' SAIDUZZAMAN SIDDIQUI, J.---Property bearing Survey Nos.1090 to 1098 admeasuring about 5,000 square feet, consisting of several tenements situated at Qazi Abdul Qayyum Road, Ward 'F', Hyderabad (hereinafter to be referred as the suit property') was owned and possessed by one Muhammad Saeed Shah. The said Muhammad Saeed Shah gifted the suit property to his wife Bibi Husan Bano on 20-4-1960. After the death of Saeed Shah, Bibi Kaneez (respondent No,3 herein) instituted Civil Suit No,140 of 1969 against Mst. Bibi Husan Bano and others, challenging the validity of the gift made in her favour by the deceased Saeed Shah.
2. Similarly, Mst. Bibi Zeno and Mst. Bibi Shahzadi, mother and sister respectively, of Muhammad Saeed Shah also jointly filed Civil .Suit No,42 of 1971 against Mst. Bibi Husan Bano and others, claiming 20 paisas share in the suit property as well as other properties owned by late Saeed Shah.
Suit No,42 of 1971 was decreed by the 2nd Senior Civil Judge, Hyderabad, in favour of Mst. Zeno and Mst. Shahzadi on 7th January, 1978 and their names were, accordingly, entered in the city survey record on 1-10-1978. Respondents 2 and 3 filed Suit No,249 of 1978 before the 2nd Senior Civil Judge, Hyderabad, with prayer to set aside the decree in Suit No,42 of 1971, but subsequently withdrew their suit with the result the decree passed by the 2nd Senior Civil Judge, Hyderabad, in Suit No,42 of 1971 on 7-1-1978, in favour of Mst. Zeno and Mst. Shahzadi, declaring them owners in the suit property to the extent of 20 paisas share, attained finality, Mst. Zeno and Mst. Shahzadi later sold their 20 paisas share in the suit property to the appellants through a registered sale-deed. This 20 paisas share in the suit property is, therefore, not subject-matter of dispute in the present proceedings.
The present dispute relates to only 80 paisas share in the suit property which respondents 2 and 3 claimed to have got from Mst. Bibi Husan Bano through gifts made in their favour by Mst. Bibi Husan Bano.
3. Mst Bibi Husan Bano died somewhere in May, 1972, leaving behind Qabool Muhammad Shah (respondent No, 1 herein), as the sole surviving heir. After the death of Mst. Bibi Husan Bano, respondents 2 and 3 got their names entered in the city survey record as the owner of suit property in equal shares on the strength of the alleged gifts made in their favour by Mst. Bibi Husan Bano, on 22-5-1972. It appears that at the time the suit property was entered in the names of respondents 2 and 3 its management rested with the Court of Wards, Hyderabad. Accordingly, the Deputy Commissioner, Hyderabad, challenged the mutation of the suit property in the city survey record in favour of respondents 2 and 3 but without success. Respondents 2 and 3 accordingly, realised the rent collected by Court of Wards in respect of suit property and also started collecting future rent of the suit property. Respondents 2 and 3 later sold their respective shares (40 paisas each) in the suit property to appellant through registered sale-deeds.
4. In the above-stated background, Qabool Muhammad Shah respondent No,1, filed Suit No, 179 of 1980 against the respondents and appellant before the Senior Civil Judge, Hyderabad claiming the following reliefs:- "(1) To declare that the plaintiff is the owner of 80 paisas share in suit property by virtue of inheritance from his mother and is entitled to enjoy the income of the property and that defendants Nos.1 and 2 are not lawful donees by means of alleged gift by plaintiff's mother which is false, forged and nullity in law and also invalid, bad under law not binding ab initio void upon the plaintiff, even otherwise.
(2) That the, sale-deed executed by the defendant No,2 in favour of the defendant No,3, is also void, illegal not binding upon the plaintiff, and that the sale-deed if executed by defendant No,1 in favour of defendant No,3 is also illegal and void.
