NASIR ASLAM ZAHID, J.---The above appeal filed by Karachi Electric Supply Corporation Limited is directed against the judgment dated 12-1-1994 of the Balochistan High Court dismissing Regular First Appeal of the appellant on the ground of limitation. Merits of the appeal were not considered by the High Court. The leave granting order dated 3-8-1994 reads as under:-- "In compliance with the order of this Court the petitioner has deposited a sum of Rs,11,75,739.50 (decretal amount) in the trial Court, as stated by his learned counsel. Leave to appeal is granted to examine inter alia, as to whether or not there was/is sufficient cause, to condone the delay in filing the appeal before the High Court ." We have heard the arguments of Mr. A.S.K. Ghori, learned Advocate on Record for the appellant and Raja Abdul Ghafoor, learned Advocate-on-Record for Government of Balochistan, respondent No,5. For private respondents Nos.1 to 4 Sh. Riazul Haq, Advocate Supreme Court, has appeared but has stated no instructions. Mr. Ejaz Muhammad Khan, Advocate-on-Record for the private respondents is absent. We have gone through the record. The facts are stated in the impugned judgment of the High Court as follows:-- "In brief facts giving rise to instant appeal are that respondents I to 4 being owners of the land bearing Khasra Nos.36, 37 and 38 measuring 5-0-2 acres situated in Mouza Baroot, Tehsil Hub, District Lasbella claimed compensation against the appellant and respondent No,5 to the tune of Rs,11,75,739.50. It was the case of respondents that in the year 1976 Government of Balochistan illegally allotted the property owned by them' to appellant for the construction of Grid Station at Hub at the cost of Rs,24,260.50 Later on the land was illegally treated to be owned by the State. As such its price was also received by the Provincial Government. However, they approached the competent forums and ultimately succeeded in getting reversed entries on their name. As such the amount of price so fixed by the Government was paid to them which they received under protest. It was further alleged that the amount received by them was not in accordance to the prevalent market price, thus, they are entitled for the balance amount i,e, Rs,11,75,739.50. Therefore, to recover the said amount suit was filed in the Court of Civil Judge at Hub in the month of November, 1982.
Appellant contested the suit and repudiating the claim of respondents on merits also objected its maintainability being barred by time. Government of Balochistan filed a separate written statement. The learned trial Court framed issue and called upon the parties to adduce evidence in support of their respective contentions. During the pendency of the suit appellant filed an application for rejection of the plaint under Order 7, Rule 11, C.P.C. Read with section 3 of the Limitation Act. Application so filed was allowed by the Civil Judge vide order/decree, dated 24th August, 1985. The respondents challenged order of Civil Judge before the District Judge, Khuzdar in Civil Appeal No,29 of 1986 which was allowed on 7th February, 1987. The case was sent back to the lower Court with observation for framing a preliminary issue and providing an opportunity to the parties to adduce their respective evidence.
On remand the learned trial Court recorded evidence of the parties and by means of order, dated 9th September, 1991 passed decree in terms of the prayer clause of the plaint. Although in the plaint the pecuniary valuation of the suit has been fixed more than Rs,50,000 but appellant instead of approaching the High Court filed appeal before the District Judge, Khuzdar which was registered on 29th October, 1991. Accordingly vide final order dated 15th July, 1992 appeal was turned down by the District Judge, Khuzdar. Later on a Civil Revision No,201 of 1992 was preferred before this Court which was partially allowed vide order, dated 24th September, 1992. Relevant para. Wherefrom is reproduced herein below:-- The provisions of law clearly envisage that first appeal regarding case where subject-matter is beyond Rs,50,000 shall lie before High Court. Thus in the instant case learned District Judge had absolutely no jurisdiction to entertain the appeal. It is quite obvious that all the proceedings drawn before the learned District Judge, Khuzdar commencing from institution of appeal and culminating in judgment dated 15-7-1992 are coram non judice. Resultantly petition is partly accepted judgment and decree dated 15-7-1992 passed by learned District Judge, Khuzdar is set aside and memo. Of appeal filed by petitioners be returned subject to all just exceptions, for presentation before Court of competent jurisdiction. Petition disposed of in the above terms.' It is stated on behalf of the appellant that on having obtained copy of the above order appellant approached the District Judge, Khuzdar for the return of the memo of appeal, who declined to do the needful. Therefore, duplicate copy available with the appellant's counsel along with requisite court-fee was submitted before this Court with the request that it be treated memo of the appeal filed by the appellant before District Judge."
