' CH. MUSHTAQ AHMAD KHAN, J.---House No, 216 G-6/3 Islamabad is owned by Mrs. Asmat Qayyum respondent in this appeal which was on rent with the appellant at the rate of Rs,7332 per month.
The tenancy was for a period of three years commencing with effect from 18-8-1986. As per terms of the tenancy, on expiry of the period of tenancy the house had to be vacated by the tenant who in spite of expiry of the lease period failed to vacate the same. Hence, the respondent filed a suit seeking ejectment of the appellant as well as for recovery of damages/compensation for illegal use and occupation of the house by the appellant for the period of over stay without consent of the landlady. This suit was contested and was decreed in favour of respondent by the learned trial Court vide judgment and decree dated 6-2-1991. Beside passing of decree of ejectment, learned trial Court has awarded a decree for payment of Rs,2,47,0424 .As damages/compensation for use and occupation of the house in question for the period during which the house has not been vacated after expiry of the original lease period. On 14-2-1991 the appellant filed an application for supply of the certified copies of the judgment and decree which were made ready for delivery on 3-3-1991 and were delivered to the appellant on the same date. Although valuation of the subject- matter of the suit land for purposes of jurisdiction is more than Rs,2,00,000 and there was no confusion regarding jurisdictional value instead of filing of appeal before this Court, the appellant chose to file regular first appeal before the District Court of Islamabad in which Court it was filed on 27-3-1991. The appeal was entrusted to learned Additional District Judge, Islamabad in which Court, it remained pending up to 26-6-1991 on which date learned counsel for the appellant made the following statement:-- {{URDU TEXT}} ' In view of the statement made by the learned counsel for the appellant, learned Additional District Judge directed the return of memo. Of appeal alongwith copies to the learned counsel. The memo.
As well as the appended copies were returned to the learned counsel for the appellant on the same day. Copy of order dated 26-6-1991 and copy of the note whereby the memo. As well as the copies were received by the learned counsel are reproduced as under: {{URDU TEXT}} ' A.D.J. 26-6-1991 {{URDU TEXT}}(sic)
' Thereafter for the first time memo. Of appeal was filed before this Court on 30-7-1991. The same was returned by the office with certain objections on the same day to be refiled within two days after removal of the objections. Although note of the learned counsel on the objection sheet shows that the objections were removed on 4-8-1991, yet the memo. Was refiled in this court on 31-8-1989.
Note is reproduced with date:- "All the objections are removed and RFA is being refiled."
(Sd.)
Counsel 4-8-1991 ' Alongwith memo. Of appeal an application under section 5 read with section 14 of the Limitation Act has also been filed seeking condonation of delay in filing of the appeal for the period with effect from 27-3-1991 to 7-7-1991. Main ground seeking condonation of delay as mentioned in the above said application is that appeal before the District Court, which is a wrong forum, was filed bona fidely on the inadvertent advice of Mr. Anwar Mukhtar, Advocate. It is however specifically mentioned in application that the appeal was beyond the pecuniary jurisdiction of the learned District Judge and should have been filed before this Court. No explanation has been mentioned in the application for not presenting memo. Of appeal before this Court immediately after 26-6-1991 up to 30-7-1991 and thereafter refiling thereof up to 31-8-1991. The appeal was admitted to regular hearing subject to question of limitation.
2. Mr. Mansoor Ahmad Advocate has appeared on behalf of the appellant whereas Syed Asghar Hussain Sabzwari, Advocate has appeared on behalf of the respondent and has raised the preliminary objection to the effect that the appeal is barred by time and that there is no sufficient ground to condone the delay:--
3. Learned counsel for the appellant has argued that the appeal before a wrong forum was filed on the basis of an incorrect advice rendered by Malik Anwar Mukhtar, Advocate, therefore, it is a fit case where delay should be condoned by this Court. In support of his contention, learned counsel has placed reliance on case of Pakistan through Secretary, Ministry of Defence v. M/s. Azhar Brothers 1990 SCM R 663 which is a leave granting order wherein their Lordships of the Supreme Court of Pakistan have made the following observations at 664 which are reproduced as under:-- "It is Pakistan Post Office v. Settlement Commissioner and others 1987 SCM R 1119 wherein a specific reference was made to the previously held view of this Court in Province of East Pakistan v. Abdul Hamid Dari 1970 SCM R 558 and, inter alia, it was observed as follows:- `It is necessary to mention here a peculiar feature of Government litigation. No doubt, it was observed in Province of East Pakistan v. Abdul Hamid Dariji 1970 SCM R 558 that in matter of condonation of delay under section 5 of the Limitation Act the Government will not be shown extra indulgence than an ordinary litigant and if so desired only an amendment of law was the way out.
