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(a) Civil Procedure Code (V of 1908)‑‑

‑‑‑Ss. 96 & 100‑‑Limitation Act (IX of 1908), S.5‑‑Delay in filing first appeal due to negligence of counsel‑‑Application fox condonation of delay supported by affidavit of counsel rejected by First Appellate Court and appeal dismissed‑‑Second appeal before High Court‑‑Delay in filing first appeal stated to have occurred due to misplacement of copies by counsel‑‑Held, even if explanation given by counsel about misplacement of copies was accepted, same would not constitute a valid ground for overlooking delay‑‑Misplacement of copies by appellant's counsel being act of great carelessness, delay in filing first appeal could not be condoned on that account‑‑Order of dismissal of first appeal on ground of limitation being unexceptionable, second appeal against same was dismissed in limine.

(b) Civil Procedure Code (V of 1908)‑‑

‑‑‑0. XX, R. 4(2)‑‑Judgment of First Appellate Court suffering from negligence in citations and facts of matter stated in precedent cases‑ High Court noted that First Appellate Court was negligent in writing judgment by incorrect citations of case‑law and facts of the matter in those citations‑‑First Appellate Court, held, did not carefully study precedent cases referred to by him in his judgment and also did not cite same correctly and properly.

Rana Abdul Hamid Khan for Appellant.

This regular second appeal is directed against his judgment and decree, dated the 9th March, 1987, whereby Mr. Ala‑ud‑Din Arshad Nagi, Additional District Judge, Narowal, District Sialkot, dismissed the first appeal preferred by the appellant, Syed Anwar Hussain, on the ground of limitation.

2. The said first appeal arose out of a suit brought by the respondent, Nazir Ahmad. His suit was decreed, by Civil Judge of Narowal, on 23rd November, 1986. Application for securing certified copies was made by the appellant on 24th November, 1986 and the same were supplied to him on 22nd December, 1986. The appeal was preferred by him on 31st January, 1987. As there was a delay of nine days, the appellant made an application, under section 5 of the Limitation Act, 1908, for its condonation stating that the copies had been misplaced by his counsel and that when the same "were traced the appeal was filed promptly". It was, therefore, pleaded that delay had occurred for reason beyond the control of his counsel. The above application was accompained by an affidavit of the counsel. The application, which was opposed by the respondent, was rejected by the learned Additional District Judge holding that the appellant's counsel was negligent and that the only remedy for the appellant was to sue him "for redressal of the grievance".

3. Learned counsel for the appellant relied on Mrs. Zubaida Begum v. Mrs. S.T. Naqvi (1986 S C M R 261) to contend that since the reason for not filing the first appeal in time was beyond the control of appellant's counsel, it was a fit case for condonation of delay. In the cited case, the Sind High Court condoned delay in the filing of second appeal before it on the basis of affidavit of the appellant's counsel stating that the reasons for not filing the second appeal in time were beyond his control. His order in this regard was objected to before the Supreme Court, but the Supreme Court declined to interfere observing that the learned Single Judge condoned delay in legitimate exercise of discretionary jurisdiction of the High Court. Precise reasons for seeking condonation of delay in the said case have not been spelt out in the judgment under report and, therefore, that judgment is of little avail to the appellant before me.

4. In Muhammad Nawaz and 3 others v. Mst. Sakina Bibi and 3 others (1974 S C M R 223) a delay of 59 days in filing Civil Petition for Special Leave to Appeal before the Supreme Court was explained as follows:‑

"..after the conclusion of the arguments in appeal in the High Court, the judgment was reserved on 10th February, 1972 and delivered on 22nd June, 1972 of which no intimation was given to them by their counsel Mr. Fazle Hussain. It was only on 12th September, 1972 when one of the petitioners came to enquire from the counsel, that he was informed that the appeal had been decided. But even then counsel did not inform him about the actual date of the decision. Later, on obtaining copy of the judgment it transpired that the judgment in the appeal was announced on 22nd June 1972. It is further stated that Mr. Fazle Hussain initially did not return the brief on the plea that it had been misplaced. It was only after obtaining a writing from the petitioners that they would not make any claim against him in respect of the case that the brief was returned to them."

