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First Appeal from Original Order No. 311 of 1979, decided on 20th December 1980.

S. 8 read with Ss. 6 & 7, Auqaf (Federal Control) Act (LVI of 1976), S. I1 and Limitation Act (IX of 1908), Ss. 2 (7) & 14(2)‑Appli cation under S. I1 of Act of 1976‑Limitation‑‑Condonation of delay Person aggrieved by Notification under S. 6 of Ordinance filing writ petition instead of making application under S. 7 of Ordinance before District Judge‑Writ petition, in circumstances of case cannot be said to have been prosecuted in good faith‑Time spent in prosecuting such incompetent writ petition‑Held, cannot be excluded from period of limitation prescribed for petition under S. 11 of Act of 1976--Order of District Judge dismissing petition a time‑barred cannot be interfered with in circumstances of case‑‑Constitution of Pakistan (1973), Art. 199.

Muhammad Sharif v. Chief Administrator of Auqaf 1971 S C M R 713 ; Mrs. Asmat Tariq v. Sh. Shaukat Ali 1974 S C M R 151 ; Ch. Muhammad Sharif v. Muhammad Alt Khan etc. 1975 S C M R 259 anti Sultan Jan Khan v: Islamic Republic of Pakistan and another 1980 S C M R 964 rel,

Ch. Muhammad Ashraf Wahlah for Appellants.

Sher Zaman Khan for A.‑G. for Respondents.

Dates of hearing : 9th and 10th December, 1980.

This appeal has been filed under section 8 of the West Pakistan Waqf Properties Ordinance, 1961 against the order of the learned District Judge, Sheikhupura, dated 5‑6‑1979 by which the application of the appellant filed under section 11 of the Auqaf (Federal Control) Act, 1976 was dismissed as barred by time. This petition had been filed on 28‑5‑1979 challenging the Notification No. 1/1968‑Auqaf‑69, dated 15‑1‑1970 published on 11‑4‑1970 by the Auqaf Department in respect of land measuring 215 kanals and 13 marlas stituate in Khata No. 665, Khatuni Nos. 2360‑2361 in Mauza Kot Pindi Das, Tehsil Ferozewala, District Sheikhupura. The appellant immediately on the publication of this notification challenged the same in Writ Petition No. 667 of 1970 in spite of the fact that such an order was liable to be challenged by way of a petition under section 7 of the Waqf Properties Ordinance, 1961. This writ petition was admitted for regular hearing on 29‑4‑1970 but the same was dismissed on 17‑3‑1979 on the ground that the appellant could not invoke the jurisdiction of the High Court when an alternative remedy was available. Section 7 of the Waqf Properties Ordinance, 1961 provides that any person claiming any interest in any Waqf property in respect of which a notification has been issued under the last preceding section may, within thirty days of the publication of such notification, petition to the District Court within whose jurisdiction a part of the Waqf property is situated for a declaration that the property is not Waqf property or that the property is Waqf property within the limits stated in the petition. The Ordinance has now been repealed by the Auqaf (Federal Control) Act, 1976 in which there is a similar provision in S. I1 and the District Court is empowered under this Act also to declare whether a property or a part of it is Waqf property or not.

2. The appellant had made a prayer in the petition filed under section 11 of the Act of 1975 that the time which the appellant had spent in prosecuting the writ petition before the High Court should be excluded. The learned District Judge observed that the remedy by way of section 7 of the West Pakistan Waqf Properties Ordinance, 1961 was so evident that it could not be said that the appellant had been prosecuting the remedy of writ petition.

3. The main question that arises for consideration in the present appeal is whether the appellant is entitled to the benefit of section 14 of the Limita tion Act in the circumstances of the present case. Subsection (2) of section 14 of the Limitation Act provides that in computing the period of limitation prescribed for any application, the time during which the applicant has bee 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. Section 2 (7) of the said Act defines "good faith" as under:

"good faith" : nothing shall be deemed to be done in good faith which is not done with due care and attention.

The provisions of section 7 of the West Pakistan Waqf Properties Ordinance, 1961 were so clear that there was no ambiguity in filing a petition in the High Court. Moreover, the Supreme‑, Court has also made it clear that the person aggrieved by a Notification under section 6 of the Ordinance, 1961 has only remedy by way of section 7 of the Ordinance and the writ petition dismissed by the High Court on that ground was upheld. Reliance may be made to Muhammad Sharif v. Chief Administrator of Augaf (1971 S C M R 713), in which leave to appeal has been refused against the order of the High Court rejecting writ petition on account of their being an alternative remedy available to any aggrieved person.

4. In Mrs. Asmat TUrig v. Sh. Shaukat Ali (1974 S C M R 151), in somewhat similar circumstances it was observed as under:‑

"We consider that the submissions made by the learned counsel for the respondent have merit. The law having been authoritatively declared by this Court, it is not possible to hold that the petitioner was acting with due diligence in pursuing her application in the High Court for the grant of a fitness certificate, especially when the applica tion remained pending for more than two years. The petitioner was all along assisted by a counsel and the failure of the counsel to take note of the law declared by this Court obviously be attributed only to lack of due diligence on his part. The petitioner cannot escape the consequences of this lack of diligence."

The above observations of the Supreme Court are fully attracted to the facts of the present case.

5. In Ch. Muhammad Sharif v. Muhammad All Khan ere. (1975 S C M R 259) it has been held that where the question had been raised for the condonation of delay on the basis of section 14 and the contention was that the counsel had appeared only in few cases of small valuation appeal-able to the District Judge and so not acquainted to the venue of appeal in the High Court. It was observed by the Supreme Court that it was a case of gross lack of care on the counsel's part and failure to acquaint himself with the relevant provisions of law relating to the jurisdiction of the Court amounted to the negligence on the part of the counsel and the delay in filing the appeal in the High Court was not condoned on that score.

6. In one of recent cases reported as Sultan Jan Khan v. Islamic Republic of Pakistan and another (1980 S C M R 964) the Supreme Court has held that the ignorance of law was not sufficient ground for condoning delay even under section 5 of the Limitation Act.

7. In view of the above discussion it is held that the appellant has not filed writ petition nor prosecuted the same with due care and caution. The law as to the remedy was clear. Moreover, writ petition had been dismissed on 17‑3‑1979. No material was placed on record that the petitioner had acquired knowledge on 2‑5‑1979. In any case when the copy of the order of the High Court had been obtained on 8‑5‑1979 the delay in filing the petition on 28‑5‑1979 has not been explained. This fact is abundantly clear from reading paragraphs 4 and 5 of the petition.

8. No ground has been made out for interference in the order of the learned District Judge, Sheikhupura, dated 5‑6‑1979. This appeal has no force which is hereby dismissed with no order as to costs.

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