1. By this common judgment I propose to dispose of both these appeals as common question of law in respect of limitation is involved.
2. The brief facts of the case are that the respondent Sufia Khan was divorced by appellant Qurban Ali Khan on 16-7-1986. The respondent filed a Suit No. 1614 of 1986 for recovery of dowery articles or in the alternative recovery of the cost thereof amounting to Rs.90,000 while the appellant Qurban Ali filed Suit No. 144 of 1987 for recovery of Rs.92,737 against the respondent. Both suits were consolidated when the suit of the appellant Qurban Ali Khan was dismissed while the suit of the respondent Sufla Khan was decreed. Qurban Ali appellant preferred Appeals Nos. 18 and 19 of 1989 against the said judgment of IInd Senior Civil Judge, Karachi when Appeal No. 18 of 1989 was dismissed while Appeal No. 19 of 1989 was partly modified by the learned Second Additional District Judge, Karachi Central against which judgment IInd Appeals Nos.2 and 3 1990 were preferred before this Court and the said appeals were disposed of by my learned brother Syed Abdur Rehmap Shah, J. (as he then was) on 4-9-1991: The operative part runs: "Both these circumstances whereas I allow both the IInd Appeals Nos.2 and 3 of 1990 and set aside both the impugned judgments of Additional District Judge, I direct that both 1st Appeals be returned by District Judge for a presentation to proper Court. It will be open to respondent to take the plea of limitation when these appeals are presented before this Court."
3. The R&P of the Appeals Nos. 18 and 19 of 1989 and lower Court record were received by the District Court, Karachi Central on 26-9-1991. The appellant's learned counsel took the appeals on 2-11-1991 from the Office of District Judge, Karachi Central as in the meanwhile pecuniary jurisdiction of this District was enhanced from Rs.50,000 to Rs.One lac who in his turn transferred the same to 1st Additional District Judge, Karachi Central on the same day. The 1st Additional District Judge, Karachi, Central after hearing learned counsel for parties dismissed the both appeals on the point of limitation holding the same to be time-barred therefore the present IInd Appeals Nos.4 and 5 of 1992 have been preferred before this Court.
4. Mr. Abdul Majeed Khan, learned counsel for the appellant, has argued that in view of the circumstances stated in. The affidavit of the appellant and his counsel Mr. Khalid Humayoon "sufficient cause for condoning the delay in filing the appeals has been shown and the alleged mistake of the counsel was bona fide and he had acted deligently in pursuing the proceedings before the Court. He has placed reliance upon AIR 1937 PC 276, PLD 1982 Kar. 749, PLD 1963 Azad J&K 38, 1982 SCMR 1105, PLD 1974 SC 22, 1983 CLC 23, PLD 1975 Azad J&K 149, PLD 1960 Lah. 801, 1992 SCMR 424 (in fact the judgment is of Azad Jammu and Kashmir), 1995 SCMR 584 and AIR 1926 Mad. 178 in support of his contentions.
5. Mr. Muhammad Anwar Tariq, learned counsel for the respondent has argued that the appellant did not file application for condonation of delay along with appeals but filed the same on 6-11-1991 and that the respondent has denied in her counter-affidavit the statement of the appellant and his counsel made in the affidavits and thereby no sufficient cause within the meaning of section 5 of the Limitation Act and no bona fides and due diligence in pursuing the proceedings have been shown within the meaning of section 14 of the Limitation Act by the appellant in presenting the appeals, therefore, the impugned judgments passed by the learned 1st Additional Sessions Judge, Karachi, Central are legal and no interference in these IInd Appeals was called for. He has placed reliance upon 1976 SCMR 283, PLD 1977 SC 102, 1984 SCMR 106, 1985 SCMR 1003, 1988 SCMR 3, 1989 SCMR 1498, PLD 1991 SC 104 and PLD 1993 Quetta 88 in support of his contentions.
6. There is no dispute about the facts stated above. One would find a complete answer to the contentions of the learned counsel for the appellant in a case of Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102 whereas their Lordships of the Supreme Court at page 106 have observed: "In order to overcome these self-induced difficulties the petitioner has tried to throw the blame on the District Court and on the respondent's Advocate. Thus, for example, he has pleaded in his petition that it was the act of the District Court 'which contributed towards expiry of limitation for filing appeal in the High Court'. We were astonished by this plea and even more by the fact that it was pressed because it is not Mr. Bilal's case that the petitioner was an infant or a lunatic whose interests the Court- might have been under some duty to protect. But, according to Mr. Bilal, the petitioner had been misguided by the District Court because after admission the appeal had been transferred from the Court of the District Judge, Multan to that of an Additional District Judge, Multan, therefore, the principle actus curiae nemonim gravalsit was attracted. The argument is fallacious because the transfer from the Court of the District Judge to that of an Additional District Judge was by an administrative order and because his transfer was after the petitioner had deliberately filed his appeal in the wrong Court. And, in any case, .The attempt to invoke the principle actus curiae nemonim gravalsit assumes that the Court was under an obligation to advise the appellant how to prosecute his remedies again-- the respondent, we regret to say that this assumption is against reason. Mr. Bilal then pointed out that the District Judge had granted an interim injunction to the petitioner. But, in the first place, this Was after the presentation of the appeal. Secondly, as the interim order goes not refer to the question of the valuation of the appeal, in the circumstands we are satisfied that the petitioner had not drawn the attention of the District Judge to the fact that he had valued his claim in the trial Court at a sum which far exceeded Rs.25,000. No doubt, on a perk1sal of the memorandum of appeal, if the facts had been correctly stand, & District Judge would have realised that the appeal was beyond the pecuniary jurisdiction of his Court. This would also have been apparent from a casual perusal of the judgment under appeal, therefore, it is obvious that the learned District Judge granted an injunction in a most reckless manner, and the grant of injunctions in this manner cannot but lead to the increase of frivolous litigation. Be that as it may, it was the respondent who was aggrieved by the injunction obtained by tile petitioner, and it does not lie in the mouth of the petitioner to comply of the fact that he had successfully obtained an illegal order from the Court.
