Lawyers Directory Listing
Unlock direct contact details for up to 10 lawyers so you can call or WhatsApp the right legal professional and move your matter forward with confidence.
Civil Appeal No.20 of 1986, decided on 5th February, 1987.
‑‑‑Ss.5 & 14‑‑Condonation of delay‑‑Mistaken advice of counsel‑‑Where there is due care and caution and no negligence on the part of counsel, mistaken advice is condonable, otherwise ignorance of law is no excuse.
P L D 1983 S C 262 distinguished
P L D 1983 S C 262 fol.
[Case‑law referred].
‑‑‑Appellate Court cannot pass verdict on a point when there is no finding on such particular point by the Trial Court.
Shaikh Abdul Aziz for Appellant.
Nazir Ahmad Wani for Respondent.
Date of institution: 12th May, 1986.
.‑‑This is an appeal against the judgment and decree of the learned Sub‑Judge 1st Class Athmuqam dated 29‑4‑1984, whereby the learned Sub‑Judge passed a decree to the extent of Rs.1,500 only and dismissed the suit for the recovery of the full amount prayed for i.e. Rs.17,210.
2. The appellant instituted a civil suit for the recovery of Rs.17,210 against the Managing Director, A . K. L. A . S . C . , Mirpur and Forest Manager, A.K.L.A.S.C., Muzaffarabad before the learned Sub‑Judge 1st Class Athmuqam on 10‑10‑1982. According to the plaintiff, the A . K . L. A . S . C . Department stocked some timber in the plaintiff's land under survey Nos.749/643, 611/643 and 642/206 measuring 9 Kanals and 16 Marlas situate in Village Shahkot, Tehsil Athmuqam. It was averred in the plaint that the defendants damaged the walls of the land and also did not pay the full rent of the hired property. The defendants controverted the suit and replied that they had nothing to pay to ,the plaintiff. The trial Court, after taking into consideration the pleadings of the parties, framed as many as 11 issues and after recording some evidence adduced in the case and after hearing the parties, proceeded to dismiss the suit, although passed a decree to the extent of Rs.1,500 only in favour of the plaintiff against the defendants.
3. The plaintiff went in appeal before the learned District Judge, Muzaffarabad against the judgment and decree of the learned Sub‑Judge, Athmuqam on 21‑10‑1984 but the learned District Judge returned the appeal to the plaintiff‑appellant on 11‑5‑1986 on the ground that the learned District Judge had no jurisdiction to hear the appeal and that the same should be presented before the High Court. The plaintiff- appellant thereupon presented the appeal before the High Court on 12‑5‑1986.
4. The learned counsel for the respondents, Mr. Nazir Ahmed Wani, Advocate, has raised the preliminary point that the appeal was time barred because the appellant wasted almost two years before the learned District Judge, Muzaffarabad and, therefore, this appeal deserves dismissal.
5. On the other hand, Shaikh Abdul Aziz, the learned counsel for the appellant, replied that Khawaja Aslam Habib, Advocate was a junior Advocate and, therefore, he was misled by the fact that the decree passed in favour of his client amount to Rs.1,500 only and that for the recovery of the other money the appeal was competent before the learned District Judge, Muzaffarabad. This was a mistaken advice but a lawyer like Khawaja Aslam Habib could not be expected to know the law fully and, therefore, his client should not be penalized for the mistake of his lawyer and, therefore, the delay should be condoned for the interests of justice in the light of P L D 1959 Azad J s K 55 and P L D 1963 Azad J & K 38 (41) A.
6. Mr. Nazir Ahmad Wani Advocate has cited the following authorities: ‑----
P L D 1966 Lah. 319; P L D 1967 Azad J 6 K 47; P L D 1970 Lah. 493; P L D 1974 Azad J & K 5 and P L D 1977 S C 102.
He has also referred to the case of Civil Appeal No.41 of 1978 titled Muhammad Hussain Khan v. Abdul Karim and Civil Appeal No.42 of 1978 titled Abdul Karim v. Muhammad Hussain Khan decided by the Supreme Court of Azad Jammu and Kashmir on 7‑3‑1984.
7. We have considered the arguments addressed at the Bar and have perused the record of the case. I have also recorded the statement of Mr. Maqbool Khan, Assistant Forest Manager, A.K.L.A.S.C. on 30‑11‑1986.
8. Let me in the very beginning point out that there has been some difference of opinion about the benefit to be given to the litigants under sections 5 and 14 of the Limitation Act. Right from 1883, when the case of Balwant Singh and another v. Gumani Ram 5 All. 591, which was decided by Straight and Tyrell, JJ. the Judges have differed as‑ to whether the benefit of sections 5 and 14 of the Limitation Act should be given or not. It was held in 1883, in the abovementioned case, that section 14 had been specifically applied to suits only and not to appeals because section 5 has given a large and unfettered discretion to the appellate Courts in admitting time‑barred appeals and that the circumstances contemplated by section 14 would ordinarily constitute a "sufficient cause" within the meaning of section 5 of the Limitation Act.