The further experience of nearly two decades after that judgment shows that the inability on the part of the Government to get such an amendment made, has been treated as an accepted and inviolable rule to refuse condonation of delay whenever the plea is raised of departmental delays; which are inherent in the procedures even if culpable negligence is not involved. A just and proper approach which has not been prohibited by the rule in Abdul Hamid Dariji's case, is to treat the request for condonation on its own merits like that of any other litigant and not to shut out the plea on simple formula that it is mere departmental delay/negligence because the decision itself, does not lay down such an inflexible rule. The facts of that case and the condition that each case is to be seen on its own circumstances, cannot at all be ignored. It is well-known that indiscriminate application of this decision has caused immense loss to the public exchequer wherein an innocent third party, namely, the tax-payer in ultimate analysis, suffers the loss. This is besides those cases where delays are collusive so as to avoid dictates of justice and law. Hence, a departmental delay whenever put forward as a ground for condonation of delay requires consideration on its merits and rejected or accepted accordingly, as the case may be.'
' This all has not at all been noticed so that the Government should punish in any manner its agent; namely, the lawyer appearing for it before us in support of this petition, which undoubtedly involves huge sum of money-over ten lacs. The purpose is to demonstrate once again the earlier observation in a case which would be covered by the remarks in the foregoing quotation; namely that a just and proper approach is to treat the request for condonation of its own merits like that of any other litigant; and not to shut out the plea on simple formula that it is mere departmental delay/negligence on the part of Government agents/functionaries. This incident demonstrates another realism also. If the Bench would not itself have been aware of the earlier aforementioned decision or the recent leave grant order dated 17-6-1989 in Civil Petition No, 657 of 1989 and the learned counsel for the respondent had insisted on pressing the rule in the case of Abdul Hamid Dari; while the learned counsel for the petitioner had remained unaware of all this, this petition for leave to appeal might have been dismissed and/or on the aforementioned neglect/failure of the learned counsel for the Government, the oral leave grant order might have been withdrawn. The public exchequer might have suffered immensely.
' The entire question of delay, when the Government agents/functionaries are involved in the light of the foregoing instance, needs further examination.
' In view of what has been stated above we grant leave to appeal in this case also to examine the points noted above as also those taken in this petition.
' On merits learned counsel has contended that the award of damages/compensation for use and occupation of the house after expiry of lease period is excessive as the same has illegally been granted at double the rate of rent, hence, the impugned judgment and decree to that extent is not lawful. Learned counsel however, has not challenged the decree of ejectment passed against the appellant and has stated that the house has already been vacated. On our query learned counsel has conceded that no explanation has been mentioned in the application for seeking condonation of delay regarding delayed presentation of the memo, of appeal before this Court after the same was returned by the learned first appellate Court on 26-6-1991. He has also conceded that no proceedings have so far been taken against the officials who are responsible for the filing of the appeal in a wrong forum or delayed presentation thereof before this Court after return of this memo. Of appeal by the District Court. Nothing has been brought on record that the delay in presentation of the memo. Of appeal before this Court is the result of following of some formalities of processing of the matter in the office of the appellant for the purpose of filing/presentation thereof before this Court.
