JUDGMENT This is an appeal against an ex parte order dated 16-9-1974 of Commissioner for Workmen's Compensation, Lyallpur awarding compensation of Rs. 15,000 to the respondent, Mst.
Zainab Bibi, in respect of the death of her son during the course of his duty.
2. One Abdul Sattar was employed with the appellant as a truck driver and was getting Rs. 465 p.m. as his emoluments.
While he was bringing the truck to Sargodha on duty on 28-5-1974, he met with an accident near Rabwah and died as a result thereof. 1he respondent, Mst. Zainab Bibi, his mother, tiled an application before the learned Commissioner claiming compensation of Rs. 15,000. A notice was issued to the appellant which was returned with a report of the postman dated 29-7-1974 that he was purposely avoiding service. The learned Commissioner, thereupon, proceeded ex parte against him and awarded compensation as mentioned above.
3. Aggrieved by that order Sh. Abdul Rashid, appellant on 29-10-1974 preferred an appeal before the learned Additional District Judge, Lyallpur. During the pendency of the appeal it was revealed that appeal lay only before the Tribunal and not before the learned Additional District Judge. The appeal was, accordingly, returned and was presented to the Tribunal on 16-1-1975.
4. According to section 30(2) of Workmen's Compensation Act the period of limitation for filing an appeal is 60 days. Since the period of limitation for filing the appeal has expired, the learned counsel for the appellant contended that due to the bona fide mistake of the counsel for the appellant, the appeal was filed before the learned Additional District Judge and, therefore, the delay in filing the appeal before the Tribunal be condoned under section 5 of the Limitation Act. In support of his contention he relied on the judgment of the Supreme Court in the case Nazar Muhammad and another v. Mst. Shahzada Begum and another (1), wherein it was held that a mistaken advice by the counsel may be considered to be a sufficient ground within section 5 of the Limitation Act for condoning the delay.
Even previously the same view was expressed by the Supreme Court in the case Mst. Hajra v.
Sardar Muhammad (2).
5. The learned counsel for the respondent, on the other hand, contended that wrong advice by the counsel is not a sufficient cause to condone the delay. In support of his contention he relied on the judgment of High Court in the case Mst. Ghulam Fatima v. Federation of Pakistan through General Manager, Pakistan Western Railway, Lahore (3) wherein it was observed: **A normal standard of efficiency is expected of a Legal Adviser and where an advice is given which no Legal Adviser of reasonable skill would be expected to give, it must be considered that the adviser acted negligently and in such a case there is no sufficient cause." He also relied on another judgment of the High Court in the case Wali Muhammad and 2 others v. Inamul Hassan Khan and 5 others (4), wherein it was observed: "In the circumstances of the case it was held that any advice could have been regarded as a valid excuse for the delay if it could be held (1) PLD 1974 S C22 (2)
PLD 1970 SC 287 (3) PLD 1970 Lah. 493 (4) PLD 1971 Lah. 332 to be based on a bona fide mistake but if the mistake had been committed on account of negligence, in not studying the law on the subject and by not exercising due care and caution no ground for condoning the delay existed in law. A valuable right having been created in favour of a party, it was not liable to be defeated on flimsy grounds." In the present case the appeal was first filed before the learned Additional District Judge on account of negligence of the learned counsel for the appellant. The High Court view is that this is not a sufficient cause fori condoning the delay but the Supreme Court view, on the other hand, is thatU this may be a sufficient ground for condonation of delay in filing the appeal.! In view of the Supreme Court judgment I condone the delay in filing the appeal.
7. The learned Commissioner had proceeded ex parte against the appellant because according to the report of the postman dated 29-7-1974, the appellant had purposely avoided to accept service of the notice issued to him. The appellant in appeal has filed an affidavit that he was abroad from 21- 6-1974 to 8-8-1974 in connection with the operation of his daughter. In support of his affidavit he produced his passport, which shows that he left Karachi on 22-6-1974 for U.K. and returned on 8-8-1974. The passport of the daughter of the respondent whose operation was to be performed, also shows that she left Karachi on 22-6-1974 for U.K., and returned on 8-8-1974. In view of the above documentary evidence it is clear that the appellant was not in Lyallpur on 29-7-1974 and, therefore, there was no question of his avoiding service of notice. The report of the postman, on which the learned Commissioner relied, is thus proved to be false.
8. I, accordingly, accept the appeal, set aside the order of the leamed Commissioner dated 16-9-1974 and remand the case back to him for retrial in accordance with law. No order as to costs.