1. ' By this order I propose to dispose of Civil Miscellaneous Application No,951 of 1987 filed by the appellant under section 5, read with section 14 of Limitation Act 1908 for condonation of delay in filing the above noted appeal. The brief facts giving rise to filing of application under discussion are that First Class Suit No, 61' of 1989 was filed by Mst. Inayat Khatooii and another v. Province of Sindh and others which contained the following prayers:--
(A) That this Hon'ble Court will be pleased to declare that the previous private old standing partition effected by the forefathers of the plaintiffs and defendant No,4 which is being acted upon since last 60/70 years is valid and binding on the plaintiffs and defendant No,4.
2. ' OR IN THE ALTERNATIVE ' The Hon'ble Court be pleased to declare that the plaintiffs and defendant No,4 are co-owners and co-sharers in every inch of the suit survey number 240 of Deh Bhan Saeedabad
(B) That this Hon'ble Court be also pleased to declare that the orders passed by the defendants Nos.3 and 4, are illegal, void, bad in law, mala fide without jurisdiction, against the natural justice and not binding on the plaintiffs.
(C) That this Hon'ble Court be further pleased to declare that the defendant No,4 was and is not competent to sell or lease out any area of the suit land and sale-deeds sale agreements/lease deeds executed by him in favour of defendants Nos.5 to 28 are illegal, bad in law, ineffective and are not binding on the plaintiffs, and also do not create any rights, title or interest in favour of the defendants Nos. 5 to 28.
(D) That the Hon'ble Court will be pleased to cancel all the sale deeds lease agreements or lease deeds executed by defendant No,4 on different dates in favour of defendants Nos,5 to 28, mentioned in para. No:16 of the plaint.
(E) That this Hon'ble Court may further be pleased to direct the defendants Nos.4 to 28 to hand over vacant possession of their respective plots/portions to the plaintiffs.
(F) That this Hon'ble Court may also be pleased to grant injunction against the defendants Nos.4 to 28 restraining them from selling, leasing out or disposing of any portion/area of the suit land viz. Survey Number 240 of Deh Bhan Saeedabad or raising any construction on it.
(G) The costs of the suit may be awarded to the plaintiffs.
(H) Any other relief which this Hon'ble Court may deem fit and proper may also be granted to the plaintiffs.
3. ' The suit was decreed by the senior Civil Judge Dadu vide judgment dated 19-4-1987 and decree pursuant to such judgment was prepared on 2-5-1987. The appellants applied for certified copy of the judgment and decree on 22-4-1987 and copy of the judgment and decree was supplied to them on 16-5-1987. Being aggrieved by the said judgment and decree an appeal was filed by the appellants before the. District Judge, Dadu on 23-6-1987 without affixing any court-fee thereon. An office note was put on the appeal presented by the appellants before the District Judge, D, whereby inter alia appellants were directed to pay the court-fee amounting to Rs,2,900 and the said Office note further stated that the appeal is in time and within the jurisdiction pf the Court. The office note further indicates that the Advocate for the appellants was ordered to be heard by the District Judge Dadu on 30-6-1987. From the record it appears that the required Court fee was paid on 29-6-1987 and for all practical purposes, under the law, the appeal before the District Judge Dadu is to be deemed to have been presented on 29-6-1987. There is yet another office note which appears on the memorandum of appeal filed by the appellants in the Court of District Judge Dadu which is dated 22-8-1987 and is to the following effect:-- "R. Submitted.
4. ' It is submitted that while perusing the record and proceedings of the lower Court, the plaint is valued at Rs,85,000. Under these circumstances it is requested that this Court (District Judge) has jurisdiction to hear the civil appeal up to 50,000 vide High Court Sindh Karachi Notification No, G.A.Z./XVI-A-127(1), dated 15th September, 1981. Therefore, the Advocate for the appellant be re- heard on the point of jurisdiction. For Orders 22/8 (Sd.)
5. ' Advocate to be heard.
6. ' Mg............ 9-9-1987 (Sd.) 29.8.
