JUDGMENTMALIK MUHAMMAD QAWUM, J.- This petition under section 115 of Code of Civil Procedure seeks revision of the judgment and decree dated 6.4.1988 of the learned Additional District Judge, Gujranwala whereby the appeal filed by the appellant against the judgment and decree of the learned trial court dated 25.11.1980 was dismissed as being barred by the.
2. In order to appreciate the contentions of-the learned counsel for the parties reference to certain facts is necessary which are that on 25.11.1975 a suit Was filed by the present petitioner seeking to pre-empt sale of land measuring 162 kanals- 2 marlas situated in village Naurozepur, Teh*;| Hafizabad District Gujranwala by Amer Hayat to the respond^; ostensibly for a sum of Rs. 90,000'-.
The suit was valued for the purposes of court fee and jurisdiction at Rs. 24.300 - which was dismissed by the trial court bn 25.11.1980. Aggrieved by that decree an appeal was filed by the petitioner before this Court being RFA No. 47-8 f which was heard without any objection as to its competency the appeal was accepted by a Division Bench of this Court on 27.1.1985.
3. The decision of this Court was challenged by the respondent by filing Civil Appeal No. 25 of 1983 which was allowed by the Hon'ble Supreme Court on 2.5.1987 on the ground that as the valuation for the purposes ol court fee and jurisdiction had been fixed in the plaint at Rs. 24,300/- the appeal should have been filed in the District Court and as such the appeal filed by the petitioner in the High Court (RFA No. 47/81) was not competent. As a consequence, the Supreme Court ol Pakistan after setting aside the judgment and, decree of this Court directed that the memorandum of appeal be returned"to the present petitioner for presenting it before the appropriate Court.
4. Pursuant to that order the memorandum was returned to the petitioner who presented it before the District Court on 31.5.87 alongwith an application under sections 5 and 14 of Limitation Act. 1908 seeking exclusion for the spent by him in prosecuting the appeal before this Court, where it had been filed under a honufute mistaken advice and with due indulgence. This application was rejected by the learned Additional District Judge on 6.4.1988 and the appeal was dismissed being barred by the.
5. In support of this petition Mr. Muhammad Yaqub Sindhu. Advocate has contended that RFA No. 47/81 was filed by the petitioner under a bonafide mistaken ReV.C. 151 advice rendered by his cdunsel that the appeal would lie before this Court and as such the petitioner is entitled to the exclusion of the spent by him in prosecuting the matter before the High Court. He has relied upon pronouncement of Supreme Court of Pakistan in Sherin and 4 others I"s. Fazctl Muhammud and 4 others ( 1095 SCMK 584) as also on an earlier judgment of the Supreme Court in Nazar Muhammad am/ others Vs. Mst. Shahzada Begum and another (PLD 1974 SC 22).
6. In reply Mr. Atta-ul-Mohsin Lak, learned counsel representing the respondent argued that as in the plaint the petitioner himself had fixed the valuation for the purposes of jurisdiction at Rs.
24,300/- question of having bonatide mistaken impression does not arise and that the first appeal was filed in this Court w ithout am justification and the petitioner having not acted bonafidely is not entitled to am indulgence. He pointed out that while filing the first appeal before this Court the petitioner had fixed the valuation of the appeal at Rs. 80,000/- without any reason or justification.
Learned counsel further mentioned that in any case at the the when the appeal Was presented before the High Court, the limitation for filing it in District Court had expired and consequently also even if the period spent in prosecuting the appeal before this Court is excluded the appeal would be barred by 11 days. Reliance has been placed by the learned counsel on Islam Din Vs. Allah Nawaz and others (1988 SGMR 2), Mst. Mahmooda Begum and others Vs. Major Muhammad Ishaq and others (1984 SGMR 890), Abdul Ghani Vs. Mst. Musarrat Rehana (1985 CLC 2529) and Abdul Ghani Vs. Ghulam Sarwar (PLD 1977 S.C. 102).
