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First Appeal from Original Order No. 283 of 1980, decided on 14^th January, 1984.

---S.96 & O.IX, r.13--West Pakistan Civil Courts Ordinance (II of 1962), S.18 (1) (a)--Limitation Act (IX of 1908), Ss.5 & 14--Appeal- Limitation--Appeal against dismissal of application for setting aside ex parte decree--Returned by District Judge as valuation of suit for purpose of court-fee and jurisdiction exceeding its pecuniary jurisdiction--Appeal filed before High Court with application for condonation of delay on ground of mistaken advice of counsel--Counsel for appellant who appeared before District Judge showing gross negligence to acquaint himself with provisions of S. 18 of West Pakistan Civil Courts Ordinance which suffered from no ambiguity--Appellant, held, could not be said to have prosecuted case diligently and honestly and respondents to whom a valuable right accrued in consequence of impugned decree of trial Court, could not be penalised for alleged mistaken advice of appellant's counsel which was not bona fide.

Saeedan Bibi v. Ali Hussain 1975 S C M R 261; Abdul Ghani v. Ghulam Sarwar P L D 197.7 S C 102 and Manzoor Hussain v. Muhammad All P L D 1982 Lah. 632 ref.

---S.96 & OIX, r.13--Memorandum of appeal returned by District Judge for filing appeal before competent Court--Such memorandum of appeal, held, could not be amended by appellant without leave of Court and appeal filed as such was not maintainable.

---S.96 & O.V, r.20, O.VIII, rr.11, 12 & O.IX, r.13--Service--Appellant personally served and his thumb-impression also obtained on order sheet-- Appellant failing to intimate his address for service as contemplated under O.VII1, r.11, C.P.C.--Court, held, competent to strike off defence of appellant under O.VIII, r.12, C.P.C. in circumstances.

Ch.Ghulam Mujtaba for Appellant.

Muhammad Arif for Respondents.

Date of hearing: 9th January, 1984.

This first appeal arises out of the order dated 21-1-1980 of the learned Civil Judge, 1st Class, Gujranwala, whereby he dismissed the application of the appellant under Order IX, rule 13, Code of Civil Procedure for setting aside the ex parte decree dated 21-2-1978 passed in a suit for specific performance filed by the respondents herein against the appellant herein.

2. The facts relevant for disposal of this appeal are that the respondents herein instituted a suit for specific performance of a contract of sale dated 2-1-1975 in respect of agricultural land measuring 68 kanals and 14 marlas situate in village Chahal Kahna Tehsil and District Gujranwala and obtained an ex parte decree on 21-2-1978. The appellant herein filed an application under Order, IX, rule 13, C.P.C. for setting aside the ex parte decree but the same was dismissed on merits, as well as, being barred by time by order, dated 21-1-1980 of the learned Civil Judge, 1st Class, Gujranwala. The appellant herein preferred an appeal against the said order on 8-3-1980 before the learned District Judge, Gujranwala, which was admitted to a regular hearing with notice to the opposite party but ultimately by order, dated 13-10-1980 the learned District Judge, Gujranwala, returned the memorandum of appeal to the appellant for presentation before a competent Court as valuation of the suit for the purposes of court-fee and jurisdiction was fixed at Rs.70,000, inasmuch as, in terms of clause (a) of subsection (1) of section 18 of the West Pakistan Civil Courts Ordinance, 1962, an appeal from a decree or order of a Civil Judge shall lie to the High Court if the value of the original suit in which the decree or order was passed exceeds Rs.50,000. In consequence, the appellant collected the memorandum of appeal on 25-10-1980 and presented the same in this Court on 28-10-1980 alongwith an application under section 5 read with section 14 of the Limitation Act, 1908 for condonation of delay. It was stated in the application that the delay in filing the appeal was due to the erroneous advice of his counsel at Gujranwala.

3. Learned counsel for the respondent has taken two-fold preliminary objection. First, the appeal in the present form is not competent, inasmuch as, the appellant could not file a fresh memorandum of appeal without leave of the Court which was never obtained; secondly, it was barred by time. The order under challenge was passed by the learned Civil Judge, 1st Class, on 21-1-1980, whereas, the appeal was presented in this Court against the said order on 28-10-1980. Learned counsel for the respondents placed reliance on Saeedan Bibi v. Ali Hussain 1975 S C M R 261, Abdul Ghani v. Ghulam Sarwar P L D 1977 S C 102 and Manzoor Hussain v. Muhammad Ali P L D 1982 Lah. 632, to contend that he alleged misconception of the appellant's counsel with regard to the correct forum is not a sufficient ground for condonation of delay under all circumstances.

4. Ch.Ghulam Mujtaba learned counsel for the appellant in reply to the preliminary objections submitted that the appellant cannot be penalised for the erroneous advice of his counsel. He further submitted that the ex parte decree was obtained by the respondents by effecting substituted service on the appellant herein by wilful suppressions of his correct address, inasmuch as, the appellant herein was residing at Rajanpur, but summonses were sent at his previous address at Gujranwala and this by itself is a sufficient ground for annulling all the proceedings before the trial Court.

5. I have heard learned counsel for the parties at length, carefully examined the record, the decisions cited at the bar and have come to the conclusion that no sufficient cause has been made out for condonation of the delay. The learned Advocate for the appellant herein who appeared before the learned District Judge showed gross negligence to acquaint himself with the provisions of section 18 of the West Pakistan Civil Courts, Ordinance, 1962, which suffers from no ambiguity. It is, therefore, difficult to hold that the appellant was diligently and honestly prosecuting the case before the learned District Judge in good faith. A valuable right has accrued to the respondents in consequence of the impugned decree of the trial Court and, therefore, they cannot be penalised for the alleged mistaken advice of the appellant's counsel which does not appear to be bona fide.

6. I also find force in the submission of learned counsel for the respondents that memorandum of appeal could not be amended by the appellant without leave of the Court. The appeal is, therefore, not maintainable in its present form.

7. As regards the alleged defect pointed out by learned counsel for the appellant regarding substituted service, suffice it to say that the appellant herein was personally served on 12-5-1976. He appeared before the trial Court on 2-6-1976 and his thumb-impression was also taken on the order sheet. He, therefore, ought to have intimated the trial Court his new address for service as contemplated under Order VIII, rule 11, C.P.C. This was not done, therefore, in terms of Order VIII, rule 12, C.P.C., the Court was competent to strike off the defence of the appellant/defendant.

In view of the above, the appeal fails and is hereby dismissed, but there shall be no order as to costs.

M.Y.H. Appeal dismissed.

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