7. ' From the aforesaid office note it is apparent that on perusal of the record and proceedings of the lower Court it was revealed that the plaint is valued at Rs,85,000 and vide Notification No, GAZ/XVI- A-127(1); dated 15th September, 1981, issued by the High Court of Sindh, Karachi, the Court of District Judge had pecuniary jurisdiction to hear civil appeal up to the value of Rs,50,000 only and as such the learned Judge passed the order on the said office note whereby the Advocate for the appellants was to be heard on 9-9-1987. From the diary sheets of the appeal, during its pendency before the District Judge Dadu, which has been filed by one of the legal heirs of deceased respondent No,5 along with his counter-affidavit to the application under discussion it transpires that the Advocate for the appellants, on 9-9-1987, submitted an application for adjournment which was granted and the matter was adjourned to 19-9-1987 on which date, another application for adjournment was filed by the Advocate for the applicant and the matter was adjourned to 30th September, 1987. The Advocate for the appellant appeared before the District Judge Dadu on 30- 9-1987 when the District Judge, Dadu in view of lack of pecuniary jurisdiction ordered for return of the memo. Of appeal for presentation before the Court having jurisdiction in the matter. The Advocate for the appellants, however, instead of taking back the memo. Of appeal from the District Judge, Dadu on the same date received the same from the Court of District Judge, Dadu on 4-10- 1987. After receiving the memo. Of appeal from the Court of District Judge, Dadu, the same was presented in this Court on 15-10-1987. Realizing the bar of limitation, the appellant have filed present application on 19-10-1987 under sections 5 and 14 of the Limitation Act for condonation of delay on ground of exclusion of time spent by the appellants in pursuing the matter before the District Judge Dadu from 23-6-1987 to 4-10-1987.
8. ' I have heard Mr. Ejaz Ali Hakro learned counsel for the appellants and Mr. Abdul Sattar Shaikh learned counsel appearing for Respondents Nos.5 and 6. It has been contended by Mr. Ejaz Ali Hakro, Advocate for the appellants that judgment in first class Suit No,61 of 1985 was passed by the trial Court on 19-4-1987 and the decree was framed on 2-5-1987. Application for certified copies was filed by the appellants on 22-4-1987 and the same were supplied on 16-5-1987 thereafter under mistaken belief of law, the appeal was filed by the appellants before the District Judge Dadu on 23-6-1987 which was returned to the appellants for presentation to proper Court on 4-10-1987 under an order passed by the District Judge Dadu on 30-9-1987. According to Mr. Ejaz Ali Hakro, the appellants filed the present appeal on 15-10-1987 and the delay in filing the appeal which has accursed between 30-9-1987 till 14-10-1987 has been explained by the appellants by filing a Medical Certificate in respect of illness of appellant No,1 from 27-9-1987 till 14-10-1987. Further, contention of learned counsel for the appellant is that pecuniary appellate jurisdiction of the District Court has been changing from time to time and amendments in this regard have not been notified in the official Gazette and as such the litigant public and even the Advocates, sometimes, are ignorant of the actual appellate pecuniary jurisdiction of the District Courts. It has been asserted by the learned counsel for the appellants that the appellants that the appellants have been perusing their remedy in good faith before the Court of District Judge dadu, and as such time spent by the appellants in perusing their remedy before the Court of District Judge Dadu is to be excluded in computing the period of limitation for filing of this appeal. In support of his contention, learned counsel for the appellants has relied on the case of Agricultural Development Bank of Pakistan v. Noor Muhammad and 2 others reported in PLD 1985 Quetta 74.
9. ' On the other hand Mr. Abdul Sattar Shaikh, learned counsel appearing for the respondents Nos.5 and 6 has vehemently opposed the grant of this application and has contended that for condonation of delay in filing the appeal under section 5 of the Limitation Act not only sufficient cause is required to be shown but delay of each and every day is to be explained. As to exclusion of time spent by the appellants in pursuing their remedy before the District Judge Dadu, contention of Mr.Abdul Sattar Shaikh, Advocate is that unless due diligence and good faith is demonstrated by the appellants time allegedly spent by the appellants in pursuing their remedy before the District Judge D cannot be excluded. To canvass his proposition in respect of lack of good faith and diligence, the learned counsel for respondents Nos.5 and 6 has taken me to the office note on the memo. Of appeal presented before the District Judge Dadu and the diary sheets of the appeal as long as it remained pending before the Court of District Judge Dadu. Mr.Abdul Sattar Shaikh Advocate for respondents Nos.5 and 6 by referring to the said notes and diary sheets has contended that at least on 22-8-1987 the appellants and his counsel became aware of the notification dated 15-9-1981 whereby the pecuniary jurisdiction of District Judge Dadu did not exceed Rs,50,000 yet the appellants kept on dragging the matter before the District Judge Dadu and although the memo. Of appeal was ordered to be returned for presentation to proper Court by the District Judge Dadu. On 30-9-1987, yet the present appeal has been presented before this Court on 15-10-1987. In view of the circumstances of the case, learned counsel for respondents Nos.5 and 6 has vehemently contended that the appellants have failed to demonstrate due care and diligence and their bona fides in pursuing their remedy before wrong forum. As to the delay which has accrued in filing the appeal before this Court between 30-9-1987 till 15-10-1987 learned counsel for respondents Nos.5 and 6 submits that assuming for the sake of arguments but without conceding it is admitted that the appellant No,1 was sick between 27-9-1987 and 14-10-1987 yet it is not the case where there is only one appellant and there being as many as 27 appellants any one of the other appellants could have received the memo. Of appeal from the Court of District Judge, Dadu on 30-9-1987 and would have presented the same before this Court without any delay. In support of his contention, learned counsel for respondents Nos.5 and 6 has cited the following case law:--
(1) Abdul Ghani v. Ghulam Sarwar, reported in PLC 1977 SC 102.