2. On behalf of the appellant, Mr. Ghori submitted that the appellant had been misled by the act of the Court that is the District Judge, Khuzdar and its officers, as against the order of the Civil Judge dated 24-8-1983 allowing the application under Order VII, Rule 11, C.P.C. Read with section 3 of the Limitation Act and rejecting the plaint of the respondents their appeal was entertained by the District Judge which was allowed by Judgment dated 7-2-1987 and the case was remanded to the trial Court and when the suit of the respondents was decreed by the trial Court, the appellant filed their appeal before the District Judge, as had been done by the respondents earlier; the District Judge entertained the appeal and disposed it of on merits by order dated 15-7-1992; no objection was raised by the respondents or by the Balochistan Government, the official respondent/defendant in the proceedings, regarding non-maintainability of the appeal before the District Judge and that only when the matter came to the High Court in revision filed by the appellant that the High Court held that the First Appeal against the judgment of the trial Court involving subject-Matter beyond Rs,50,000 lay before the High Court and the District Judge had no jurisdiction to entertain the appeal and, therefore, all the proceedings before the District Judge were coram non judice. As noted, the appeal was then filed/presented before the High Court which has been dismissed as time-barred by the impugned judgment of the High Court. In the circumstances it was submitted by Mr. Ghori, learned counsel for the appellant that sufficient grounds were available on record to condone the delay in the filing/presentation of the appeal before the High Court. Raja Abdul Ghafoor learned counsel appearing on behalf of the official respondent, Government of Balochistan; supported the contentions advanced on behalf of the appellant. Sh. Riazul Haq, learned Advocate Supreme Court appearing for the private. Respondents stated no instructions and submitted that the private respondents have not been in contact for the last over 4 years. None of the private respondents is present.
3. The main reason for not giving benefit of the time spent by the appellant in pursuing the appeal before the District Judge given by the High Court in the impugned judgment is that it is a settled principle of law that as far as benefit of section 14 of the Limitation Act it is only available in proceedings relating to filing of the suit but not for seeking condonation of delay in filing of an appeal. Reliance was placed on the case of Mian Muhammad v. Additional Commissioner (Revenue)/Settlement Commissioner (1991 SCM R 520). Contention also raised in the High Court on behalf of the appellant was that the judgment of the trial Court dated 9-9-1991 was void having been passed without jurisdiction and, therefore, the appeal was not liable to be dismissed on the ground of limitation. This contention was not accepted by the High Court on the ground that such objection had not been taken at the relevant time either before the District Judge or on remand before the trial Court from which it was apparent that the remand judgment dated 7-2-1987 of e District Judge in the earlier round had been accepted by the trial Court.
4. Sections 5 and 14 of the Limitation Act, 1908, are as under:-- "5. 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.
Explanation.--The fact that the appellant or applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this section.
14. (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 proceeding, 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.
(2) In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the same party for the same relief shall be excluded, where such proceeding 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.
Explanation I.--In excluding the time during which a former suit or application was pending, the day on which that suit or application was instituted or made. And the day on which the proceedings therein ended, shall both be counted.
Explanation II.
Explanation III.---For the purposes of this section misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."
On the question of applicability of sections 5 and 14 of the Limitation Act, in a recent decision of this Court in the case of Abdul Wahid v. Sirajuddin 1998 SCM R 2296 after considering the earlier judgments, this Court took the view that, notwithstanding the fact that section 14 of the Limitation Act in terms does not apply to proceedings of an appeal, if the appellant is able to establish that he followed the remedy before a wrong forum in good faith the Court may condone such delay in filing of the appeal treating it as sufficient cause under section 5 of the Limitation Act. It was further observed in the cited judgment that what constitutes "sufficient cause" in such cases would depend on the facts of each case. Reference was made to the case of. Sherin v. Fazal Muhammad (1995 SCM R 584) where this Court came to the following conclusions:-- "4. The appellants' case is that they entrusted the case to their learned counsel, who after completion of the file, instituted the same in the Court of the learned District Judge; that the appellants themselves were not posted with the knowledge of the provisions of law as to the pecuniary jurisdiction of the District Judge to entertain the appeal; and they wholly depended on their counsel. The delay has been, thus, sought to be excused on the plea that the appeal was instituted in the District Court on the mistaken advice of the counsel. In order to plead that the later was not negligent, it has been asserted that the value of the suit for the purposes of the court-fee and jurisdiction was neither incorporated in the decree sheet nor explicitly shown in the judgment of the trial Court. Conversely, the learned counsel for the respondents has dubbed it a case of gross negligence on the part of the appellants and their counsel and added that the mistaken advice of the counsel cannot furnish good ground for condonation of delay.
