AMIR ALAM KHAN, J.--- This regular first appeal is directed against the judgment and decree dated 13.7.1995 passed by the learned Civil Judge, 1st Class, Daska, District Sialkot, whereby the suit of the respondents Nos. 1 to 3 seeking specific performance of the agreement to sell was decreed in their favour and against the appellants and respondents Nos.4 and 5.
2. The plaint in the suit filed by the respondents Nos. 1 to 3 proceeded on the ground that respondent No. 1 being owner in possession of the land measuring 21 kanals, 1 marla situate Mauza Saranke, Tehsil Daska, agreed to sell the same to respondents Nos.
1 to 3 for a total consideration of Rs.6,00,000/- and having received Rs.5,70,000/- as earnest money vide agreement to sell dated 15.8.1993 agreed that the final sale-deed would be concluded in favour of the said respondents when the land aforenoted shall be got redeemed from the Small Industries Corporation. It was then asserted that the possession of the land in dispute was also delivered to the respondents aforenoted. It was the case of the respondents/plaintiffs that the said land was got redeemed by respondent No. 4 as is evident from Mutation No. 709, dated 29.11.1993 with the result that respondents Nos. 1 to 3 issued a legal notice on 4.1.1994 but the same was not responded by respondent No. 4. It, however came to the knowledge of respondents Nos. 1 to 3 that respondent No. 4 fraudulently entered into a bargain of sale concluded vide registered sale dated 26.9.1993 whereby the land in dispute was sold to the appellants which sale-deed rs illegal and ineffective against the rights of respondents Nos. 1 3. In the background aforenoted, respondents Nos. 1 to 3 filed a suit seeking specific performance of the agreement as also seeking declaration that the sale-deed executed in favour of the appellants be declared to be void and ineffective as against their rights.
3. The suit was resisted by the appell ants and respondent No. 1 as also respondent No. 4 who filed separate written statements in the case. The appellants submitted in their written statement that the suit was collusive between the plaintiff and respondent No. 4 and that the alleged agreenient in favour of respondents Nos. 1 to 3, forming basis of the suit filed by them, had been prepared by perpetrating fraud which was fake and result of male fide. It was also asserted that the appellants had purchased the land in dispute through a registered sale-deed which is lawful and binding.
4. Respondent No. 4 proceeded to concede! The suit of the respondents Nos. 1 to 3 while respondent No. 5, who is a son of respondent No. 4 also conceded the suit of respondents Nos. 1 to 3.
5. The learned Trial Court having framed six issues in the case proceeded to record evidence wherein respondents Nos. 1 to 3/plaintiffs produced two witnesses while Muhammad Ashraf appeared as his on witness. The documentary evidence produced by the plaintiffs/respondents Nos. 1 to 3 herein comprised copy of envelope containing notice (Exh.P.1), photo-stat. Copy of registered sale-deed in favour respondents Nos 1 to 3 (Exh.P.2), copy of agreement to sell dated 15.8.1993 ,(Exh.P.3) copy of jamabandi for the year 1991-92 (Exh.P.4), copy of khasra girdwari (Exh.P.5) and copy of power-of-attorney in favour of Muhammad Ashraf (Exh.P.6). The appellants on the other hand produced three witnesses while Fayyaz Ahmed, one of the vendees appeared as his on' witness as DW.3. The documentary evidence produced by the appellants comprised registered agreement to sell in favour of the appellants (Exh.D.1), original sale-deed (Exh.D.2), khasra girdwari for the year 1993 (Exh.D.3) copy of report Ahl-e-Commission (Exh.D.4). Respondents Nos. 1 to 3 then produced in rebuttal documentary evidence consisting of partnership deed (Exh.P.7) (received under objection) and ) (Exh.P.8).
6. The learned Trial Court having appraised and discussed the evidence on the record proceeded to decree the suit of respondents Nos. 1 to 3 vide judgment and decree dated 13.7.1995.