(2) Tanveer Jamsheed and another v. Raja Ghulam Haider, reported in 1992 SCMR 917.
(3) Chief Administrator of Auqaf and others v. Muhammad Ramzan and others, reported in PLC 1991 SC 102.
(4) Islam Din v. Allah Nawaz and others, reported in 1990 SCMR 768.
10. ' In order to appreciate the arguments advanced by the learned counsel for the parties I deem it advantageous to reproduce sections 5 and 14 of the Limitation Act, 1908:--- ' Section 5. Extension of period in certain cases.--Any appeal or application for a revision or a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed, therefore, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.
11. ' Section 14. Exclusion of time of proceeding bona fide in Court without jurisdiction.--(1) 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 the first instance or in a Court of appeal, against the defendant, shall be excluded, 'where the proceeding is bounded 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.
12. Section 5 of Limitation Act, 1908 is general in nature and for any sufficient cause delay in filing an appeal or application for revision or for review of judgment or for leave to appeal or any other application to which section 5 may be made applicable by or under any enactment for the time being enforced may be condoned by the Court. But for seeking condonation of delay under section 5 of the Limitation Act delay of each and every day is to be satisfactorily and sufficiently explained by a litigant seeking condonation of delay under section 5 of the Limitation Act, 1908. Section 14 of the Limitation Act, 1908. Specifically deals with a situation where the litigant has been pursuing his remedy before a wrong forum but unless due diligence and care and good faith in pursuing the remedy before a wrong forum is demonstrated by a litigant, time spent in pursuing the remedy before a wrong forum cannot be excluded. Applying the above test, on the facts of this case it may be noted that even if the appeal before the Court of District Judge, Dadu was filed by the appellants under wrong advise of the counsel or under mistaken belief that Court of District Judge, Dadu had jurisdiction to entertain the same the lack of due care and diligence and bona fides on the part of the appellants is manifested from the manner in which the appellants have conducted themselves in pursuing their remedy before the wrong forum. The certified copies of the judgment and decree were obtained by the appellants on 16-5-1987 and the appeal before the District Judge was filed on 23-6-1987 without affixing any court-fee which was,. After objection by the office of Court of District Judge, was affixed/paid on 29-6-1987 and as such under the law, the appeal shall be deemed to have been presented before the District Judge on 29-6-1987 i,e, after 43 days (approximately) whereas under Article 152 of the Limitation Act, the appeal under section 96, C.P.C., 1908 to the District Judge is required to be filed within 30 days. No explanation for delay of 13 days in filing the appeal before the District Judge has been furnished by the appellants. In this view of the matter assuming for the sake of arguments that the District Judge Dadu had pecuniary jurisdiction to entertain the appeal, the same would have been barred by Limitation.
13. ' I have carefully examined and perused the noting by the office of the District Judge, Dadu, on the memo. Of appeal presented before it and have observed that the appeal before said Court was filed on 23-6-1987 without payment of any court-fee which was ultimately paid on 29-6-1987. The Office note dated 23-6-1987 shows that the appeal has been treated to be within the jurisdiction of the Court, but on 22-8-1987 there is available another note of the office of District Judge Dadu wherein it has been. Categorically stated that in view of this Court's notification dated 15-9-1981, the Court of District Judge Dadu has no pecuniary jurisdiction to hear the said appeal and that is why the learned District Judge Dadu passed an order for hearing the Advocate for the appellant on 9- 9-1987 and as such in my view, the learned counsel for the appellants became aware of lack of pecuniary jurisdiction of the District Judge Dadu on 22-8-1987. The learned counsel appearing for the appellants before the District Judge Dadu, instead of immediately taking back the memo. Of appeal to present the same before the proper Court took as many as two adjournments on 9-9- 1987 and 19-9-1987 and ultimately the learned counsel for the appellants appeared before the District Judge, Dadu when the order for return of memo. Of appeal for presentation to this Court was passed by the District Judge, Dadu. Lack of bona fides and due and diligence and care is further demonstrated from the fact that the memo of appeal was not taken back for presentation to proper Court on the same day but the Advocate for the appellants received back the memo. Of appeal from the Court of District Judge on 4-10-1987. The explanation attempted 'to be provided by the appellant for not presenting the appeal before this Court immediately on 4-10-1987 also does not appear to be plausible and confidence inspiring inasmuch as in case the appellant No,1 was taken ill between 27-7-1987 to 14-10-1987 there were number of other appellants available to present memo of appeal before this Court after having received the same from the Court of District Judge, Dadu but no acceptable explanation for not filing the memo. Of appeal before this Court after 4-10-1987 by co-appellants has been furnished.
