This petition under section 115 of C.P.C. Arises out of a suit for possession through pre-emption filed by respondent which was decreed by the trial Court on 8-10-1980. That decree was affirmed by the District Judge, Sargodha who dismissed the appeal of the petitioner on 21-12-1981. Hence this petition.
2. Learned counsel for the petitioner has contended that suit of the respondent was barred by time and the Courts below have acted illegally and with material irregularity in condoning the delay in filing the suit which should have been dismissed as being out of time.
3. Learned counsel for the respondent has, however, defended the impugned judgments.
3-A. In order to appreciate the contention of the learned counsel for the petitioner, a reference to certain facts is necessary. The sale which was pre--empted by filing the suit had taken place on 14th July, 1975 while the suit was filed by respondent on 12th July, 1976 before the Collector where an objection was raised that as the preferential right was not claimed on the basis-of tenancy, the suit should have been filed in the Civil Court. That objection was upheld b1 the Collector who on 28-9- 1977 directed that the plaint be returned to the respondent/plaintiff for presenting it before the proper Court. Pursuant thereto, the plaint was presented to the Senior Civil Judge, Sargodha on Ist October, 197:'. The Courts below have allowed the petitioner benefit of section 14 of the Limitation Act, 1908 by excluding the period between 28th September, 1977 and 1October, 1977 and held the suit to be within time.
4. In support of this petition, learned counsel for the petitioner has made two-fold submissions; firstly that as the plaintiff/respondent was not a tenant and not sought to pre-empt the sale on the basis of tenancy he could not have filed the suit before the Collector and while doing so actedst negligently and as such the time spent in Revenue Court for prosecuting the suit could not be excluded; secondly that in any case the time between 28th September, 1977 when the Collector returned the plaint and Ist October, 1977 when it was presented in the Civil Court cannot be excluded as there was no explanation as to why the respondent withheld plaint and did not present it before the proper Court during those three days.
5. In reply, learned counsel for respondent has submitted that in view of ambiguous language employed in of the Martial Law Regulation No. 115 as amended by the Law Reforms (Amendment)
Ordinance, 1976 there was confusion as to the forum before which suits a pre-emptor where the land was occupied by a tenant, were to be filed which was resolved only in 1977 by the judgment of this Court in Aftab Hussain v. Ali Ahmad PLD 1977 Lah. 1064 and as such the Courts were justified in condoning the delay in filing the suit about of Law.
6. As is obvious from the above, there is no dispute as regards the facts. The only question is therefore as to whether the Courts below were allowing benefit it to the respondent/plaintiff of the section 14 of the Limitation Act, 1908 which reads "In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceedings whether in a Court of first instance or in a Court of Appeal against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which from defect of jurisdiction, or other cause of a like nature, is unable to entertain it."
7. From the language of the above-cited provision, of the Limitation Act, it is also to be seen that the plaintiff is not entitled to have the period spent in a wrong forum as a matter-of course excluded. In order to avail of this concession it must be shown that the suit before the wrong Court was prosecuted in good faith and with due diligence. "Good faith" has been defined in section 2(7) of Limitation Act, 1908 as meaning that nothing' shall be deemed to be done in good faith which is not done with due care and attention. The other expression "due diligence" has received judicial interpretation in many precedents, all of which need not be mentioned and reference to Abdul Ghani v. Ghulam Sarwar (PLD 1977 Supreme Court 102) would suffice. It has been authoritatively laid down by the Supreme Court of Pakistan in the precedent case that the provisions of section 14 would only be satisfied if the plaintiff could show that there was some confusion about the state of law which occasioned filing of the suit before a wrong forum. The mistake of a counsel was by itself held not to be a ground for condoning the delay.
8. Viewed in the above perspective, it becomes evident that the Courts below have acted illegally in condoning the delay in filing suit by excluding the -period spent in prosecuting the suit before the Revenue Court Para. 25 of the Martial Law Regulation No. 115 on the face of it applies only to those cases where pre-emptor was a tenant and files a suit on the basis of his tenancy. The right of pre-emption was granted to the tenants by amending para. 25 of Martial Law Regulation No. 115 and not by making any amendment in the Punjab Pre---emption Act, 1913 then in force. Para. 25(2) of Martial Law Regulation deals with the right of the tenants and regulate the relationship, inter alia, between the landlords and tenants and not with any third person. In these circumstances, I am unable to understand as to how could there be any confusion as regards the forum of filing a suit under Punjab Pre-emption Act, 1913. Learned counsel for the respondent has emphasized that in para. 25 of the Land Reforms Regulation, 1972, words used are "comprised in any tenancy" and not "in his tenancy". The distinction pointed out by the learned counsel appears to be specious. Use of "a" and not "his" could not create any doubt in the mind of man of ordinary prudence that pre- emption suit in respect of land under cultivation must be filed before the Revenue Court.
9. Be that as it may, there was no material produced before the Courts below on the basis of which they hold that there was general state of confusion about law applicable while filing the suit before the Revenue Court. Respondent and his learned counsel acted with due diligence. Strangely enough, learned District Judge has himself noted that the application under section 14 of the Limitation Act, 1908 was not accompanied by an affidavit yet this omission was held to be immaterial. This approach of the learned District Judge cannot be upheld. It was the obligation of the respondent to have produced some evidence especially when the Court had itself framed an issue on the subject. The authority of the Supreme Court in Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102 has been misread and misapplied by the Courts below which has rendered their decision to be arbitrary and caparious. Therefore, there was no justification for the Courts below to have granted indulgence to the petitioner by excluding the time spent in prosecuting the suit before the Revenue Court as the aforesaid suit had not been shown to have been filed after due diligence and in good faith.
In view of what has been stated above; the impugned judgment and decree are set aside and suit of the respondent is dismissed as being barred by time.
No order as to costs.