7. The appellants filed an appeal against the above-said judgment and decree before the learned Addl. District Judge, Daska on 19.7.1995 which appeal was returned because of lack of pecuniary jurisdiction on 14.3.1996 and was filed in this Court on 18.3.1996. The appeal having become bared by limitation, the appellants also filed an application under Section 14 of the Limitation Act seeking condonation of delay in filing the appeal before this Court. The justification rendered in the said application is to the effect that the learned counsel for the appellants under a bona fide mistake field the appeal before the learned Addl. District Judge, Daska, and that it was not only a bona fide mistake of the learned counsel for the appellants but also a mistake of the Court which failed to notice that the appeal was not competently filed before him. Thus, the delay in filing the appeal is liable to be condoned. It may be relevant to mention here that apart from the affidavit, sworn by one of the appellants, an affidavit of the counsel who filed the appeal before the learned Addl.
District Judge has also been appended with the application whereby the said learned counsel has stated on oath that the appeal was filed under bona fide mistake of the learned counsel for the appellants.
8 Learned counsel for the respondents objected at the very outset that the appear is liable to be dismissed as the same is barred by limitation. It was submitted that although the application filed in that regard is supported by an- affidavit of the learned counsel, yet the ignorance of law is no excuse particularly when it is committed by a law man and then the affidavit itself does not disclose as to how and why the mistake was committed by the learned counsel for the appellants particularly when the jurisdictional value of the suit, as mentioned in the decree sheet, was Rs.6,00,000/-. It was finally submitted that there was no question of any mistake much less bona fide mistake.
9. Learned counsel for the appellants having relied on Sherin and 4 others v. Fazal Muhammad and 4 others (1995 SCM R 584), Karachi Electric Supply Corporation Ltd. v. Lawari and 4 others (PLD 2000 S.C. 94) and Mst. Sanober Jan v. Shaukat Ali and others (2001 M LD 321) argued that the basic concept for condonation of delay in filing- the appeal before a wrong Court such as bona fide mistaken advice of the counsel, due diligence good faith, act of Court and sufficient cause, has been considered in the judgments aforenoted and it has been finally held that although these are questions to be decided with reference to the facts of the case which may differ from case to case but the psych of the people of our country and the fact that the District Court has contributed towards the over all mistake should not be ignored. On consideration of the facts of the present case it would be noted that one of the appellants is illiterate as is evident that he has affixed his thumb impression on the appeal while the other seems to be an educated person for he has signed the same. The question is that they having engaged a law man remained satisfied that their interest shall be looked after, who in turn proceeded to file an appeal before the wrong Court but then it is not brought on the record that they were to gain something out of it, therefore, the said learned counsel has also sworn affidavit that it was under his mistaken advice that the appeal was filed before a wrong Court. It . Is matter of record that judgment in this case was pronounced on 13.7.1995 while the appeal before the District Court was filed on 19.7.1995. Had the appeal been checked at the time of filing the same or at the preliminary hearing, there was enough time for the appellants to file the same before this Court. It was not so done with the result that the mistake was pointed out on 14.3.1996 i.e. Almost nine months after the filing of the appeal. All the above noted factors contributed towards delay in filing the appeal before this Court. In the basic judgment of Sherin and 4 others (supra) the discussion on these points is illuminating, therefore, the same is reproduced hereunder:- "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 were 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 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 or delay, therefore, has to be examined on the basis of Section 5 and not Section 14 of the Limitation Act. Not un-often, 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 expression "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 form 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.
