PLJ 2002 SC 49[Appellate Jurisdiction] Present: ABDUR REHMAN KHAN, JAVED IQBAL ANDHAMID An MIRZA, JJ. ABDUL MAJEED etc.-AppellantsversusMst. HAMIDA BIBI and 4 others-Respondents C.A. No. 1330 of 1996, decided on 22.3.2001.(On appeal from the jdugment dated 30.3.1996, of the Lahore High Court, Lahore passed in Civil Revision No. 1477-D/1998)
(i) Constitution of Pakistan (1973)--
—-Art. 185(3)--Suit for pre-emption-Delayed filing of appeal before First Appellate Court-Delay condoned by High Court-Leave to appeal was granted to consider; whether plaintiffs were under duty to have explained delay of each and everyday in filing appeal before Appellate Court; whether there was no justification with the High Court to condone delay in the institution of appeal. [P. 50] A
(ii) Punjab Pre-emption Act, 1991 (IX of 1991)--
—-S. 15-Limitation Act (DC of 1908), Ss. 5 & 14-Suit for pre-emption- Condonation of delay in filing appeal-Essentials for condoning delay explained and illustrated. [P. 53] B
1975 SCMR 259; PLD 1977 SC 102; PLD 1993 SC 385; 1984 SCMR 890;
1068; 1985 SCMR 333; 1988 SCMR 2; PLD 1991 SC 102, 957; PLD 1992 SC
424; 1995 SCMR 584; 1998 SCMR 2296; PLD 2000 SC 94 ref.
Mr. Munir Ahmad Peracha, ASC with Mr. Ejaz Muhammad Khan, AOR for Appellants.
Mr. Muhammad Yaqoob Sindhu, ASC with S. Abdul Aasim Jafri, AOR (Absent) for Respondents.
Date of hearing: 22.3.2001.
JUDGMENT
Abdur Rahman Khan, J.-Leave in this appeal granted to consider the following points raised at the time of hearing the petition.
"Learned counsel has submitted that the respondents, Mst. Hamida Bibi etc. were under duty to have explained delay of each and every in filing the appeal before the appellate Court. According to learned counsel, the respondents filed their appeal before the appellate Court after 29 days for which they could not offer any reasonable/plausible explanation in that behalf. According to learned counsel, there was no legal justification with the High Court to condone the delay in the institution of the appeal".
2. The factual background relevant for the disposal of the present appeal is that Walayat Khan predecessor of the respondent on 25.11.1975, filed suit for possession through pre-emption in respect of the disputed land in the Court of learned Civil Judge. The learned trial Judge although held the appellant to be possessed of superior right of pre-emption but dismissed the suit on its finding on Issues Nos. 3 and 4 holding the suit to be barred by time and incorrectly valued for the purposes of Court fee and jurisdiction. It was clarified in the judgment that the plaintiff was required to have fixed Court fee on Rs. 85,204-50 which has not been done and so "I find that the suit had been deficiently valued and plaintiffs attitude was contumacious and wilful. In such circumstances grant of permission to make up the deficiency would amount to an undue favour to the plaintiff and a valuable right which has accrued to the defendants with the lapse of time would stand defeated. For my these findings I hold that the suit has been deficiently valued and the plaintiff cannot be permitted to make up the deficiency and that the plaint deficiently valued is in-competent to seek any relief. I decide this issue in favour of the defendant". The trial Court fixed the sale price at Rs. 90.000/-as the parties had agreed to it. Appellants preferred appeal in the High Court as valued for jurisdiction was fixed at Rs. 90,000/- which was accepted by judgment dated 27.1.1985. The appellants challenged this judgment in this Court which was accepted holding that High Court was not proper forum for appeal and it was directed that the memo of appeal be returned to the appellant (plaintiff) for submitting it before proper forum. Consequently, the appeal was presented before the learned District Judge alongwith application for condonation of delay. The learned Additional District Judge who heard the appeal on 6.4.1988, dismissed the application for condonation of delay and so the appeal because it was held:- "It is abundantly clear from case law referred by respondents' counsel that wrong advice of counsel does not furnish a foundation for enlargement of limitation".