4. As against the above arguments learned counsel for respondent has argued that there was absolutely no confusion regarding forum of appeal keeping in view of the subject matter of the dispute involved in this appeal which is more than Rs, 2,00,000 therefore, there is no reasonable explanation . As to why the appeal was filed before a wrong forum. It is contended that it is not a case merely of 'negligence' on the part of the learned counsel who has allegedly rendered advice to file the appeal before the District Court but is a case of 'gross negligence' and in such like cases, period of limitation fixed for filing of appeal before the proper forum having expired a valuable right has accrued to the respondent, hence, no indulgence can be shown to the appellant in view of the law declared in cases of Ghulam All v. Akbar alias Akoor PLD 1991 SC 957 and Abdul Ghani v.
Ghulam Sarwar PLD 1977 SC 102. Therefore, the remedy of the appellant if any is against their Advocate who gave a wrong advice and it is not a fit case for condonation of delay, hence, the appeal may be dismissed as being patently barred by time.
' Regarding merits of the case, learned counsel has contended that in spite of expiry of lease period and notices served upon the appellant for vacation of the house in terms of the agreement between the parties, the appellant who is the Government of Pakistan failed to abide by its commitment and the respondent who is a lady was, constrained to file and pursue a suit to get her house vacated for prosecution of which suit she had to undergo a lot of inconvenience, torture and had to bear huge expenditure, therefore, the damages/compensation as granted by the learned trial Court are not excessive and are rather on the lessor side and should have been higher in view of the fact that the appellant is the Government of Pakistan who is supposed not to illegally stick to the premises which are agreed to be vacated on the expiry of the period fixed in the agreement itself, therefore, the amount of compensation as fixed by the learned trial Court is unexceptionable and is in accord with law declared in case of Muhammad Ilyas Hussain v. Cantonment Board Rawalpindi PLD 1976 SC 785 hence, no interference is called for with the judgment rendered by the learned trial Court.
5. We have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. Perusal of the record clearly demonstrates that valuation of the subject-matter of the suit for purpose of court-fee and jurisdiction is more than Rs, 2,00,000.
Provisions of suit valuation act as well as C.P.C., are crystal clear on the subject that in cases where the jurisdiction value of the subject-matter is more than Rs,2,00,000 first appeal is to be filed before the High Court. Legal position is settled more than three decades earlier and there are almost a dozen of judgments rendered by this Court as well as by Hon'ble Supreme Court of Pakistan wherein it has been laid down that forum for filing of appeal is to be determined on the basis of the value of the subject-matter of the lis. The advocates who are considered to be experts in law, while rendering the advice are duty-bound at least to go through the provisions of the bare statute on the subject. In the case in hand alleged advice is not only negligence but is a result of "gross negligence". Learned counsel appears to have not even consulted the record of the case including the judgment and decree rendered by the trial Court not to speak of relevant statutes and the precedents. Expiry of period of limitation has vested the respondent and is a lady with a valuable right. It has been held in cases of "Abdul Ghani" and "Ghulam Ali" referred to supra that wrong advice based upon gross negligence rendered by an advocate is not a valid ground for condonation of delay. In case of "Abdul Ghani" (supra) at page 107 of the report, it has been held as under:-- "In any event, the conduct of other parties cannot help the petitioner to make out sufficient cause under section 5 of the Limitation Act. It is true that this section does not define sufficient cause but the meaning of this expression is too well known to need recapitulation, and we would only refer here to the observations of Kaikaus, J. On this question in Ata Ullah v. Custodian Evacuee Property PLD 1961 SC 236. 'Under section 5 . There has to be a finding of sufficient cause.