7. From the perusal of the record we find that appellants Nos. 1, 2 and 5 are utterly illiterate. This is inferable from the factum of thumb-impressions put by them on the documents forming part of the Trial Courts' file. Appellant No. 3 is not an educated person and presumably can only write his name. In our system of law, what a litigant, placed in the situation, as the appellants were, has to do for redress of his grievance, through a Court of law, is to engage a counsel. This the appellants did. It seems to us that they did not make contribution, in the institution of the appeal in the District Court. There is no allegation that they stood to gain thereby or were guilty of any male fide conduct. The filing of appeal in the District Court, is entirely attributable to the carelessness of the appellant's 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. It seems that he is a Senior Advocate. We may say, and say so with respect that 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 time 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 time, some restraint needs to be exhibited by the Courts, in imposing too large a burden on a litigant, for the lapses of his counsel." It was further held:- "The stage is now set down to evaluate the effect of the learned District Judge's failure in returning the memorandum of appeal to the appellant with reasonable dispatch. It is correct that the appellants themselves were at fault, in filing the appeal in the District Court, which was not possessed of the pecuniary jurisdiction to hear it. But, let the appellants' mistake be there, a searching question needs to be asked had the learned District Judge, no reason to look into the existence or otherwise of the jurisdictional facts upon which tine entertaining of the appeal by him was dependent, though not in-depth, but at least prima facie, through a preliminary enquiry confined only to the cursory examination of the record before him. We are unable to show him any indulgence, in this regard. We are sure had he glanced through the record, the agony of the appellants would not have prolonged. In Hari Ram v. Akbar Hussain(ILR 29 All. 749) a Full Bench. Of the Allahabad High Court had the occasion to adjudicate upon the defendants' objection, in a pre- emption suit that mistake in court-fee by a party is not covered by Section 28 of the Court Fees Act, 1870, and it applied only when a document not properly stamped, was received and used by the Court or Office by mistake or inadvertence.
The objection was repelled with the observations which are quite instructive:- "The mistake may in its origin be the mistake of the plaintiff; by the time the plaint has been registered, the mistake has become the mistake of the Court. If the Court or the Munsarim discovered the plaintiff's mistake before registration of the plaint, the plaint would at once be rejected under Section 54 of the Code of Civil Procedure and never registered at all."
We feet that omission on the part of learned District Judge to take timely action is the major cause of refilling of the appeal by the appellants, in the High Court, out of time. They have been the victim of the act of the Court which furnishes "sufficient cause" under Section 5 of the Limitation Act, for condonation of delay. The fact that after receiving the memorandum of appeal from the District Court, some time was consumed by the appellants, in presenting it to the High Court, in the circumstances of the case is inconsequential. We are, therefore, inclined to condone the delay in presenting the memorandum of appeal to the High Court."
The judgment in the case of Karachi Electric Supply Corporation (supra) reiterated the rule while the judgment in the case of Mst. Sanober Jan (supra) extracted and relied on the part of rule laid down in the aforenoted judgments that if the mistake had been noticed by the District Court at the time of preliminary hearing the appellants had still time to file the appeal before this Court.
Respectfully following the rule laid down by the Honourable Supreme Court of Pakistan as also agreeing with the rule laid down in the case of Mst. Sanober Jan (supra), I am inclined to condone the delay in filing this appeal.
