank filed a suit for recovery of Rs,18,699.66 in the Court of Sub-Judge Mirpur on December 29, 1979. The suit was decreed on 23- 1-1986. The appellants filed an appeal against the aforesaid decree in the Court of District Judge, Mirpur. Subsequently it was realised that, in view of the amount involved, the appeal was competent only in the High Court and an application was filed in the Court of District Judge requesting that the appeal may be returned for being presented to the High Court. The appeal was returned to the appellants on April 7, 1987 and was filed in the High Court on the same day. The time allowed for filing appeal in the High Court in the meanwhile had run out. In the High Court a new memo. Of appeal was filed with wnich the original appeal returned by the District Judge was also attached. It was stated in the last para. Of the memo. Of appeal that the appeal had been inadvertently filed in the Court of District Judge and that on having "come to know" the memo. Of appeal and the requisite copies had been taken back from the District Judge and were being filed in the High Court and that, therefore, the appeal was within time. A separate application was also moved in which the same statement was repeated with the addition that it was prayed that if appeal was considered as barred by time condonation may be granted.
3. While holding that the appeal was time-barred, the Division Bench came to the conclusion that the appellants without due care and attention chose a wrong forum and thus mistake could not be deemed to be bona fide. It was observed that only bona fide mistakes attract the application of section 14 of the Limitation Act. The learned Judges relied on the definition of "good faith" as contained in section 2(4) of the Limitation Act and observed that if due care and attention had been exercised then it would have been easily found that the appeal had to be filed in the High Court and not the Court of District Judge. The learned Judges disagreed with an earlier Division Bench case reported as Sardar Ismail Khan v. Sardar Bagga Khan PLD 1975 Azad J&K 131 which was to the effect that a litigant cannot be penalised for the wrong advice of a legal practitioner who is duly licensed by the High Court and is, therefore, known as a fit person to be engaged and entrusted with the litigation by the people who are themselves ignorant of the law and procedure.
4. Mr. Nazir Ahmad Ghauri, the learned counsel for the appellants, contended that circumstances of the case were such that it was apparent that the appeal filed in the Court of District Judge was due to inadvertence based on the wrong advice of the counsel and that circumstances did justify deduction. Of time or condonation of delay. He vehemently contended that view taken by the Azad Jammu and Kashmir High Court in Sardar Ismail Khan v. Sardar Bagga Khan PLD 1975 Azad J&K 131 was the correct exposition of law. He also relied on Ashiq Hussain Shah v. Ashiq All Shah 1982 SCMR 1110, M.A. Jalil v. Group Capt. (Retd.) Salah-ud-Din Khan 1983 CLC 1685, Saddar Din v. Allah Rakha 1984 CLC 1258, Muhammad Ayub v. Sain Dass PLD 1963 Azad J&K 38, Al-Haj Mian Ghulam Yasin v.
Managing Director, AKLASC, Muzaffarabad 1987 CLC 1307 and Muhammad Sharif Khan v. Mst.
Manzoora Begum 1992 CLC 22.
5. On the other hand Ch. Muhammad Taj, the learned counsel for the respondent, contended that mistaken advice of the counsel was not in law a recognised ground for condonation of delay. He relied on a judgment of the Supreme Court of Pakistan reported as Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102. This judgment has also been relied upon by the learned Judges in the High Court in the judgment under appeal.