7. Having heard the learned counsel for parties at length and perused the record as also going through the case law I am of the view that in the circumstances of the case the learned Additional District Judge was dearly in error in refusing to condone the delay in filing the appeal. The first thing to be noted in this behalf is that at the the when the appeal was filed in this court no objection was raised by the office. Not only that but even subsequently at the the of hearing the respondent too did not object to the maintainability of the appeal but the two learned Judges of this Court heard the appeal and accepted it on merits. It was only for the first the before the Honourable Supreme Court that an objection to the competency of the first appeal before this Court was raised by the respondent which was allowed. In these circumstances it cannot be said that the appellant by filing the appeal before this Court had acted malafidely or with contumacy.
8. It has been pointed out by the learned counsel for the petitioner on an objection raised by the respondent the trial court while deciding the suit had held that the suit was not properly valued for the purposes of court fee and jurisdiction. In these circumstances if the .Learned counsel representing the respondent has fixed the valuation of the appeal at Rs. 80,000/- that is the price at wich according to the petitioner the respondent has purchased the property the leamed counsel cannot be said to have acted in contumacious disregard of the law.
9. The question as to whether the mistaken advice rendered by a counsel constitutes sufficient cause for condonation of delay for such cause has been subject matter of dispute before various Courts for a long period. Earlier the trend of authorities was that the mistaken advice of a counsel per se is not a ground for seeking condonation of delay, unless it is shown that the counsel has acted with due diligence and was misled into filing the appeal before the wrong forum on account of some confusion in law. The situation appears to have been dramatically changed by the judgment of the Supreme Court in Sherin's case supra where the Hon'ble Supreme Court has laid down that if the litigant engages a counsel who commits a mistake due to carelessness by filing the appeal before thf wrong forum which is not attributed to any conduct of the parties themselves the client cannot be penalised. The following observations in Sherin's case was instructive and may be reproduced with advantage.
"In the present case record showed that out of five appellants four were utterly illiterate. This was inferable from the factum of thumb- impressions put by them on the documents forming part of the. Trial Court's file. Fifth appellant was riot an educated person and presumably could only write his name, ln our systeme of law, what a litigant, placed in the situation, as^the appellants were, had to do for redress of his grievance, through a Court of law, was to engage a counsel. This the appellants did. It seems that they did not make contribution, in the institution of the appeal in the.
District Court. There was no allegation that they stood to gain thereby or were guilty of any mala fide conduct. The filing of appeal in the District Court, was entirely attributable to the carelessness of the appellants' counsel. He represented them in the trial Court, and was not' unaware of the amount of the court-fee paid on the plaint by the respondents, on the objection of the appellants', which ' determined the forum of appeal. He also appeared for the appellants in the High Court, lt seems that he . Was a Senior Advocate. Of late, .Unfortunately there has been a tendency of some decline in the proficiency of the members of this noble profession, practising at the Bar. It is high the that the Bar Councils in the country should take notice of it and adopt measure to arrest this tendency. If the law has to march with the changing the, some restraint needs to be exhibited by the Courts, in imposing too large a burden on a litigant, for the lapses of his counsel".
The position in the present case appears to be the same as the sole appellant before this Court in RFA No. 47 of 198l was an illiterate person. He engaged Mr. C.A.Rehman who is a senior counsel practicing oh the civil side. Due to his mistaken advice the appeal had been filed before the High Court and the appellant paid the court fee on valuation of the appeal. The petitioners had not derived any benefit out of this mistake but on the other band they appear to suffer a disadvantage inasmuch as if the appeal had been valued at Rs. 24300/-, which was found by the Supreme Court as correct .Value, no court fee was required to be paid on the appeal at all, in view of Punjab Pre- emption Act and Alienation Act that agricultural land so long as it remained occupied for agricultural purposes was to be treated as agricultural land irrespective of its location in town or village. If it is abandoned as agricultural land then question would be whether it is village immovable property or urban immovable property, ln my humble view it is at that juncture that the colour of the locality would be relevant and not otherwise.
10. The upshot of the above discussion is that there is no merit in this appeal. The same is dismissed with costs.