In 1886 the Calcutta High Court in Huro Chandar Roy v. Sarnamoyi, 13 Cal. 266, took the same view. The High Court held that the appellant was entitled to the benefit of section 5 of the Limitation Act.
In 1887, a contrary view was seemingly taken by East and Birdwood, JJ. of the Bombay High Court. It was held that the mere ignorance of law cannot be recognized as a sufficient cause and that the delay is not excusable because to give the benefit of section 5 would amount to putting a premium on ignorance.
In 1888, Justice Mahmood of Allahabad High Court considered this point in the famous case of Ramjiwan Mal v. Chand Mal 10 All. 587. There was no explanation for the inordinate delay and, therefore, it was held that there was no escape from the mischief of limitation as the people are supposed to know the law of limitation. The appeal was held as time‑barred. The maxim of "Ignorantia legis menimum excusat" was considered.
In 1888, a Full Bench of the Punjab Chief Court adopted the earlier Allahabad view in Karam Bakhsh etc. v. Daulat Ram etc. 183 PR 1888, and held that the time spent in review proceedings was to be deducted to determine as to whether the appeal was time‑barred or not.
In 1889, the Madras High Court took the same view and the High Court gave the appellant the benefit of sections 5 and 14. The learned Judges relied upon 13 Cal. 266 in their judgment given in the case of Krishna v. Chathappen 13 Mad. 269.
In 1897, the matter again went up for consideration before the Allahabad High Court in the case of Brij Mohan Das v. Maunu Bibi etc. (1897) 19 All. 348. The learned Judge did not follow 10 All. 587 and 12 Bom. 320 and approved 13 Mad. 269 and 13 Cal. 266. It was observed:‑---
"That a mistake of law can be made in good faith. Most Judges would probably admit from their own personal experience on Bench."
The present Limitation Act was passed in 1908 as it is known as Limitation Act of 1908.
The matter came under the consideration of the Privy Council in A I R 1917 PC 156. Their Lordships evolved the rule that after deducting the period which was deductable under section 14, it should be seen as to whether the appeal was or was not within time and thus the inactivity of the appellant after an appeal or review or suit is returned or held not competent is of no consequence as it is not necessary that he must immediately apply to the competent Court. The time begins from the first judgment appealed against and then there is a break from the date the appeal was filed in the wrong Court and the period of limitation fixed for the appeal ultimately filed would be resumed to run from the date the proceedings under section 14 terminated.
In 1918 P C 135 and in A I R 1928 Cal. 468 the same view prevailed.
In 1937, it was again confirmed in 1937 PC 276 and A I R 1937 Lah. 464.
In 1961, the same view prevailed. In this respect, A I R 1961 Orissa 54 and A I R 1959 Pat. 465 are referred to.
9. In P L D 1960 Lah. 801 (812‑813 F.D.B., it was observed:‑-----
"A litigant in order to be diligent can do no better than to engage a senior lawyers in his case. The lawyer, however, senior and eminent they may be, are after all human and for that reason fallible. It is the possibility of the occasional error in the case of the litigants and their counsel that is guarded against by section 14 and other similar sections of the Limitation Act. It will be totally wrong to regard a mistake committed by an eminent lawyer as a matter for which a litigant should be punished, as has been done in this case."
In P L D 1962 (W.P.) Kar. 510 (516) D.B. Mr. Justice Anwarul Haq (as he then was), after discussing the authorities I L R 22 All. 248 F. B., 108 IC 1.34 and 40 C W N 914 observed in paras. 15 and 16:‑----
"15. It will be seen, therefore, that section 14 of the Limitation Act comes into play if the following conditions are fulfilled:
(a) That the plaintiff has been prosecuting another civil proceeding against the defendant;
(b) That he has been prosecuting it with due diligence;
(c) That this proceeding is founded upon the same cause of action;
(d) That it is prosecuted in good faith; and
(e) That it does not bear fruit because the Court is unable to entertain it due to defect of jurisdiction or other cause of a like nature.
16. The phrase "other cause of a like nature" is not capable of being defined with any precision of exactitude and it is not easy to lay down a hard and fast rule or to enumerate all the causes which should be regarded as of a like nature to absence of jurisdiction; but any cause, unconnected with want of diligence or good faith on the part of the plaintiff, which precludes the Court from hearing the former suit or proceedings of the plaintiff on merits, is a cause which comes within the purview of section 14 of the Limitation Act. It would generally be a cause arising out of a bona fide mistake of law, procedure or fact which precludes the Court from considering on merits the issues involved in the case."