6. During his arguments the learned counsel for the respondent relied on section 14 of the Limitation Act in order to bring his case within limitation. We may however observe that this section has nothing to do with appeals and its application is confined to suits. In this provision of law it is laid down that in computing the period of limitation prescribed for a suit, the time spent by the plaintiff in prosecuting, with due diligence, another civil proceeding shall be excluded; if other conditions regarding cause of action are fulfilled. It is true that subsection (1) of section 14 provides that time spent in prosecuting an appeal is also to be excluded but this exclusion is allowed only if a suit, not an appeal, has to be instituted. If a person files a suit and shows to the Court that he had been, with due diligence, prosecuting a civil suit and subsequently an appeal the time spent not only in prosecuting the civil suit but also the appeal would be excluded. However, if a person files a civil appeal and wishes to seek exclusion of time which he spent, even with due diligence, in another civil suit or appeal section 14 would not be applicable. While section 14 applies to civil suits, section 5 of the Limitation Act is applicable to appeals, applications and review petitions. The grounds which are available for applying section 5 are substantially different. Section 5 caters to different situations which may be covered by the words "sufficient cause". So far as the meaning of "sufficient cause" is concerned it has become well known through judicial pronouncements. It was observed by B.Z. Kaikaus J., in Ata Ullah Malik v. The Custodian, Evacuee Property and others PLD 1964 SC 236 that: "....Sufficient cause had been defined as circumstances beyond the control of the party -and I do not know of any case wherein this definition of sufficient causehad been rejected."
' This observation was reaffirmed by the Supreme Court of Pakistan in the case reported as Abdul Ghani v. Ghulani Sarwar PLD 1977 SC 102.
7. Although, as seen above, section 14 does not apply to appeals but it has been held in a number of cases that its contents can be made applicable by analogy so that if a litigant shows that he had been in good faith prosecuting another civil proceeding within the meaning of section 14 such circumstance may be treated as a "sufficient cause" for condonation of delay within the meaning of section 5. Among the cases in which this proposition has been laid down, we may refer to Kunwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali and others AIR 1937 PC 276 and Abdul Ghani's case mentioned above.
8. This takes us to the question whether the appellants can successfully urge that the appeal filed in the Court of District Judge had been filed and prosecuted with good faith. If the appellant's contention is shown to be well founded, it would furnish a "sufficient cause" for condonation of delay. Notwithstanding the fact that both the learned counsel who appeared in this appeal were not aware of it, this proposition stands concluded by judgments of this Court that circumstances as appearing in the present case cannot be termed as being the result of "good faith"; rather in fact they constitute "gross negligence" and cannot be treated as a sufficient cause for condonation of delay. Where the provision of law is clear question of condonation does not arise. It may arise when a litigant is misguided by some practice of a Court or by an erroneous judgment.
9. In an unreported case of this Court entitled Muhammad Hussain Khan v. Abdul Karim (Civil Appeal No.41 of 1978, decided on 7-34984) a decree based on right of prior purchase was passed in favour of the plaintiff on payment of Rs,20,000. The plaintiff filed appeal to challenge the pre- emption amount. The defendant also appealed in respect of the claim for pre-emption. Both the appeals were filed in the Court of District Judge who returned both the memorandums of appeal on the ground that he could not hear the appeals due to lack of pecuniary jurisdiction. Appeal filed by the plaintiff in the High Court was dismissed in limine as time-barred after rejecting the plea that the appeal with the District Judge was filed through a bona fide mistake. Appeal filed in this Court was dismissed. It was observed as follows by one of us (Sardar Said Muhammad Khan, J.): "It has been vehemently argued by the learned counsel for Abdul Karim, appellant, that the learned Single Judge of the High Court erred in refusing the prayer for the condonation of delay. He has argued that the delay was caused due to a bona fide mistake of the counsel, who believe that the appeal was competent to the District Court. There is ample authority in support of the proposition that the mistake of law is not a sufficient cause for the condonation of delay unless such ignorance of law is bona fide and is unaccompanied by negligence. The maxim ignorantia legis niminem excusat' has been firmly established in the superior Courts of sub-continent and it would amount to shaking of the established authority to maintain that ignorance of law or mistake of law are valid reasons for condoning delay; especially so when such ignorance could have been avoided by resorting to the relevant law on the subject. We are fortified in our view by cases: Aon Muhammad v. Rehabilitation Commissioner PLD 1966 Lah. 319, Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102, Rehmat Ullah Chugtai v. Azad Kashmir Government PLD 1967 Azad J&K 47, Sardar Ali v. Chief Secretary Government of Azad J&K PLD 1974 Azad J&K 5 and Ghulam Fatima v. Federation of Pakistan PLD 1970 Lah.