The Supreme Court, however, refused to condone the delay stating that the "initial obligation was of the petitioners to enquire about the decision in their appeal, or to arrange with their counsel to inform them about the decision if it is announced in their absence"; and that "even if it be assumed that their counsel neglected to inform them that per se would not be a sufficient ground for condonation of delay, when a valuable right has accrued to the respondents ....". It was also observed by the Supreme Court that it was not "satisfied that the petitioners were diligent or took due care in the matter".

5. In Khalid Saigal v. National Investment Trust Ltd. and 2 others (1984 C L C 182) (Karachi), by his order, dated the 20th April, 1982, a Single Judge of the Sind High Court, on the original side, dismissed the application for setting aside an ex parte decree. Appeal against the order of the learned Single Judge was filed before the Division Bench. As there was delay of 15 days, the appellant made an application, under section 5 of the Limitation Act, for the condonation thereof stating that his "counsel in the proceedings before the learned Single Bench applied and obtained certified copy of the impugned order on 27th April, 1982 but did not inform the appellant about it and on account of reasons best known to him he did not inform the appellant about the dismissal of the application to set aside ex parte decree." Holding that it was "a case of gross negligence", the Division Bench observed:‑

" ........ it was initially appellant's duty to find out the date of passing of the order and his negligence cannot be condoned for he has not acted with due care and attention and he therefore, lacks good faith."

Delay was, accordingly, not condoned.

6. In Mirza Muhammad Saeed v. Shahab‑ud‑Din and 8 others PLD 1983 Supreme Court 385) it was ruled by the Supreme Court that the "Courts can show indulgence and condone the delay where time has been lost by prosecuting a remedy before a wrong forum on account of a bona fide mistake or error committed by a counsel, which a reasonable and prudent man despite exercising due negligence and caution might have committed." It was further held that 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 deligence and caution before moving the said forum; the only remedy for the unfortunate client of such a counsel appears to sue him for damages for the loss suffered on account of his gross negligence". It was also observed by the Supreme Court that if "such a remedy is exercised more frequently and counsel made to pay for their carelessness and negligence which results in such grave losses to their clients, some amelioration in the situation is possible." The principle laid down by the Supreme Court in the case of delay occurring due to filing of appeal, by a counsel, before a wrong forum, can safely be applied to other cases of delay for, which a counsel is responsible, such as delay in the instant case which is also alleged to have occurred due to misplacement of the copies by learned counsel for the appellant. Even if the explanation given by his counsel is accepted, it would not constitute a valid ground for overlooking the delay. If the learned counsel had taken care of the copies, as a reasonable and prudent man, by exercising due deligence and caution, the copies would not have misplaced. Being an Advocate he should have known that there were only 30 days for filing appeal before the learned Additional District Judge and if it was not preferred within the prescribed period it would be dismissed as time-barred. To my mind, the misplacement of copies by appellant's counsel was an act of gross carelessness and, therefore, delay in the filing of first appeal could not be condoned on that account. In this view of the matter order of dismissal of that appeal on the ground of limitation is unexceptionable.

7. Resultantly, this second appeal fails. It is dismissed in limine.

8. Before parting with this case I would like to point out than the learned Additional District Judge was negligent in writing the judgment under appeal. He cited 1985 C L C 182 in support of the view taken by him although the correct citation was 1984 C L C 182. Also, in another case cited by him, namely, 1974 S C M R 223, the digit "4" was not clearly legible inasmuch as the digit "5" had been B typed thereon. Titles of the said two cases were also not given. I had, therefore, to do lot of labour to find out those cases. It is also noteworthy that according to the learned Additional District Judge. it was laid down in the said two cases that "papers misplaced by the counsel is not a good ground for condonation of delay." The fact of the matter is that in the case of Khalid Saigal (1984 C L C 182)

discussed earlier, there was no plea of the misplacement of any paper. In the case of Muhammad Nawaz and 3 others (1974 S C M R 223), one of the submission made was that initially Mr. Fazle Hussain, learned counsel for the appellant, did not return the brief to the appellant on the plea that the same was misplaced but subsequently it was returned by him on obtaining an assurance, in writing, from the petitioners that they would not make any claim against him in respect of the case. There was no averment to the effect that certified copies needed for filing the appeal were misplaced. All this shows that learned Additional District Judge did not carefully study the precedent cases referred to by him in his judgment and also did not cite those cases correctly and properly.

A.A./A‑147/L Appeal dismissed.

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