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Civil Appeal No. 58 of 1981, decided on 6th April, 1982.

S. 5- read with S. 14--Extension of period of limitation-Dates on copies of decree and judgment tampered with in order to bring appeal in Court of District Judge within limitation-Appellants not pursuing appeal in Court of District Judge with diligence and compelling res pondent to go to wrong Court for long time-Appellants conduct, held, not fair-Benefit of S. 5 could not be extended to appellant-No sufficient cause, therefore, was available for invoking provisions of S. 5 read with S. 14.

Kh. Noor-ul-Amin for Appellants.

Raja Muhammad Saddique for Respondent.

Date of institution : 23rd December, 1981.

-A suit for damages and recovery of some costs incurred in a civil proceeding by the petitioners plaintiff's brought against them by the respondent was filed in the Court of Sub Judge, Dodyal. The suit was dismissed by the trial Court, vide its judgment dated 30-6-1981. Against this decision an appeal instead of filing to the High Court as provided by the rules was presented to the Court of District Judge on 16-8-191981 which was pending there, during the pendency of which this appeal was brought to this Court as it was competently to be filed in it against the impugned decree of the trial Court and not to the District Judge as the value of the suit dismissed is more than Rs. 5,000. This was lodged on 23-12-1981. The affidavit was attached with it which was made by one of the appellants stating therein that it was due to the mistaken advice of the counsel that appeal instead of bringing to this Court, was filed in the Court of the District Judge and when the mistake was discovered by the appellants on 16-12-1981, they applied for the copies of the judgment and decree which were delivered to them on 21-12-1981 and so the appeal was lodged thereafter to this Court.

The first appeal in the court o District Judge was filed on 16-8-1981.The appeal to the District Judge was to be filed within 30 days of pronouncement of the judgment and the day spent in obtaining the copies were to be taken in account so as to bring the appeal within limitation. The impugned decision was given on 30-6-1981 and application for obtaining copies of the judgment and the decree was made on 15-7-1981 which were delivered to them on 28-7-1981.

The perusal of the endorsements on the application for obtaining copies reveals that the counsel or appellants, as the case could be, were to furnish stamps as copying-fee to be affixed on the copies on 18-7-1981 but they failed till 28-7-1981 when the copying-fee was paid. The appeal to the District Judge was obviously beyond the time of limitation even after computing the day spent in obtaining copies and the day on which the decree was made. And in order to bring the appeal before he District Judge within the period of limitation, date of application i.e. 15-7-1981 was mutilated and instead it was overwritten as 10-7-1981. By doing so he appeal was made to be admitted by District Judge so that the respondent could be dragged to his Court without jurisdiction beyond a period of limitation. This shows that the appellant do not depict a good conduct so as to bring them within the province of good faith for attraction of section 5 of the Limitation Act. The appeal before the District Judge shows that appeal was also not prosecuted there with zeal and keenness. Neither they appeared before the Court of District Judge to prosecute the appeal nor their counsel was serous enough to do so. There were six adjournment in the case before the District Judge and the counsel for the appellants appeared once at the time of presentation of appeal and secondly at a time awaited long by the lower Court. Again he was present before the court of District Judge 3-3-1982 and no order on that appeal could be made by the District Judge due to his absence for long on a course. One must be careful and caution in bringing an appeal to a proper Court. Here the act of the counsel in filing appeal in the wrong court cannot be regarded as a bona fide and excusable inadvertence on his part as he did not act with due care and attention and did not even care to consider that the value of the suit amounting to Rs 21800 described in he judgment determined the forum of appeal and instead act of tampering was done on respect of the dated correctly given on the copies of the judgment and decree furnished to the appellants on 28-7-1981 in order to bring the appeal within limitation before the court of District Judge. And after doing so there was even no pursuance of the appeal before the District Judge with diligence as a result of which carelessness the respondent was made to go to a wrong Court for a pretty long time. If the conduct of the appellants would have been fair in the wrong Court, the benefit of section 5 of the Limitation Act could be extended to them. Therefore, it cannot be held that there is a sufficient cause for invoking provisions of section 5 of the Limitation Act read with section 14 of the same Act.

That being so, the preliminary objection raised by the counsel of the respondent to the effect that appeal to this Court was filed beyond a period of limitation prescribed to which, in the circumstances above, no condonation of delay could possibly be made, is upheld and the appeal is dismissed with costs.

K. M. A. Appeal dismissed.

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