' In pre-partition India a 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 cause had been rejected." We re-affirm these observations and we may explain here that the burden is on the appellant to prove that his delay in filing his appeal was on account of circumstances beyond his control, because as observed by Sir George Rankin in Kunwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali and others AIR 1937 PC 276 in applying . Section 5 (of Limitation Act)... The analogy of section 14 (which applies only to suits) is an argument of considerable weight." Section 14 permits the exclusion of time only for proceedings prosecuted in good faith, "therefore, in order to make out sufficient cause under section 5 an appellant must prove that he had acted in good faith in presenting his appeal in the wrong Court. Good faith has been defined in clause (7) of section 2 of the Limitation Act as: 'good faith': nothing shall be deemed to be done in good faith which is not done with due care and attention. "Now if an appellant proves that he filed his appeal in the wrong Court despite due care and attention it means that the presentation of the appeal in the wrong Court was on account of circumstances beyond his control. No doubt, what such circumstances are must depend on the facts and circumstances of each case and in Kunwar Rajendra Bahadur Singh's case, Sir George Rankin set aside the finding of the Chief Court that the appellant's advocate had been very negligent in filing the appeal in the wrong Court because the facts relevant to the question of the Court in which the appeal was to be filed were very complicated.
Similarly, an appellant can bring his case under section 5 if he can show that there is some ambiguity in the law governing the forum in which the appeal is to be filed. Or, to take another example, an appellant can rely on section 5, if he can show that he was misguided by the practice of the Court or by an erroneous judgment of the Court but, in the instant case, the provisions of section 18 of the West Pakistan Civil Courts Ordinance are plain beyond any doubt and as there is also no complication whatsoever about the facts relevant to the question of the proper forum for filing the appeal, it is clear that the prosecution of the appeal in the District.Court was an act of gross negligence."
' In case of "Ghulam Ali" PLD 1991 SC 957 at page 961 to 963 of the report, it has been held as under:- "In the instant case, it is stated that the mistake was of the counsel, who thought that appeal was maintainable before the District Judge. Had the counsel exercised due diligence, he would have certainly discovered that value of subject-matter in the suit was more than Rs,25,000 as such appeal was not competent before the District Judge but in the High Court. Bar of jurisdiction is so provided under section 18 of the Civil Courts Ordinance, 1962. The council is expected to know this legal position correctly as to where the appeal is to be filed. There is no gainsaying the assertion that the other side did not raise objection and it was not pointed out by Court that appeal was not maintainable but the Court proceeded further and disposed of the appeal on merits. These questions had come up for consideration before the Supreme Court in the context of interpretation of sections 5 and 14 of the Limitation Act in the case of Abdul Ghani v. Ghulam Sarwar, reported in PLD 1977 SC 102, in which the facts were similar inasmuch as the appeal was filed in the District Court due to wrong advice of the counsel who claimed to have been misguided by the District Court inasmuch as that Court granted him interim injunction and further that the appeal was transferred to Additional District Judge. It is held in that case that section 14 of the Limitation Act applies only to suits and permits exclusion of time only for proceedings "prosecuted in good faith" and therefore, in order to make out sufficient cause under section 5, an appellant must prove that he had acted in good faith in presenting his appeal in the wrong Court. Good faith has been defined in clause (7) of section 2 of Limitation Act as nothing shall be deemed to be done in good faith which is not done with due care and caution. Further observation from the judgment in that case is reproduced as under: `Now if an appellant proves that he filed his appeal in the wrong Court despite due care and attention it means that presentation of the appeal in the wrong Court was on account of the circumstances beyond his control. No doubt what such circumstances are must depend on the facts and circumstances of each case, and in Kunwar Rajendra Bahadur Singh's case, Sir George Rankin set aside the finding of the Chief Court that the appellant's Advocate had been very negligent in filing the appeal in wrong Court because the facts relevant to the question of the Court in which the appeal was to be filed were very complicated. Similarly, an appellant can bring his case under section 5, if he can show that therefore is some ambiguity in the law governing the forum in which the appeal is to be filed. Or, to take another example, an appellant can rely on section 5, if he can show that he was misguided by the practice of the Court or by an erroneous judgment of the Court. But, in the instant-case, the provisions of section 18 of the West Pakistan Civil Courts Ordinance are plain beyond any doubt and as there is also no complication whatsoever about the facts relevant to the question of proper forum for filing the appeal. It is clear that presentation of appeal in the District Court was an act of gross negligence.'