This order of the appellate Court was challenged in revision in the High Court which was accepted by the impugned judgment dated 24.3.1996, and the judgment and decree of the learned appellate Court, were set aside and the application for condonation was accepted with the result that the appeal of the plaintiff/respondents before the appellate Court shall be deemed to be pending and should be decided afresh. Leave to appeal was granted to consider the legality of this order.
"Learned counsel for the respondent has however tried to distinguish Sherin's case on the ground that in that case at the time of filing the appeal wrongly before the District Court the limitation for filing it in this Court has not expired. While in the present case when the appeal was presented in this Court but the appeal if filed before the District Court would be barred by 11 days. This distinction with respect is specious and hardly makes any difference. As the appellant was advised by the learned counsel that the appeal lay in the High Court he was well within his right to assume that it could be filed within 90 days which is the limitation for filing appeal in the High Court. The rule laid down in Sherin's case is clearly applicable".
4. It was next argued that before invoking the Provision of Section 5 of the Limitation Act it is to be shown that due diligence was exercised in choosing the forum for appeal. To support this point the learned counsel referred to the following decided cases:
(i) 1975 S.C.M.R. 259
(ii) PLD 1977 S.C. 102
(iii) PLD 1993 S.C. 385
(iv) 1984 S.C.M.R. 890, 1068
(v) 1985 S.C.M.R. 333
(vi) 1988 S.C.M.R. 2
(vii) PLD 1991 S.C. 102, 957
(viii) PLD 1992 S.C. 424
(ix) 1995 S.C.M.R. 584 (x) 1998 S.C.M.R. 2296 (xi) PLD 2000 S.C. 94
In order to meet the above arguments the learned counsel for the respondents referred to PLD 2000 S.C. 941, and 1999 S.C.M.R. 1049 to support his view point.
5. There is no denying the well settled legal position that the benefit under Section 5 of the Limitation Act can only be availed if a party has acted in good faith and with due diligence. As each case proceeds on its own facts, therefore, diligence and good faith would be determined on the facts of each case and no formula of inflexible or universal application can be laid down in abstract form. It has been so held in the latest judgment of this Court reported as "Karachi Electric Supply Corporation Ltd. Vs. Lawari and 4 others". (PLD 2000 S. C. 94):
"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. The criterion of "due diligence" for enlargement of time is prescribed by Section 14 of the Limitation Act, which upon its terms is 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 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. It is, however, to be remembered that expressions "due diligence" and 'food faith' appearing in Section 14 do not figure in Section 5. The condonation prescribed in the later section for its applicability is sufficient cause but what is sufficient cause is not capable of condonation, with exactitude and would differ mistaken advice tendered by the counsel, 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.
Filing of an appeal in a wrong Court on account of mistaken advice tendered by the counsel convassed on behalf of the applicant 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".
As the view taken in the above cited judgment appears to be gist of the rule laid down and the cases cited before us and noted above, therefore, we need not refer to each case at that would serve no purpose. In order to determine in this case as to whether the plaintiff was entitled to condonation of delay under Section 5 read with Section 14 of the Limitation Act the following points are to be noted:-
(i) The law on the point as to how forum of appeal in pre-emption cases in to be determined, had not be firmly settled till recently. As one view was that the appellate forum will be regulated by the sale price of the subject-matter of the suit while the other was that it depends on the valuation of land as determinable under the Suit Valuation Act and the rules there under.
(ii) At the time of filing the appeal in the High Court on objection was raised by the office to the maintainability of the appeal.
(iii) No objection was taken from the side of the respondent in the High Court on account of jurisdictional value.
(iv) The learned Judges in the High Court heard and decided the appeal on merits without noting the factum of jurisdictional value and competency of the appeal before them on that count.
(v) This point for the first time was noted in this Court and the case was remanded to the District Court as it was held that the appeal before the high Court was not competent as in view of the jurisdictional value fixed in the plaint it was competent before the District Court.
In view of the above factual and legal aspect of the case we agree with the conclusion of the High Court reached by it in the impugned judgment and, accordingly, dismiss the appeal, but with no order as to costs.
(A.A ) Appeal dismissed.
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