In P L D 1963 (W.P.) Lah. 414 (417)D, Justice Anwarul Haq condoned delay under section 14 of the Limitation Act due to the bona fide mistake of a senior counsel. The appeal was treated as a revision.
In P L D 1970 Lah. 493 (496‑497), after considering P L D 1958 Lah. 340, P L D 1960 Lah. 801, P L D 1958 Lah. 325 and A I R 1917 PC 156, did not condone the delay as the wrong advice resulted from want of reasonable skill on the part of the counsel in that case. The Court relied upon A I R 1918 PC 135 and (1978)48 L.J. Ex.167.
In that case, the delay of 19 days in filing forma pauperis appeal was sought to be condoned on the ground that the counsel, upon requisitioning the relevant book from the Librarian of the High Court, was supplied with an obsolete book containing Limitation Act of 1971 wherein the limitation period for the particular case was laid as 90 days instead of 30 days as provided in the Limitation Act, 1908, was refused and the High Court held:
"The counsel did not care to consult the current statute ...."
and applying the rule expressed by Brett L.P. in Highton v. Traherne (1878) 48 L.J. Ex.167, the benefit of section 5 of the Act was not given..
Paras. 3 and 4 of that authority are reproduced below from pages 494‑496:‑
"3. The short ground on which these two appeals are likely to fail is the question of limitation. The objection taken on behalf of the respondent is that as the period of limitation provided for filing an appeal in forma pauperis is thirty days under Article 170 of the Limitation Act of 1908 (hereinafter called the Act), the appeals having been filed late by nineteen days are liable to be dismissed. The explanation given for this belated filing of the appeals is forma pauperis by learned counsel for the appellants is that the day the suits were dismissed by the trial Court, the appellants contacted him in the High Court Bar Association, where he was sitting at the moment and informed him of the dismissal of the suits. On enquiry as to the period of limitation for filing an appeal, learned counsel states that he asked the Bar Librarian to give him a copy of the Limitation Act and the book given to him was "Tagore Law Lectures on Limitation by U.N.Mitra, and he after looking up the schedule of the Limitation Act found the period prescribed as ninety days given in Article 162 appearing at page 611 of the said book and informed the appellants that the period was ninety days. It has been further stated at the Bar that as a matter of fact learned counsel was not conscious of the fact at the relevant time that he had looked up the Limitation Act of 1871 instead of 1908 and the book given to him was of the year 1892, an obsolete book. In the application under section 5 of the Limitation Act, the reason given is that "the petitioner was advised that the limitation for filing an appeal in the High Court is 90 days, while under Order XLIV, rule 1, C.P.C. he ought to have made an application within 30 days". Learned counsel for the appellants on these facts has argued that mistaken advice by counsel has always been considered to be sufficient for condoning delay in filing appeals or choosing a wrong forum for appeal and on that hypothesis delay in the instant case be also condoned as it was a bona fide mistake on the part of the counsel and a resultant bona fide mistake by the party in coming to this Court, beyond time. In support of his contention learned counsel has referred to Maqsood Ali v. Ali Haibat Khan and 2 others P L D 1958 Lah. 340, Punjab Province v. Nisar Ahmed P L D 1960 Lah. 801, Food Staff Supply Company v. Irfan Cotton Oil Mills and 2 others P L D 1958 Lah. 325, and Kunwar Rajendra Bahadur Singh v. Rai Rajeshwar Beli and others A I R 1937 PC 276. ON the other hand, learned counsel for the respondent has argued that a mere mistake or ignorance of law is not per se sufficient reason for asking the Court to exercise its discretion under section 5 of the Act. The mistake of law or the mistaken advice by counsel should be proved to be bona fide and where due care and attention is not established, no relief can be claimed by the party concerned. He has referred to the following observations of their Lordships of the Privy Council in Brij Indar Singh v. Lala Kanshi Ram and others A I R 1917 PC 156, where the delay was due to a wrong proceeding being taken under a bona fide mistake of law:‑---
"Now if the matter were entirely open, inasmuch as a mere mistake in law is not per se sufficient reason for asking the Court to exercise its discretion under section 5 (instances of which are given in some of the cases cited by the learned Judge), there would be a good deal to be said in argument in favour of making the rule universal, and upholding in its entirety the ruling given in the case of Ramjiwan Mst. v. Chand Mal (1888) AWN 258 above cited. But the matter is not open. To, interfere with a rule, which after all is only a rule of procedure, which has been laid down as a general rule by Full Benches in all the Courts of India, and acted on for many years, would cause great inconvenience, and their Lordships do not propose so to interfere".
The next authority dealing with the question whether mistake of a lawyer can be condoned under the section and the party who has acted on such mistaken advice is not prevented from relying upon it for claiming the indulgence under this section referred to by learned counsel for the respondent, is Sunderbai and another v. Collector of Balgoun and others A I R 1918 PC 135. The passage relied on in the judgment appears at page 137 of the report:‑------
"The fact that the defendants had acted on mistaken advice as to the law in appealing to the High Court in 1910 did not preclude them from showing that it was owing to their reliance on that advice that they had not presented the appeal to the Court of the District Judge within the prescribed period of limitation."