(3) That entries effected by defendant No,4 in favour of defendants Nos.1 and 2 in the City Survey Record and order of defendant No,5, dated 23rd May, 1979 dismissing revision application are illegal, against the mandatory provisions of Land Revenue Act, in excess of or without jurisdiction and not binding upon the plaintiff.
(4) That the defendants Nos.1 and 2 be directed to render accounts for their illegal recovery of rent and the receipt of amount of rent from the office of Deputy Commissioner, Hyderabad to plaintiff from the date of receipt of recovery till the amount decreed is returned to plaintiff.
(5) That the defendants Nos.1 and 3 be permanently restrained from interfering into the exercise of right of future recovery of rent vested with the plaintiff directly or indirectly.
(6) That any other relief deemed fit be granted by this Honorable Court."
Three separate written statements were filed in the suit by respondents 2 and 3 and the appellant respectively. On the pleadings of parties, the trial Court framed the following issues:-- "(1) Whether the suit is time-barred, under the Articles 91 to 93 of Limitation Act?
(2) Whether the suit is undervalued and improperly stamped?
(3) Whether the suit is in proper form?
(4) Whether the suit is barred by law?
(5) Whether the deceased Bibi Husan Bano gifted her property under suit to the defendants 1 and 2.
If yes, its legal effect?
(6) Whether the registered sale-deed, executed by the defendants Nos.1 and 2 in favour of defendant 3 are valid and legal?
(7) Whether the order of the City Mukhtiarkar, Hyderabad defendant No,4 on the basis of the gift, is legal and valid?
(8) That order of the Senior Member of Board of Revenue defendant 5 is legal and within his jurisdiction?
(9) Whether the defendants 1 to 3 are not liable to render accounts and pay to plaintiff amount of rent recovered by them?
(10) Whether the defendant 3 is owner of the property in suit and has right to receive the rent and cannot be restrained by way of permanent injunction. If not what are its effects?
(11) What should the decree be?"
' On behalf of respondent No,1/plaintiff only One witness, Fazulullah (Exh.110), a clerk from the Office of Court of Wards, Hyderabad, was examined and he closed his side. From the defendants side, only appellant (who was defendant No,3 in the suit) appeared as his own witness (Exh.118). The other respondents neither examined themselves nor produced any other evidence. Issues Nos.1 and 4 were answered in the negative while Issues Nos.2, 3 and 5 to 10 were found in that affirmative. As a result of these findings, the trial Court dismissed the suit. Respondent No,1 filed Appeal No,58 of 1983 against the judgment and decree of trial Court, before the District Judge, Hyderabad, which was transferred to IV Additional District Judge, Hyderabad. During pendency of the appeal, the appellant (who was respondent No,3 in the appeal) moved an' application before the Court under section 10 of the Court Fees Act. On this application, the learned Ist Appellate Court held, by order dated 21-1-1984, that respondent No,1 /plaintiff was liable to pay court-fee ad valorem on Rs,4,15,000. Respondent No,1 was, accordingly, directed by the 1st Appellate Court to affix proper court-fee on the above amount both on the plaint in the suit as well as on the memo.
Of appeal. The 1st Appellate Court further directed that after proper court-fee was affixed on the memorandum of appeal by respondent No,1, the memo. Of appeal may be returned to him for presentation before the High Court as it had no pecuniary jurisdiction in the matter, Respondent No,1 challenged the order of IV Additional District Judge, Hyderabad, dated 21-1-1984 before the High Court of Sindh in Civil Revision Application No,23 of 1984 which was accepted by a learned Judge in Chambers on 11-5-1989, holding that the 1st Appellate Court having reached the conclusion that it had no jurisdiction to hear the appeal, could only direct return of memo. Of appeal to respondent No,1. The learned Judge in chambers, accordingly, held that the 1st Appellate Court could not direct respondent No,1 to pay the court-fee on the memo. Of appeal. As a result of the above order of the learned Judge in Chambers, the memorandum of appeal filed before the District Court by respondent No,1 against the judgment and decree of trial Court was returned for presentation before the High Court which was later registered as First Civil Appeal No,14 of 1989.