5. Diligence is a state of human conduct. What should be the standard for assessing the behaviour of an appellant to style him as diligent. Because of fluidity of the notion of diligence, it is difficult to set up a precise yardstick. Whether or not litigant has acted diligently and with care, would differ from case to case. Speaking broadly, a person may be said to have acted diligently, when he has informed, himself of all relevant factors taken all obvious steps and precautions, characterized by a degree of effort, as in a given situation, a reasonable person would do. But, the epithet of reasonable, opens wide the measure of application of this yardstick, on the factual plane, for the word 'reasonable' is not susceptible of any precise definition. Etymologically, it signifies according to reason, which expression itself is open to difference of opinion. Whether or not a person has acted diligently in ultimate analysis, would depend on the circumstances of each case and cannot be determined on the foundation of any judicial syllogism.
6. The criterion of due diligence for enlargement of time is prescribed by section 14 of the Limitation Act, which upon its terms applied 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 shits. The question of condonation of delay, therefore, has been examined on the basis of section 5 and not section 14 of the Limitation Act. Not unsoften 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 case' within the meaning of section 5 for condonation of the delay."
This Court made it clear in the case of Sherin v. Fazal Muhammad (supra) that filing of an appeal in a wrong Court on account of mistaken advice tendered by the counsel canvassed on behalf of the appellant for condonation of delay by itself would not attract section 5 of the Limitation Act, 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 sufficient cause within the meaning of section 5 for condonation of delay.
' In Abdul Wahid v. Sirajuddin (supra) for the contention that delay in filing the appeal could not be condoned for the reason that the appellant had been pursuing remedy in a wrong Court, relience had been placed on earlier judgments of this Court specially on Abdul Ghani v. Ghulam Sarwar (PLD 1997 SC 102) and an argument had been raised that the view taken in the cited case was in conflict with the view taken later in Sherin .v. Fazal Muhammad (supra), but this Court in Abdul Wahid v. Sirajuddin (supra) did not agree observing as follows:-- "However, after examining the ratio of decidendi of both cases, which we have reproduced, we are of the view that there is no conflict in the opinion expressed in the above two cases."
4. The view taken by this Court that, despite section 14 of the Limitation Act, if appellant is able to establish' that he followed the remedy before a wrong forum in good faith with due care and caution, the. Court may condone such delay in filing of the appeal treating it as sufficient cause under section 5 of the Limitation Act is confirmed, but we may also reiterate that filing of an appeal in a wrong Court on account of mistaken advice tendered by the counsel for condonation of delay by itself would not attract section 5 as held in Sherin v. Fazal Muhammad (supra).
5. It has to be considered in the present case whether the appellant filed the appeal before the District Judge only on the mistaken advice of the counsel or whether the appellant filed the appeal with due care and caution and their conduct does not smack of negligence. The facts and the entire background which led to the filing of the appeal before the District Judge by the appellant have been given earlier in this judgment. It may, however, be repeated that, in the first round, on their plaint being rejected under Order VII, Rule 11, C.P.C. Read with section 3 of the Limitation Act, private respondents themselves filed an appeal before the District Judge which was entertained and decided on merits and the matter was remanded to the trial Court. Neither the Appellate Court nor its officers noted that the appeal had been filed before the wrong forum. The District Judge should have returned the appeal of the respondents for being presented before the competent appellate forum i,e, the High Court. This was not done. As observed, the appeal of the respondents was decided on merits and remanded to the trial Court. After remand, the trial Court proceeded with the suit of the respondents and decreed the same. This time appellant also filed the appeal before the District Judge. On this occasion also neither the office of the District Judge nor the District Judge raised any objection about the jurisdiction of the District judge to entertain the appeal; the District Judge proceeded to decide the appeal on merits. Even respondents did not raise any objection to the competency of the appeal before the District Judge. As noted, the appeal having been dismissed by the District Judge on merits, appellant filed, a revision before the Balochistan High Court when, while disposing of the revision, for the first time it was held by the High Court that the appeal before the District Judge was not competent and it was directed that the memo. Of revision be returned to the appellant for being filed before the competent forum. In the aforesaid admitted facts and circumstances, we are of the view that it is not a case where the appeal had been filed by the appellant before the District Judge only on account of mistaken advice of the counsel. Here the act and conduct of the District Judge and its office in entertaining the appeals on both occasions i,e, in the earlier round when the appeal was filed by the respondents and then when the appeal was filed by the appellant and District Judge deciding the appeals on both occasions on merits and not noting or raising the question of maintainability, and respondents' conduct on both occasions, are also factors which led the appellant in filing the appeal before the District Judge and pursuing the same there. In our view taking all the above facts and circumstances together, a case of sufficient cause as required in section 5 of the Limitation Act, had been made out and the appeal filed by the appellant before the High Court was not liable to be rejected on the ground of limitation.
6. As a result, this appeal is allowed, the impugned judgment of the Balochistan High Court dated 12-1-1994 dismissing R.F.A. No,36 of 1992 on the ground of limitation is set aside and the matter is remanded to the Balochistan High Court for disposal of the appeal on merits. No order as to costs.