10. Coming to the merits of the case, it would be noted that the agreement to sell dated 15.8.1993, forming subject-matter of the suit, had been drawn on a plain paper while an adhesive stamp of Rs.507- has been affixed theredn. It has not been drawn by a regular scribe. The adhesive stamp, is also un-dated, therefore, it can be reasonably doubted about the authenticity of the said agreement to sell. No explanation is forthcoming on the record as to why the said document was drawn on a plain paper and by a person who is not regular scribe or. Petition writer. Muhammad Ashraf one of the respondents Nos. 1 to 3, had entered the -witness-box and stated that the stamp was purchased from the bank and that the amount thereof was deposited by him. He has, however', failed to produce any receipt of the bank,. As for the amount of consideration of Rs.5,70,000/- the said Muhammad Ashraf had initially stated that he had drawn the money from a bank but later on improved upon the same by stating that he had sold his property at Faisalabad and from the proceeds recovered therefrom he had paid the consideration. The vendor, on the other hand , having executed a registered agreement to sell (Exh.D.1) in favour of the appellants had also executed registered sale-deed for Rs.10,00,000/- (Exh.D.2) in favour of the said. Appellants but had proceeded to concede. The suit of respondents Nos. 1 to 3. Interestingly enough he had not denied the execution of the sale-deed in favour of the appellants. Obviously his conduct is fraudulent, maia fide and, to say the least, it is neither legal nor -justified. The reasoning of the learned Civil Judge that respondents Nos. 1 to 3 had produced scribe of the document as also the attesting witness and that it is enough to prove the said document, is erroneous particularly in view of the facts and circumstances of the present case for it would be very easy for a person to ante date an agreement and to produce two witnesses to show that the same had in fact been executed. It is the attending circumstances of the case such as purchase of the stamp paper whereon the document is to be. Scribed as also the register of the scribe to show that such 'a document was in fact executed on the day when it is shown to have been executed. No such intrinsic evidence i.s available in this case for basically the stamp paper hack not been purchased for the drawal of document and again the scribe had no register whatsoever to show that-su.Ch a document was at all executed on the date that it is purported to have been executed. Again the defendants in their evidence had produced Javed Iqbal (DW.2) Accountant of the Treasury Office, who had stated on oath that the adhesive stamp affixed on the agreement to sell had not been issued by their office. It is very pertinently stated by him that it does not bear the date or the number for it is also stated by him that whenever an adhesive stamp of the nature is issue by them they always endorse a number thereon and that they themselves affix the stamp on the document. In the face of this statement, the statement of Muhammad Ashraf, one of the vendees, pales into insignificance that he had , deposited the amount of the ticket in the bank. Needless to and that no such evidence had been produced on the record to prove that such an amount was at all deposited. -Primarily it was a case which had to be appreciated in view of the :ct that the agreement to sell forming basis of the suit was not drawn on a stamp paper.
11. Another factor is of much importance that respondent No. 3 had allegedly issued notice to respondent No. 1 i.e. The vendor, which was returned with the report that the addressee was working for gain at an unknown place and that the inmates of the house had refused to receive the same. The vendor i.e. Respondent No. 1 had given an explanation for not receiving the said notice for it is stated by him that he was not home, therefore, the said notice was not received. It would be seen that the notice is stated to have been issued on 4.1.1994 i.e. Much 'after the date of mutation of redemption dated 29.11.1993 as also the registered sale- deed dated 26.9.1993 duly executed in favour of the appellants as admitted by the vendor i.e. Respondent No. 1. It is deducible from the evidence aforenoted that respondent No. 3 in collusion with respondent No. 1 had created an ante-dated agreement to sell and in furtherance thereof had also issued notice to create evidence that such an agreement was executed. The Jamabandi (Exh.P.4) as also the two Khasra Girdawaries i.e. One presented by the plaintiffs/respondents Nos. 1 to 3 and the other by the appellants (Exh.D.3) are not of much help to decide the present controversy, for the Jamabandi for the year 1991-92 (Exh.P,4 on the record) only recites that the land is owned by respondent No. 1 i.e, the vendor and that in the column of Kefiyat two mutations have been mentioned, one is for redemption of the property which had been attested on 29.11.1993 while the other is mutation No. 713 which is in regard to implementation of registered sale-deed in favour of the appellants. Khasra Girdaweri produced and proved by the plaintiffs shows Bashir Ahmed vendor in possession of the land in dispute till 23.10.1993 while the one presented by the appellants recites that they came into possession of the land on and from the date of mutation in their favour which possession is continued to be shown in the year 1994-95. This entry in the Khasra Girdaweri is another factor which leads to conclude that the sale in favour of the appellants had been incorporated in the revenue papers as well. In the circumstances, respondents Nos. 1 to 3 have failed to prove valid execution of the agreement to sell dated 15.8.1993 forming subject- matter of the suit, resultantly the learned Trial Court has erred in decreeing the suit of the plaintiffs/respondents Nos. 1 to 3 and the judgment rendered in that behalf suffers from vitiative infirmity, therefore, not sustained.