5. A learned Judge in Chambers of High Court of Sindh (as he then was) accepted the appeal filed by respondent No,1 and set aside the judgment and decree of the trial Court by judgment and decree, dated 10-9-1991. Leave was granted by this Court against the judgment and decree passed by the learned Judge in Chambers to consider the following contentions:- "3. The impugned judgment was passed on 10-9-1991 and the appeal was filed on 7-1-1989. The learned counsel for the petitioner, inter alia, contended that the learned Single Judge has erred in holding that the gift was not completed and that it was a nullity in law. It was further contended that the learned Single Judge should not have placed onus of proving the gift on the petitioner but, in fact, it should have been placed on respondent No, to prove that the gift was fraudulent as alleged by him. These contentions amongst others require consideration. Leave is granted subject to the condition that the petitioner satisfies that instead of filing a direct appeal petition for leave to appeal is competent. The operation of the impugned order is stayed. Security Rs,5,000."
' We have heard Mr. Syed Hyder Ali Pirzada, the learned counsel for the appellant and Mr. Faizanul Haq, for respondent No,1. The other respondents in the appeal were proceeded ex parte.
' Mr. Pirzada has raised the following contentions in support of the appeal:--
(i) That the appeal before the High Court against the judgment and decree of trial Court was hopelessly time-barred. The delay in filing the appeal could not be condoned on the ground of pursuing the remedy before a Court which lacked jurisdiction and in any case, no case was made out for condonation of the inordinate delay in filing the appeal:
(ii) that the plaintiff having failed to enter into witness-box, the allegations in the plaint remained unsubstantiated. The findings of the learned Judge in Chambers that the gift in favour of respondents 2 and 3 was not proved, was therefore, based on no evidence;
(iii) that the evidence on record fully established the validity of the gifts made in favour of respondents 2 and 3 by late Mst. Bibi Husan Bano; and
(iv) that respondent No,1, having failed to pay the requisite court-fee on the plaint and memo. Of appeal, no decree could be passed in his favour.
' Mr. Faizanul Haq, the learned counsel for respondent No,1 supported the judgment of the High Court.
6. We will take up the question of payment of court-fee and limitation together as these pleas are interlinked. Mr. Pirzada contended that the appeal tiled before the High Court was hopelessly time- barred for the reason that firstly, no court-fee was affixed on the memo. Of appeal and, therefore, the appeal should be-deemed to have been presented before the High Court when the requisite court-fee was paid. Secondly, it is contended by the learned counsel that respondent No, l/plaintiff was pursuing remedy before a wrong Court which may be a ground for condoning the delay under section 14 of the Limitation Act but such ground could not form the basis of condonation of delay under section 5 of the Limitation Act.
7. It is true that the trial Court under Issue No,2 held that respondent No,1/plaintiff was liable to pay the ad valorem court-fee on the suit but neither the amount of court-fee payable on the plaint was determined nor any time for payment of the court-fee was fixed by the trial Court. The Ist Appellate Court (A.D.J., Huderabad), though in its order, dated 21-1-1984, specifically held that the court-fee was payable by respondent No,1/plaintiff ad valorem on the amount of Rs,4,15,000 and directed respondent No,1 to pay the court-fee accordingly, on the plaint in the suit as well as on the memo.
Of appeal, within one month from the date or order but this order was set aside by the High Court in Civil Revision No,23 of 1989 on 11-5-1989.
8. In the impugned judgment, the learned Judge directed respondent No,4 to make up the deficiency in the court-fee both on the plaint in the suit as well as memo. Of appeal before the High Court in terms of the order of learned Additional District Judge dated 21-1-1984 which required the plaintiff/respondent No,1 to pay court-fee ad valorem on the sum of Rs,4,15,000. However, once again no time was specified for payment of court-fee by the learned Judge in Chambers.
Respondent No,1 has paid the requisite court-fee on the memo. Of appeal before the High Court on 1-4-1992 but no court-fee was paid on the plaint till this day. Therefore, the order regarding payment of court-fee has not been complied with by the respondent No, l/plaintiff.