He has also invited our attention to Foodstuff Supply Company v. Irfan Cotton Oil Mills and 2 others, cited by learned counsel for the appellants, wherein it has been observed that "time can be extended if counsel, without being negligent, adopted a mistaken view of law on the basis of which he filed the appeal in the wrong Court" and argued that since learned counsel for the appellants has been negligent there is no excuse for extending the time.
4. The bona fide mistake of fact on the part of the party may be a sufficient cause in a particular case. The test of bona fides is whether it was one committed in spite of due care and attention. A mistake arising from negligence or committed without any real excuse or which could have been averted by proper enquiry has always been held to be not a sufficient cause. Similarly a mistake of law of party or its agent, which is committed bona fide, i.e. in spite of due care and attention has been regarded as a sufficient cause by the superior Courts. The earliest case is that of Highton v. Treherne (1878) 48 L J Ex. 167 in which Brett, L.J. while considering when an advice by the legal practitioner may be relied upon as an excuse for extending the time, observed:‑-----
"In cases where a suitor has suffered from the negligence or ignorance or gross want of legal adviser, and meantime the suitor must suffer. But where there has been a bona fide mistake, not through misconduct nor through negligence nor through want of reasonable skill, but such as a skilled person might make, I very much dislike the idea that the rights of the client should be thereby forfeited."
This view is in line with the judgments of the Judicial Committee in Brij Indar Singh v. Lal Kanshi Ram and others and Sunderbai and another v. Collector of Belgaun and others and has been generally followed by the British Indian High Courts and if the mistake has been found to have proceeded from the culpable negligence of the legal adviser it has not been considered a sufficient cause. This statement of law has been re‑affirmed in Kunwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali and others in the following words:‑-----
"Mistaken advice given by a legal practitioner may in the circumstances of a particular case give rise to sufficient cause within the section though there is certainly no general doctrine which saves parties from the results of wrong advice."
Keeping in view the above enunciation of law, it has to be ascertained in each and every case whether or not the mistaken advice was the result of absence of dine care and attention. If the Court comes to the conclusion that it is due to want of reasonable skill on the part of the counsel, it will stand on the same footing as negligence. A normal standard of efficiency is expected of a legal adviser and where an advice is given which no legal adviser of reasonable skill would be expected to give, it must be considered that the adviser acted negligently and in such a case there is no sufficient cause. On the other hand, if the advice proceeds on a mistake which even if a practitioner possessing reasonable skill is likely to commit, then the mistaken advice would be a sufficient cause."
In P L D 1970 S C 287, leave to appeal was refused in a case and it was held:‑--
"A wrong advice given by a lawyer may, therefore, in a given case constitute sufficient cause, but a litigant who has no knowledge of the law of limitation does not act in good faith or with due diligence if he takes it upon himself to determine the time for filing a suit, an appeal or application in disregard of the time prescribed by law. The S.A.O., was, therefore, rightly dismissed as barred by time by the High Court."
In P L D 1971 Lah. 332, prayer for condonation of delay under section 5, Limitation Act, 1908 was pressed on the ground that due to certain judgment of the High Court, Registry was under the impression that such appeal was not maintainable. It was subsequently found that the ruling of the High Court upon which the Registry had been under such impression was not relevant and the counsel of the appellant did not point out this fact to the Registry in time. Such point was pointed out by the Counsel to Registry after the expiry of the prescribed limitation period when the appeal was admitted by the Registry. It was held that there was no valid excuse for condonation of delay because the counsel must have pointed out to the Registry the real position within the limitation period [(338) A].
In the circumstances of the case it was held that any advice could have been regarded as a valid excuse for the delay if it could be held to be based on a bona fide mistake but if the mistake had been committed on account of negligence, in not studying the law on the subject and by not exercising due care and caution no ground for condoning the delay existed in law. A valuable right having been created in favour of a party it was not liable to be defeated on flimsy grounds [(338) B].
The High Court referred to:‑--
"P L D 1965 S C 300; P L D 1966 S C 276 and P L D 1964 Pesh. 182. and relied upon:‑
1968 S C M R 537 (1), and P L D 1966 Lah. 319.
In 1972 S C M R 23 F.B. (28) C, the learned Supreme Court of Pakistan condoned delay of two days because the petitioner was found having been bona fide pursuing his remedy before some other authorities. The appeal was allowed in that case.
In 1974 S C M R 158(159) A delay was not condoned for lack of due diligence on part of the counsel engaged in that case.