493.
' It may be further observed that it has to be ascertained in each and every case as to whether or not the mistaken advice was the result of absence of due care and attention. If the Court comes to the conclusion that it was due to lack of reasonable skill on the part of the counsel, it will stand on the same footing as negligence. There may be cases where law on the subject is not clearly established by the judicial pronouncements or the relevant statutory provision admits of more than one interpretation. In such cases, it may be argued that the mistake of the counsel could not be avoided despite the possible efforts in that regard. But, where the statutory provision is clear and there is no ambiguity in the law resulting in a mistaken belief of a legal adviser, there remains hardly any ground for approving the argument that the delay in filing the appeal should be condoned because the counsel for a party committed a bona fide mistake. A mistake which is the result of lack of due care and caution expected from a legal adviser cannot be termed as a 'bona fide mistake' by any stretch of imagination.
' In the instant case, the objection with regard to the jurisdiction value of the suit was raised in the trial Court and it was made subject-matter of an issue, which was decided by the trial Court. The findings on the relevant issue were not assailed when the appeal was filed before the District Judge. Besides, when the appeal was pending before the District Judge an objection was raised by the opposite-party on 7-6-1976 that the appeal was not competent to the District Judge; but no steps were taken by the appellant or his counsel to rectify the mistake by filing the appeal in the proper forum, i.e,, the High Court. The facts of the instant case are such that there is hardly any force in the argument that despite the aforesaid negligent conduct the case is one of bona fide mistake justifying the condonation of delay in filing the appeal. Therefor; the argument that the impugned order of the High Court dismissing the appeal suffers from legal infirmity is not tenable and is hereby repelled?
10. The facts in Farooq Ahmad v. Mst. Rashida Bibi (Civil Appeal No.6 of 1988, decided on 19-2-1989) were that a decree for Rs,15,000 was passed in favour of the plaintiff on the basis of dower. The defendant filed appeal with the District Judge who returned the appeal as it lay to the High Court.
Appeal was preferred in the High Court after the prescribed limitation and condonation was sought on the basis of 'bona fide mistake'. It was held by the High Court that it was a case of 'gross negligence' and dismissed the appeal. This Court upheld the view of the High Court with the following observations:-- "We have given our due consideration to the arguments raised by the learned counsel for the parties. It may be observed that even an experienced counsel may be misled regarding limitation on account of ambiguity in law or due to divergent judicial pronouncement. But where the law is well settled and there is no ambiguity regarding the correct forum for filing the appeal, the case does not come within the ambit of 'bona fide mistake'; rather it would be a case of 'gross negligence'. In view of the relevant provision embodied in the Courts and Laws Code Act, there is no ambuguity that the appeal was competent to the High Court and not to the District Judge. The learned counsel for the appellant could have avoided the mistake by resorting to the relevant provisions of law. Thus, the argument that the counsel for the appellant took due care and caution while choosing the forum for filing the appeal cannot be accepted. In the aforesaid view of the matter we see no reason to differ from the view taken by the High Court and hold that in the instant case the mistake in choosing the wrong forum was the result of gross negligence on the part of the counsel for the appellant and thus cannot be regarded as 'bona fide mistake'. It may be observed that the counsel for the party is expected to be careful in such cases; otherwise the aggrieved party, as has been held in some of the authorities, may sue his counsel for damages."
11. As the point involved in the case stands concluded by the aforesaid judgments of this Court, the case-law cited by the learned counsel for the appellant is of no avail to him. This includes Sardar Ismail Khan v. Sardar Bagga PLD 1975 AJK 131 as it stands overruled.
The appeal has no merit and is, therefore, dismissed with costs.