9. The learned Judge while dealing with the question of condonation of delay in filing the appeal before the High Court held that although section 14 of the Limitation Act did not apply to appeals as such but the principle underlying this provision of law in an appropriate case, may be taken into consideration for condoning the delay in filing the appeal under section 5 of the Limitation Act.
' This view of the learned Judge in Chambers appears to be in consonance with the following observations of this Court in Sherin v. Fazal Mahmood (1995 SCMR 584):-- "6. The criterion of 'due diligence' for enlargement of time is prescribed by section 14 of the Limitation Act, which upon its terms applies only to the suits and applications and not to the appeals. On the other hand, section 5 is applicable to the appeals ,but it does not apply to suits.
The question of condonation of delay, therefore, has to be examined on the basis of section 5 and not section 14 of the Limitation Act. Not unoften, while examining the question of condonation of delay, in filing the appeal, the Courts have been invoking the principles underlying section 14 of the Act. The High Court has declined to condone the delay entirely on the touchstone of section 14. It is, however, to be remembered that expressions 'due diligence' and 'good faith' appearing in section 14 do not figure in section 5. The condition prescribed in the latter section for its applicability is 'sufficient cause' but what is sufficient cause is not capable of connotation, with exactitude and would differ from case to case. 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."
10. Mr. Hyder Ali Pirzada, the learned counsel for the appellant has relied on the cases Abdul Ghani v. Ghulam Sarwar (PLD 1977 SC 102), Ghulam Ali v. Akbar (PLD 1991 SC 957), Aizad Baldish v.
Muhammad Afzal (1985 SCMR 1003) and Mahmooda Begum v. Muhammad Ishaq (1984 SCMR 890) in support of his contention that as the appellant counsel had acted negligently and section 14 was not applicable to the proceedings in appeal, the delay in filing of appeal could not be condoned.
We have carefully considered the ratio in the above-cited cases and are of the view that the law laid in these cases is not contrary to what has been held by this Court in the case of Sherin v. Fazal (supra).
11. This Court generally would not interfere with exercise of discretion by the High Court, if it condoned the delay in filing of appeal in exercise of jurisdiction vested in it by law. The learned Judge in Chambers while condoning the delay in filing the appeal before the High Court under section 5 of the Limitation Act took into consideration, the following circumstances:- "In such background, when the question of valuation as to court-fee was far from appropriately settled at the trial stage and with, it was the inseparable ingradient of jurisdiction as regards the Appellate Court to which the appeal could be taken, the appellant could genuinely be misled. Even otherwise and even if such question was duly approached at trial, the judgment and decree passed in the suit, as to the questions decided therein, would open up in appeal and if an unsuccessful party had reservations about any such finding, it could very wellinsist on adopting its own assessm ent of facts and interpretation of law to determine upon the forum in which the appeal could be taken. Had it not been so preferment of an appeal in accordance with the findings in the suit would constitute acquiescence and submission to relevant findings thereby important finality and conclusiveness of the decree, thus, negating the very concept of appeal itself. It must, therefore, be found that the plaintiff-appellant was within his rights to prefer the appeal in the manner he did and in the forum which was attracted consequential upon his pleadings and his stand in the Court of first instance. Conversely apeaking, the appellant could have submitted to the findings and appealed to this Court at the outset. Nor is 'this to say that the Appellate Court was bound to accept the valuation of the plaintiff-appellant as to court-fee or jurisdiction and could not independently approach the question, even in the preliminary stages and return the memo. Of appeal for proper presentation, if it came to a contrary finding, as it in fact did. Even then if, upon representation, the appellant was out of time he could show sufficient cause in terms of the rule in section 14 of the Limitation Act, as assimilated for the purpose of appeals, in section 5 of the same Act. Unfortunately, in exercising its own powers, the learned Court of