In 1975 S C M R 259 (260‑261) A & B, it was held that the High Court had properly exercised its discretion in refusing to condone delay due to gross lack of care on the part of the counsel who had alleged misconception on his part with regard to the venue of the appeal. The failure to acquaint himself with the relevant provisions of law relating to the jurisdiction of Court was held as negligence.
In P L D 1976 Kar. 811 (816) F, negligence was not considered as a good ground for delay. The High Court of Karachi relied upon 1975 S C M R 356.
In P L D 1977 S C 102 (107) E, it was held that under sections 5 and 14 of the Limitation Act, there should be sufficient cause and good faith. P L D 1976 Kar. 891 was overruled by Mr. Justice Durab Patel (as he then was). The argument was that the petitioner was not at fault for filing his appeal in the wrong Court. It was observed at pages 107, 108 and 109:
"In any event, the conduct of other parties cannot help the petitioner to make out sufficient cause under section 5 of the Limitation Act. It is true that this section does not define sufficient cause but the meaning of this expression is too well known to need recapitulation, and we would only refer here to the observations of Kaikaus, J. on this question in Ata Ullah v. Custodian, Evacuee Property P L D 1961 S C 236. "Under section 5---------there has to be a finding of sufficient cause. In pre‑Partition India sufficient cause had been defined as circumstances beyond the control of the party and I do not know of any case wherein this definition of sufficient cause had been rejected." We re‑affirm these observations and we may explain here that the burden is on the appellant to prove that his delay in filing his appeal was on account of circumstances beyond his control, because, as observed by Sir George Rankin in Kunwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali and others A I R 1937 PC 276‑‑in applying section 5 (of the Limitation Act)‑‑the analogy of section 14 (which applies only to suits) is an argument of considerable weight'". Section 14 permits the exclusion of time only for proceedings "prosecuted in good faith", therefore, in order to make out sufficient cause under section 5 an appellant must prove that he had acted in good faith in presenting his appeal in the wrong Court. Good faith has been defined in clause (7) of section 2 of the Limitation Act as: "good faith": nothing shall be deemed to be done in good faith which is not done with due care and attention". Now if an appellant proves that he filed his appeal in the wrong Court despite due care and attention it means that the presentation of the appeal in the wrong Court was on account of circumstances beyond his control. No doubt, what such circumstances are must depend on the facts and circumstances of each case, and in Kunwar Rajendra Bahadur Singh's case, Sir George Rankin set aside the finding of the Chief Court that the appellant's Advocate had been very negligent in filing the appeal in the wrong Court because the facts relevant to the question of the Court in which the appeal was to be filed were very complicated. Similarly, an appellant can bring his case under section 5 if he can show that there is some ambiguity in the law governing the forum in which the appeal is to be filed. Or, to take another example, an appellant can rely on section 5, if he can show that he was misguided by the practice of the Court or by an erroneous judgment of the Court. But, in the instant case, the provisions of section 18 of the West Pakistan Civil Courts Ordinance are plain beyond any doubt and as there is also no proper forum for filing the appeal, it is clear that the presentation of the appeal in the District Court was an act of gross negligence.
Mr. Bilal, however, stated that his submissions were supported by judgments of the Lahore High Court and by a Karachi case. The judgment of Kaikaus, J., to which we referred earlier, is fatal to this petition, but Mr. Bilal relied on a judgment reported in Abdul Rashid and another v. Muhammad Hafeez and another P L D 1963 Lah. 414. That case related to the construction of section 15 of the West Pakistan Urban Rent Restriction Ordinance read with the provisions of the Civil Procedure Code which had been amended and as the learned Single Judge was of the view that there was ambiguity in the provisions relating to the forum in which the appellant had to file his appeal the judgment is distinguishable on the facts. Then, as to Arura v. Karam Din A I R 1947 Lah. 76 or Muhammad Latif v. Muhammad Hafeez and others P L D 1951 Lah. 479 the appellants had initially filed their appeal in the wrong Court, because they had been misguided by the judgments of the trial Court which had overruled their objections to the valuation of the suits filed by the respondents. Thus, in both these cases the principle actus curiae nemonim gravalsit was attracted, but that is not so in the instant case.