14. ' Now I will advert to the case law cited by the learned counsel appearing for the parties. The learned counsel for the appellants has placed his reliance on the case of Agricultural Development Bank of Pakistan v. Noor Muhammad and two others (supra) in support of his contention that provision of sections 5 and 14 of the Limitation Act, 1908 should be construed liberally to protect bona fide applicant from consequence of some mistake made by his advisor in presenting his claim. In the cited case also the Hon'ble Judges have observed that sufficient cause as contemplated by section 5 of the Limitation Act, should receive a liberal construction so as to advance substantial justice, but at the same time the Hon'ble Judges in the cited case have held that liberal construction of sufficient cause as contemplated by section 5 of the Limitation Act for excluding time is to be given when no negligence or inaction nor want of bona fide is imputable to the applicant. It has further been held in the cited judgment while dealing with section 14 of the Limitation Act, 1908 that ignorance of law is not only no excuse but is also not a sufficient cause for excluding the period spent by a litigant in pursuing his remedy before a wrong forum. It has further been held by the Hon'ble Judges that no general rule for condonation could be laid down and each and every case is to be disposed of on its own facts.
15. True guideline for a Court in exercise of discretion to condone delay is whether applicant had acted with reasonable diligence and care and in good faith, and therefore, Courts should show indulgence and condone delay where time had been lost by prosecuting a remedy before a wrong forum on account of bona fide mistake or error committed by counsel, which a reasonable and prudent man despite exercising due diligence and caution might have committed. From the facts of the case in hand there is definitely lack of due diligence and care and bona fides on the part of the appellants. Furthermore, a valuable right has accrued to the respondents under the bar of limitation and even if the delay in filing the appeal has occurred on account of wrong advice of the counsel, the remedy of the appellants is against his advocate under whose wrong advice they acted and the valuable right which has accrued to the respondents cannot be taken away in the facts and circumstances of this case.
16. ' The case law cited by the learned counsel for the respondents is fully applicable to the facts of this case. In the case of Abdul Ghani v Ghulam Sarwar (supra) it has been held by the Hon'ble Supreme Court of Pakistan that good faith appearing in section 14 of the Limitation Act, 1908 has been defined in section 2(7) of the Limitation Act, 1908 to mean anything which is done in good faith and which is done with due care and attention. Section 14 of the Limitation Act permits exclusion of time only for proceedings prosecuted in good faith before a wrong forum, and therefore, in order to make out a case for exclusion of time spent while pursuing the remedy before a wrong forum appellant must demonstrate that he has acted in good faith in prosecuting his appeal in a wrong Court. The judgment cited by the learned counsel for the respondents supports the contention of the learned counsel with full force.
17. ' In the cases of Islamuddin v. Allahnawaz. And others (supra) and the Chief Administrator Auqaf v.
18. Muhammad Ramzan and others (supra), the Hon'ble Supreme Court referring to the case of Abdul Ghani v. Ghulam Sarwar (Supra) have again held that provisions of section 14 can been pressed into service only when a party prosecuting his case in good faith in a Court for lack of jurisdiction or other cause of allied nature is unable to entertain it. The Hon'ble Judges in the case of Chief Administrator Auqaf v. Muhammad Ramzan and others have even gone to the extent of holding that ill advice even by a lawyer is not a good ground for extension of time under section 5 of the Limitation Act, 1908.
19. The upshot of the above discussion is that the appellants have failed to establish that they were seeking their remedy before a wrong forum with due care and diligence and in good faith and as such the time spent by the applicants in prosecuting their remedy before the District Judge Dadu, in my opinion, cannot be excluded. Civil Miscellaneous Application No, 951 of 1987 is, accordingly, dismissed as a result whereof this appeal is dismissed being time-ID barred.
20. ' In view of my above order no further orders are required on matters listed at serial Nos.2 and 3 and as such Civil Miscellaneous Application No,117 of 1997 and Civil Miscellaneous Application No,137 of 1997 having become infructuous are also dismissed.