Additional District Judge, Hyderabad, did so in a manner which was open to question, resulting in setting aside of the relevant order in revision, as already noted. There is hardly any loss of time in presenting the returned appeal in this Court because the order in revision was passed on 11-5-1989 and this appeal was presented on 16-5-1989. Nor can it be said that the appeal in the District Court at Hyderabad was, as would partly be discussed below, filed in bad faith or was not diligently pursued or such appeal was not defeated because of a defect of jurisdiction. All such circumstances, therefore, clearly attract the principle in section 14 of the Limitation Act and the appellant-plaintiff cannot arguably be said to be disentitled to seek condonation of the time consumed in such manner from the date of filing the appeal; in the Court of the learned District Judge at Hyderabad and representing it, upon return, in this Court. A case in point, though for the converse of the proposition, is Muhammad Latif v. Muhammad. Hafeez, PLD 1951 Lah. 479, where the appellant- defendant, objected to plaintiff's lower valuation of the suit but was overruled. He appealed to the concerned District Court. There, the parties agreeing to a higher valuation, the appeal was returned for proper presentation. The High Court on representation, condoned the period so spent, opining that the appellant had no choice except to appeal, where he did, it may also be observed that the element of bad faith in such matters may as well qualify for a set off since the period of limitation for preferring an appeal in the District Court would only be 30 days, whereas such period, as applicable to appeals in the High Court, is 90 days. Thus, the appellant can be said, to have chosen, quoting the Privy Council from Re Rajendra Bahadur, a forum requiring greater promptitude and had also approached it in time. As will be discussed below, the element of valuation, too, was not free from doubt as regards merit itself, thereby generating due satisfaction of ' sufficient cause', envisaged in section 5 of the Limitation Act.
' Resultantly, if section 14 of the Limitation Act was not technically applicable, nothing has been shown to disentitle the appellant-plaintiff from seeking condonation pursuant to section 5 of the Limitation Act. I have, therefore, allowed C.M.A. No, 328 of 1989 under sections 5 and 14 of the Limitation Act and dismissed C.M.A. No,367 of 1989 under section 3 of the same Act."
' The above reasoning does not suffer from any legal infirmity so as to call for our interference.
11. On merits, Mr. Hyder Ali Pirzada, the learned counsel for the appellant, contended that the material on record fully substantiated that a valid gift of the suit property was made in favour of respondents Nos.2 and 3 by late Mst. Bibi Husan Bano during her lifetime. In support of his contention, Mr. Pirzada relied on the mutation in the Revenue Record, orders passed by the Commissioner, Hyderabad Division and Member, Board of Revenue, Sindh, and the statement of Fazulullah (Exh.110) examined by the plaintiff from the Office of Court of Wards, Hyderabad. Mr. Pirzada very vehemently argued that the burden of proving that the gift made in favour of respondents 2 and 3 was invalid, was on respondent No, 1/plaintiff which he failed to discharge as he never stepped into the witness-box in support of his assertion in the plaint. The learned counsel, accordingly, argued that the suit was rightly dismissed by the trial Court and the learned Judge in Chambers was not justified in reversing the judgment and decree of the trial Court.
12. The contention of the learned counsel has no force. The learned Judge in Chambers rightly held that in so far the plea of plaintiff/respondent No,1, that Mst. Bibi Husan Bano made the gift in favour of respondents 2 and 3 while she was suffering from Mardul Maut' was not proved as the respondent No, l/plaintff led no evidence in support of this plea. Similarly, the learned Judge in Chambers was also right in observing that the plea of lis pendens taken by respondent No,1/plaintiff also had not much bearing on the final outcome, as any transfer made by Mst. Bibi Husan Bano during the pendency of legal proceedings was subject to the result of the pending suit.
The learned Judge,however, took the view that the entries in the Revenue Record by itself could not create any title in favour of the donee (respondents 2 and 3 ) in the absence of the gift deeds. The learned counsel for the appellant is unable to point out any infirmity in the above reasoning of the learned Judge in Chambers.