"However, the petitioner's case is supported to the hilt by a judgment of a learned (Single) Judge of the Sind and Baluchistan High Court reported in Farid Majid and another v. Muhammad Nawab P L D 1976 Kar. 891. The facts in this case were that a suit arising out of an application to make an award the rule of the Court was dismissed. The amount claimed in the suit far exceeded the pecuniary appellate jurisdiction of the District Court yet the appeal was presented in the District Court and, when it came up for hearing the respondent challenged the maintainability of the appeal. This objection was allowed and the appellant was permitted to represent his appeal in the High Court. As in the instant case the appeal was represented by an application after expiry of the period of limitation and was supported by an application under section 5 of the Limitation Act. The respondent opposed this application and relied on the judgment of the Baghdadul Jadid High Court in Said Muhammad v. Goma etc. PLD 1952 B J 8 and Mirza Habibullah v. Mahmooda Begum P L D 1952 B J 43, because in both these cases the appellants had to file their appeals in the High Court but had on the advice of their Advocates filed the appeals in the District Court, with the result that the period of limitation had expired when the appeals were represented in the: High Court, therefore, in each case the appellants had filed applications for condoning delay under section 5 of the Limitation Act. The learned Judge of the Baghdadul Jadid High Court were conscious of the hardship that would be caused to the appellants by the dismissal of their applications under section 5, but they dismissed them in view of the judgment of the Judicial Committee in Kunwar Rajendra Bahadur Singh's case and the judgments of the High Courts of the Sub‑continent for more than two decades. Unfortunately, the learned Single Judges of the Sind and Baluchistan High Court did not consider it necessary to examine these cases and condoned the appellant's delay with the observation, 'No doubt, the Advocate for the appellants who had presented the appeal to the District Court had made a mistake but I am not satisfied that it was due to gross negligence of counsel". With respect, the question was far too important to be disposed of by an ipse dixit, the moreso, as the result of this ipse dixit was to unsettle the settled law. It also escaped the attention of the learned Single Judge, that his view was contrary to the law declared by the Privy Council in Kunwar Rajendra Bahadur Singh's case. Therefore, the judgment in Farid Majid and another v. Muhammad Nawab is not good law."
In P L D 1982 Lah. 632 (634) A and B, it was held that a party, taking a matter before a wrong forum due to mistaken advice of the counsel, cannot take the benefit of the provisions of Limitation Act, 1908, particularly when no affidavit of the counsel was filed in support of the allegations.
Para. 7 of this authority is reproduced from page 634:‑------
" . . . As for the case of Punjab Province, Abdul Rashid and another and Kilachand Devachand and Co. (Private) Ltd., relied upon by the learned counsel for the appellants, their facts are different from those of the case in hand. Also, the view expressed there is no longer holding the field. The latest view on the point has been reflected in the cases of Abdul Ghani, Mrs. Ismat Tariq, Ch. Muhammad Sharif, Mrs. Ghulam Fatima, Wall Muhammad and 2 others and Mst. Mah Bibi, cited by learned counsel for the respondents. The cases of Abdul Ghani, Ch. Muhammad Sharif relate to section 14 of the Limitation Act while the cases of Mrs. Ismat Tariq, Mst. Ghulam Fatima, Wali Muhammad and 2 others and Mst. Mah Bibi are in respect of section 5 of the said Act. The trend of authorities now, therefore, is that if a party has taken a matter before a wrong forum due to the mistaken advice of his counsel he cannot take benefit of the said provisions of the Limitation Act. There is also no affidavit by the learned counsel, who assisted the appellants before the learned District Judge, to the effect that he had, in good faith, advised the appellants to file appeal before the learned District Judge. We are, therefore, not inclined to condone delay in the filing of the appeal before this Court. The appeal in hand is, therefore, dismissed, in limine, on the ground of limitation."
The matter came up before the Supreme Court of Pakistan in the case of Muhammad Hasham Khan v. The Chairman, Baluchistan Service Tribunal, P L D 1983 S C 262 (264) A and the four learned Judges of the Supreme Court Muhammad Afzal Zullah, Abdul Kadir Shaikh, S.A. Nusrat and Zaffar Hussain Mirza, JJ., held that the fact that section 14 was not in terms applicable to particular proceeding does not mean that section 5 did not apply. The delay was condoned in that case under section 5 of the Limitation Act and the appeal was allowed.