' In nutshell, rule laid down by Supreme Court of Pakistan in the case of Abdul Ghani mentioned and quoted above, is that time consumed in pursuing appeal in the wrong forum cannot be condoned under section 5 of the Limitation Act on the ground that no objection was raised in that forum that appeal' was not maintainable or such defect was not noticed by that forum and further mistake of the counsel in choosing wrong forum, cannot be treated as an act done in good faith as the same is not done with due care and caution and would not amount to sufficient cause as contemplated under section 5 of the Limitation Act. This is good law and holds the field.
' The counsel for the appellant before us has not been able to convince us why rule laid down in Abdul Ghani's case should not be followed. He had cited the case of Haji Abdullah Khan and others v. Nisar Muhammad Khan and others, reported in PLD 1965 SC 690, in which it is held that a party is not bound to engage a counsel. Whatever law becomes applicable on the admitted or proved facts, it has to be given effect to whether or not it has been relied upon by a party. In that reported case facts were entirely different and the Court was considering the effect of interpretation of section 4 of Kabul Riyer Project (Control and Prevention of Speculation in Land) Act, 1948, which prohibited alienation of 'project land' and not an agreement for sale. Contention was raised that whenever sale of land was prohibited, agreement for sale without sanction should also be regarded as prohibited on the grounds of public policy. This contention was not accepted and it was held that it was open to the parties to enter into an agreement subject to compliance with condition precedent. Attack shown that the intention of the agreement was to defeat a law.
Question arose in Supreme Court for consideration whether effect of minority of plaintiffs on the validity of agreement for sale and whether agreement should be specifically enforced in a suit by minor were pure questions of law or mixed questions of law and facts. It was in that context that observation was made that those questions were questions of law and it was duty of the Court itself to apply the law. A party was not bound to engage a counsel. Whatever law becomes applicable on the admitted or proved facts, has to be given effect to whether or not it has been relied upon by a party. It is apparent that facts of the reported case are different and distinguishable from the case under consideration.
' Further, condonation of delay under section 5 of the Limitation Act sought on the ground of ill- advice of the counsel was not accepted in the case of Mst. Mahmooda Begum and others v. Malik Muhammad Isfiaq and others, reported in 1984 SCMR 890. It was further held in that case that if the client has suffered on account of ill-advice by the counsel, redress could be sought against the counsel but delay cannot be condoned."
6. In the application seeking condonation of delay except wrong advice of the learned counsel, no other reason has been mentioned for filing of appeal in a wrong forum. Neither condonation of delay has been asked for the period beyond 7-7-1991 to 31-8-1991 nor is there any explanation for not presenting the memo. Of appeal before this Court immediately after 26-6-1991 on which date memo. Was returned to the appellant. Admittedly no action has as yet been taken against any of the functionaries of the Government who are responsible for filing of the appeal in a wrong forum and delayed presentation of memo. Of appeal after return thereof by the learned lower Appellate Court before this Court. Nothing has been brought on record to prove that the advice as alleged in the application was actually rendered by the learned Advocate or that any period was consumed for processing the matter for presenting the memo. Of appeal before this Court which could have been immediately presented by putting the memo. In the box or by presenting the same in office of this Court which was admittedly open with effect from 26-6-1991 up to the date of starting of long vacations in the month of July and even during the long vacations as well therefore, case in hand is not covered by the exceptions justifying condonation of delay as mentioned in case of 'Pakistan through Secretary, Ministry of Defence' PLD 1990 SCM R 663 (supra). It is, hence, clearly a case of "gross negligence" therefore, no case has been made out for grant of condonation of delay within the meaning of section 5 read with section 14 of the Limitation Act nor any case has been made out for excluding the period during which the appeal remained pending in the Court of learned first appellate Court as it cannot be said that the appeal has been filed and pursued in a wrong forum in a bona fide manner, knowledge of law is presumed to be there and ignorance of law is not an excuse particularly when the facts are admitted, Hence, no case is made out for condonation of delay. We, therefore, dismiss the application (C.M. No, 645-C/91) for grant of condonation of delay and hold that the appeal is liable to be dismissed as barred by time.