13. Respondent No,1/plaintiff in his suit categorically asserted that his late mother never executed any gift deed in favour of respondents 2 and 3 and the alleged gift relied by them was a bogus and fictitious document. Respondent No, 1/plaintiff further asserted in his suit that his mother according to the customs of Syed family of Sindh, was strict Purdah-observing lady and she never appeared in public. It is an admitted position on record that respondent No,3 had challenged the title of Mst.
Bibi Husan Bano in respect of the suit property by questioning the validity of gift made in her favour by her late husband, Muhammad Saeed Shah, in Suit No,140 of 1969 which was pending on the date the alleged gift was made in favour of respondents 2 and 3. This suit remained pending even after the date of the alleged gift and the death of the donor.
14. Respondent No, 1/plaintiff through witness Fazulullah, who was summoned from the Office of Court of Wards. Hyderabad, produced a certified copy of the order dated 13-3-1980 passed by District Judge, Hyderabad, in C.M.A. No,12 of 1968 filed by the Collector, Court of Wards, Hyderabad, under section 40 of the Court of Wards Act. From the contents of above order, which is Exh. 111 on the file of the Trial Court, it appears that on an application made by the Deputy Commissioner/Ex- Officio Court of Wards, Hyderabad, the District Judge passed an order under section 10 of Court of Wards Act on 13-3-1964, authorising the Court of Wards to take over custody and provide protection to the property inherited by Mst Bibi Husan Bano and her son, Qabool Muhammad, from late Saeed Shah son of Saleem Shah. It further appears that in 1980 the Collector moved an application under section 40 of the Court of Wards Act for release of the property to Mst. Bibi Husan Bano and Qabool Muhammad Shah on the ground that Qabool Muhammad Shah had attained majority, and her mother had died and, therefore, he was capable to manage the property. From the above-stated evidence, it is quite clear that the suit property remained in possession of the Court of Wards, Hyderabad, from 3-3-1964 until it was released by the District Judge on 13-3-1980.
There is nothing on record to show that the possession of the suit property was handed over to respondents 2 and 3 at the time of alleged gift made by Mst. Bibi Husan Bano in favour of respondents 2 and 3. In the above-stated background, the failure of respondents 2 and 3 to step into witness-box to prove the alleged gift made in their favour by Mst. Bibi Husan Bano by producing the alleged deed/declaration of gift, was rightly considered as a strong circumstance suggesting adverse inference against the respondents. It may be mentioned here that the plaintiff/respondent No,1 in his plaint had categorically mentioned that his late mother neither executed any gift deed or declaration of gift in favour of respondents 2- and 3 nor such a gift was ever signed by her. It was also categorically asserted by respondent No,1 in his suit that his mother was a strict Pardah-observing lady of Syed family and she _never appeared in public according to the customs of the family. In these circumstances, a very heavy burden lay on respondents 2 and 3 to establish that a valid gift was made, in their favour by -late Mst. Bibi Husan Bano which they failed to discharge. Therefore, no exception could be taken to the findings recorded by the learned Judge in Chambers that the respondents Nos.2 and 3 failed to prove gift of the suit property in their favour by Mst. Husan Bano.
' Before parting with the case, we may, however, observe that the learned Judge in Chambers while directing respondent No,1 to pay the court-fee in terms of the order of Additional District Judge, Hyderabad dated 21-1-1984, did not fix any time for payment of the court-fee by respondent No,1 on the memo. Of appeal and on the plaint in the suit. From the original record, which is before us in this case, it appears that the respondent No,1 paid court-fee on the memo. On 1-4-1992 while no court-fee has been paid so far on the plaint in the suit. We, therefore, direct respondent No,1 to affix proper court-fee on the plaint as directed by the learned Judge in Chambers in the impugned judgment within one month from the date of this judgment failing which plaint in the suit shall be deemed to have been rejected for non-compliance of the order of the Court and, consequently, the judgment and decree passed in favour of respondent No,1/plaintiff by the High Court shall stand vacated.
' In view of the above facts, no case for interference with the judgment of the High Court is made out. The appeal is, accordingly, dismissed with no order as to costs.