I would like to reproduce from pages 264 and 265:‑-
"..The legal question regarding application of section 5 of Limitation Act where section 14 thereof did not apply in terms is not difficult to understand in cases like the present one. No doubt it was held in Shah Muhammad v. Ghulam and another PLD 1979 S C 197 that section 14 of the Limitation Act nor section 5 thereof, could be attracted in that case; which involved filing of an appeal under section 96 of the C . P. C . as also an application for setting aside an ex parte decree under Order IX, rule 13 of C.P.C. But it cannot be said that section 5 of the Limitation Act did not apply because section 14 was not in terms applicable to a particular proceedings. The underlying principles would not ordinarily be excluded when considering a case under section 5 of the Limitation Act. In that context it was held in Abdul Ghani v. Ghulam Sarwar P L D 1977 S C 102, that in proper cases the considerations mentioned in section 14 could be noted when applying section 5 as well. And although on the facts of that case different view was formed but the law was laid down as follows:‑-----
"As observed by Sir George Rankin in Kunwar Rajendra Bahadur Singh v. Rai Rajeshwar Sall and others A I R 1937 PC 276‑‑in applying section 5 of the Limitation Act‑‑the analogy of section 14 (which applies only to suits) is an argument of considerable weight." Section 14 permits the exclusion of time only for proceedings "prosecuted in good faith", therefore, in order to make out sufficient cause under section 5 an appellant. may prove that he had acted in good faith in presenting his appeal in the wrong Court. Good faith has been defined in clause (7) of section 2 of the Limitation Act as, 'good faith' nothing shall be deemed to be done in good faith which is not done with due care and attention." Now if an appellant proves that he filed his appeal in the wrong Court despite due care and attention it means that the presentation of the appeal in the wrong Court was on account of circumstances beyond his control. No doubt, what such circumstances are must depend on the facts and circumstances of such case, and in Kunwar Rajendra Bahadur Singh's case. Sir Geaorge Rankin set aside the finding of the Chief Court that the appellant's Advocate had been very negligent in filing the appeal in the wrong Court because the facts relevant to the question of the Court in which the appeal was to be filed were very complicated. Similarly, an appellant can bring his case under section 5 if he can show that there is some ambiguity in the law governing the forum in which the appeal is to be filed. Or, to take another example, an appellant can rely on section 5, if he can show that he was misguided by the practice of the Court or by an erroneous judgment of the Court."
A practical application of the foregoing principles is also found in Akbar v. Sadiq and others 1972 S C M R 23 and, the observations made at page 261 of Federation of Pakistan v. Muhammad Siddiq P L D 1981 S C 249 are not irrelevant in this behalf.
In this case it is important to note that this Court had dealt with the question of limitation thrice before the Tribunal passed the impugned order twice at the leave stage and once in the remand order. It was not even suggested therein that the effort of the appellant to seek remedy from this Court was mala fide. Had it been so the observations in the order dated 18‑1‑1978 would not have been made, nor the case would have been remanded. The Tribunal obviously misdirected itself to hold that when seeking leave to appeal from the Supreme Court or when attempting to get certificate from the High Court to file such an appeal, the appellant was pressing his grievance in a "wrong forum wilfully".
It is not difficult to imagine that if the Tribunal would not have ignored the observations earlier referred to, with regard to it being a proper case for condonation of delay under section 5 of the Limitation Act, the result might have been different. The tribunal's failure to follow the same raises a question of general importance whether it could do so when the observation was its own or it was by the Supreme Court, in the same case. The answer obviously is in the negative. We accordingly rectify the position. This appeal is allowed with costs. The impugned order is set aside, and the delay is condoned under section 5 of the Limitation Act. The case is remanded once again to the Tribunal for the decision of the service appeal, on merits."
In P L D 1984 S C 385 it was held that the law as it stands is that indulgence and condone delay where time was lost by prosecuting remedy before wrong forum an account of bona fide mistake or error of counsel which reasonable and prudent man despite exercising due diligence and caution might have committed. Where, however, the mistake in approaching the wrong forum is committed by him due to gross negligence and carelessness and it does not appear that he has shown due diligence and caution before moving the said wrong forum, the only remedy for the unfortunate client of such a counsel appears to be to sue him for damages for the loss suffered on account of his gross negligence (387).
In P L D 1984 Azad J & K 1, my learned brother Mr. Justice Sardar Muhammad Ashraf Khan, J. held that the appellant was entitled to the benefit of section 14 of the Limitation Act as she had been pursuing her appeal in good faith before the Additional District Judge on the advice of her counsel. The appeal was accepted in that case by the High Court.
In 1984 S C M R 890, condonation of delay was sought on the ground of ill‑advice of the counsel. It was held that the ground of ill‑advice was not acceptable and no condonation of the delay could be made in circumstances.
In 1986 C L C 456 (462) B & C, it was held that the conditions for the deduction of time from period of limitation were that party claiming such deduction must have prosecuted earlier proceedings with due diligence and good faith.
I reproduce a para. from page 462:‑---
"There is also another factor which prevents me from granting the benefit of section 14 of the Limitation Act to the appellants. I am of view that under section 14 of the Act indulgence can only be granted in case of a mistake or error committed by a reasonable and prudent man exercising due diligence and caution. Where the mistake of the learned counsel is unaccountable and the result of the carelessness and a total lack of due care and attention of the said conduct could be a ground for relief under section 14 of the Limitation Act. The Hon'ble Supreme Court expressed a similar view in Mirza Muhammad Saeed v. Shahabuddin and 8 others P L D 1983 S C 385."
In 1986 S C M R 64(68) E, the plea of wrong advice given by counsel resulting in delay was considered and it was held that the Court, being not satisfied that advice tendered to the petitioner in that case was bona fide and genuinely mistaken, declined to condone the delay. The case was dismissed as time‑barred.