7. As regards merits also the appellant has no case. Admittedly the house was not vacated on the expiry of original lease period. The appellant being the Government of Pakistan was duty bound to vacate the premises immediately on expiry of the lease period. Commitment made by the State is to be honoured in letter and spirit otherwise it undermines credibility of the State amongst the general public which is against the public policy and against the provisions of Constitution of Islamic Republic of Pakistan, 1973 as amended up to date according to which the injunction of Islam have become a. Part of Constitution. Refer case of Nargis Shaheen v. Federation of Pakistan PLD 1993 Lah. 732 and Khalid Khan and another v. Govt. Of Pakistan C.P.S.LA. No, 485, of 1993 decided on 13-10-1993 by their Lordships of the Hon'ble Supreme Court. The respondent who is a lady had to undergo the litigation and to spend time and money to get his own house vacated. The appellant had no lawful justification not to abide by the terms of written contract. It is clearly a case of breach of contract. Possession of the appellant after expiry of the lease period being patently illegal does justify awarding the damages/compensation to the respondent at the rate of double the amount of rent as held in case of 'Muhammad Ilyas Hussain' PLD 1976 SC 785 referred to supra wherein at pages 784-85 of the report it has been held as under:- "As to the submission that the appellant's position after the 30th June 1956 continued to be that of a tenant 'holding over' within the meaning of section 116 of the. Transfer of Property Act, there is clear distinction between a tenant continuing in possession after the determination of the lease with the consent of the lessor whether express or tacit and a tenant continuing in possession without the consent of his lessor. In the latter case the lessee's position is that of a `tenant of sufferance' in the language of English Law. Under section 116 of the Transfer of Property Act, the essential condition for treating a lessee as tenant 'holding over' is that the lessor accepts rent or otherwise assents to the lessee's continuing in possession. But there is not a speak of evidence to that effect: rather all indications on the record point to the opposite.
' It is not denied that twice the respondent peremptorily refused the appellant's request for extension of lease beyond the 30th June 1956, because the respondent had decided to re-enter the business of ginning cotton in Pakistan itself. Therefore, the Courts. Rightly concluded that the appellant's possession of the factory after the 30th June 1956 was contumacious and therefore wrongful. Hence the liability to pay damages.
' Finally learned counsel prayed for relief ex debito justitiae. He submitted that damages at twice the rate of agreed rent was penal and therefore, should be disallowed. The argument ignores the fact that the decree was passed as far back as 6-7-1962 and until today stands wholly unsatisfied.
Since then the value of Pakistan rupee has declined sharply. Therefore, in the event of the recovery of the decretal amount, the respondent decree-holder will in effect get only a small fraction of what was the purchasing value of the decretal amount at the time when the decree was originally made in his favour. Judged from this point of view, which it is not possible to suggest, is not relevant, the equities of the case lean heavily against the appellant."
The decree passed by the learned trial Court to the extent of order of ejectment has not been challenged, hence, the judgment and decree rendered by the lower Court is affined on merits as well.
' Resultantly we see no force in the appeal, hence, the same is dismissed as barred by time and also on merits. Parties are left to bear their own costs.
8. Before parting with this judgment we will like to observe that in cases where the Government has taken certain premises on rent it has come to our notice that on the expiry of lease period the premises are not vacated against The consent of the landlord/landlady. The result is that such illegality on the part of the functionaries of the State lands the Government into trouble and not only ejectment decrees are passed by law Courts but the Government has also to pay damages/compensation for the period of illegal overstay which is usually double the amount of actual rent. This is a great loss to the Government exchequer and this type of litigation and conduct of the functionaries on the State besides causing loss to the Government exchequer also undermines the credibility of the Government amongst general public which is against the Constitution the injunction of Islam and the public policy. We therefore, except that the Government shall ensure the honouring of its commitments in this behalf and avoid the liability of payment of compensation/damages out of valuable public money and shall uphold the dignity and credibility of the Government amongst the people of Pakistan. A copy of this order shall be sent to the Principal Secretary to the Prime Minister of Pakistan to be circulated amongst all the heads of the department of the Federal Government.