7. Mr. Bilal's next submission was that the respondent had misguided the petitioner, because the respondent had received notice of the petitioner's appeal before the expiry of the period of limitation for filing the appeal in the High Court and if the respondent had objected immediately to the maintainability of the appeal, the petitioner would have been able to apply to the District Court for the return of his appeal and for its representation to the High Court within the statutory period of limitation. But as the respondent had challenged the District Court's jurisdiction only after the expiry of the period of limitation, according to Mr. Bilal, the respondent had misguided the petitioner. This extraordinary submission is based on the assumption that defendants are under an obligation to give advice about the manner in which claims against them are to be prosecuted. Apart from the fact that this assumption is against reason, submission is self-defeating because there cannot be different standards for plaintiffs and defendants, and if the petitioner was not at fault for filing his own appal in the wrong Court, by the same standard, the respondent coot be blamed for not objecting immediately to what the petitioner did.
8. 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 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 Ranking in Kunwar Rajendra Bahadur Singh v. R.I Rajeshwar Bali and others AIR 1937 PC 276 . . . . . . .In apply section 5 (of the 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 attentions'. 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 Ranking 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 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 presentation of the appeal in the District Court was an act of gross negligence."
9. The learned counsel for the appellant has placed reliance upon Raja Muhammad Ayoob and others v. Muhammad Aijaz and others 1982 SCMR 1105. The facts of the cited case are quite different and distinguishable to the facts of the present case as in the said cited case there was no doubt that there was considerable amount of uncertainty during those days with respect to the forum where the revisions could be filed as powers of revision were taken away from the Settlement commissioner through two Notifications, therefore, the party who wanted to file revision after the abolition of the powers of the Settlement Commissioner should have in view of the Notification aforementioned, and has to ascertain as to which was the forum competent to have jurisdiction. In the cited case there was definite uncertainty in about the forum where the revisions could be filed and in the said circumstance the ignorance of the learned counsel for the respondent about the correct forum in which revision petition ought to be filed was considered to be not negligent act and was held to be bona fide mistake falling within the purview of section 14 of the Limitation Act. In the instant case rule 18 of the West Pakistan Civil Courts ordinance, 1962 clearly mentioned without any doubt that the appeals in case where the amount exceeded Rs.50,000 would lie before the High Court therefore, the said authority cited has no application to the facts of the present case. Next authority which has been relied upon is Masood Ahta and 2 others v. United Bank Limited 1992 SCMR 424. The cited cue on the contrary supports the contentions of the learned counsel for the respondent as in the said case their lordships of Supreme Court have held that although section 14 of the Limitation act would not apply to appeals but its content could be made applicable by analogy so that if a litigant showed that he has been in good faith prosecuting another civil proceeding within the meaning f if section 14 of the Limitation Act such circumstances might be treated as "sufficient cause for condonation of delay within the meaning of section 5 of the Limitation Act". It was further observed in the judgment at page 428 that: "This takes us to the question whether the appellant can successfully urge that the appeals 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 judgment 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. "
10. The learned counsel for the appellant has also placed upon Sheereen and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 544 The facts of the cited case are quite different and distinguishable to the facts p f the instant case as in the cited case the value of the suit for the purpose of court-fee and jurisdiction was neither incorporated in the decree-sheet nor explicitly shown in the judgment of the trial Court, therefore, the counsel filed appeal in the District Court which was considered to be mistaken advice of the counsel. Their lordships of the Supreme Court in para. 6 at page 591 have observed: "We may observe that filing of appeal in 'a wrong Court on account of mistaken advice tendered by the counsel canvassed on behalf of the appellants for condonation of delay by itself would not attract section 5 but when the litigant and the counsel have acted with due care and caution and their conduct does not smack' of negligence, the institution of the appeal in the wrong forum may constitute a 'sufficient cause' within the meaning of section 5 for condonation of the delay."
11. In the instant case there was not ambiguity regarding the pecuniary jurisdiction of the Court in view of rule 18 of the West Pakistan Civil Courts Ordinance, 1962 and further that facts stated showed that the appellants and his counsel were negligent in their conduct so much so that they could have taken back the appeals from the District Court for their presentation to the High Court or when the appeals were returned to the District Court, Karachi Central the same could have been taken soon after the same were received for their presentation to proper Court but they did not act with due care and caution so as to constitute sufficient cause within the meaning of section 5 of the Limitation Act for condonation of delay.
12. In view of the aforesaid decisions of the Supreme Court of Pakistan I do not consider necessary to cite the decisions of the other Courts as the point involved in the instant case stands concluded by the aforesaid decision of the Supreme Court, rest of the case-law cited by the learned counsel for the appellant would not be of any avail. In the circumstances the appeals have no merits, which are hereby dismissed as being time-barred.