In the case of Muhammad Hussain Khan v. Abdul Karim and Abdul Karim v. Muhammad Hussain Civil Appeals Nos.41 and 42 of 1978, decided on 7‑3‑1984, the learned Supreme Court of Azad Jammu and Kashmir relying upon:‑---
P L D 1966 Lah. 319; P L D 1967 Azad J & K 47; P L D 1970 Lah. 493; P L D 1974 Azad J & K 5 and P L D 1977 S C 102 did not condone the delay in that case because as observed at page 8 of that judgment, when the appeal was pending before the learned District Judge, an objection was raised by the opposite‑party on 7‑6‑1976 that the appeal was not competent to the learned District Judge, but no steps were taken by the appellant or his counsel to rectify the mistake by filing the appeal in the proper forum i.e. the High Court. That was a case of pre‑emption and the learned Supreme Court dismissed the appeal filed by Abdul Karim and accepted the appeal by Muhammad Hussain.
10. In the instant case, the decree was passed by the trial Court on 29‑9‑1984 and the appeal was preferred before the learned District Judge Muzaffarabad on 21‑10‑1984. A perusal of the order of the learned District Judge dated 11‑5‑1986 shows that the learned counsel for the appellant moved an application on 11‑5‑1986 that the appeal should be returned to him so that the same should be presented before the High Court. This order shows that an objection was raised from the other side on the date previous to the date of the order dated 11‑5‑1986. Therefore, the authority of the Supreme Court in the case of Muhammad Hussain Khan v. Abdul Karim does not hit this case because the learned counsel of the appellant did take a definite step to rectify the mistake on the date next to the date of objection. Therefore, the authority of the learned Supreme Court is clearly distinguishable in this case.
A perusal of that authority shows that it has to be ascertained in each and ever case as to whether or not the mistaken a vice was a result of absence of due care and caution. I the Court comes to the conclusion that it was due to lack of reasonable skill on the part of the counsel, it will stand on the same footing as negligence. This is at page 7 of that authority.
11. I think that the law laid down by the four learned Judges of the Supreme Court of Pakistan reported in P L D 1983 S C 262 is correct. There is no conflict between the view of the Supreme Court of Pakistan and that of Azad Jammu and Kashmir. In fact, the authority of P L D 1983 S C 262 was not brought to the notice of the learned D.B. of the Supreme Court of Azad Jammu and Kashmir. However, the correct law is that if there is due care and caution and no negligence on the part of a learned Advocate, the mistaken advice is condonable. Otherwise, the ignorance of law is of no excuse.
12. Under the peculiar circumstances of this case, the delay spent in the wrong forum is hereby condoned. The reason is that the decree passed was for Rs.1,500 and the learned counsel, Mr. Habib Aslam, was misled by that figure.' There does not appear any negligence in the mistaken advice of the learned counsel for the appellant. When the objection was raised, he was not guilty of inordinate delay and applied for handing over the appeal back to him so that he should present it before the High Court.
As the appeal was presented before the High Court on 12‑5‑1986, i.e. on the very next date the appeal was returned to the learned Advocate for the appellant so there is no delay in going to the High Court. There is an application for condonation of delay which is supported by an affidavit. So, I give the benefit of section 5 of the Limitation Act ‑ to the appellant and hold that the appeal was not time‑barred under circumstances.
13. Now coming to the merits of the case, I think that the learned trial Court has not taken into consideration the fact that the plaintiff- appellant wanted damages for some. alleged loss caused to his property by the defendant. Mr. Maqbool Assistant Forest Manager, A . K . L. A . S . C . , in his statement dated 30‑11‑1986, has deposed that no rent was due to the plaintiff and all that he wanted was the damages caused to his property, although no damage was, in fact, caused to the property of the appellant by A . K . L. A . S. C . A perusal of the judgment of the trial Court shows that this aspect of the case has not been properly considered by the trial Court. The plaintiff‑appellant has averred in para. No.5 of his plaint that Rs.5,210 should be given to him as compensation for the loss caused to the wells and "Bannas" of the fields etc. In the written statement, the Managing Director, A . K . L. A . S . C . has not controverted this para. and has only replied that he has got no knowledge of the loss. The trial Court has not discussed the issues Nos. 2 to 8 and has simply mentioned in the judgment that issue No.l was clear. Unfortunately, the issues Nos. 6 and 7 are not happily worded but we shall not lay much stress on the framing of issues. The trial Court has not discussed the loss alleged in para. 5 of the plaint which was not denied by the defendant and, therefore, it is not possible for this Court to pass any verdict about the loss, caused to the property of the plaintiff appellant, especially when there is no finding on this particular aspect of the case by the trial Court.
Under these circumstances, this appeal is hereby accepted and the case is remanded back to the trial Court for recording a finding on the issue of the damages allegedly caused to the property of the appellant‑plaintiff in the light of para. 5 of the plaint. No order as to the costs.
M.B.A./298/H.A. Appeal accepted
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer