Wapda Eployees Cooperative vs Muhammad Hassan Sattar etc.

Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

RFA-115/2026

WAPDA Employees versus Muhammad Hassan Sattar Cooperative Housing Society

JUDGMENT

Date of hearing: 10.9.2026 Appellant by: Mr. Athar Aziz Chaudhry, Advocate Respondents by: Mr. Muhammad Jawad Zulkifal, Advocate MALIK MUHAMMAD AWAIS KHALID, J:- Pithily, the facts leading to filing of instant appeal, are that the respondents instituted a suit for specific performance of agreement to sell dated 20.9.2014. During proceedings of the suit, the appellant was proceeded ex-parte. Thereafter, the evidence of the respondents was recorded ex-parte. The learned trial court after hearing ex-parte arguments on behalf of the respondents, decreed their suit ex-parte, vide impugned judgment & decree dated 28.9.2019, directing the appellant to issue allotment letters of plots in favour of the respondents. Being dissatisfied with the said judgment & decree, at first the appellant challenged the same through appeal before the District Judge, Multan on 28.10.2019 which was returned on 5.3.2026 and subsequently the appellant has preferred this appeal, along with application (C.M. No.2 of 2026) under Section 5 read with Section 14 of Limitation Act, 1908 (the Act) for condonation of delay, before this Court on 16.4.2026 mainly on the ground that delay occurred because of approaching the wrong forum. Hereinafter, the application for condonation of delay shall be called as ‘application’.

2.The learned counsel for the appellant has repeated the arguments taken as grounds in this appeal and prayed for acceptance of this appeal by setting aside the impugned judgment and decree dated 28.9.2019. Whereas, on the other hand, learned counsel for the respondents has converted the contentions of learned counsel for the

appellant while relying on Para 10 of Counter Affidavit dated 3.6.2026 submitted by the respondents, which is reproduced below:- “That the affidavit filed by the appellant in support of the application is vague, defective and non- compliant with the mandatory requirements of law including Section 139 CPC, Section 7 of the Oaths Act, 1878 and the applicable provisions of Volume IV, Chapter 12, Rules 11, 12, 14, 15 & 16 of the Lahore High court Rules and Orders. The affidavit fails to disclose any independent or material facts and is completely silent on the essential ingredients required for condonation of delay.”

3.We have heard the arguments of learned counsel for the parties and perused the available record.

4.According to office report, this appeal is time barred by 2294 days. In this regard, the ground taken by the applicant/appellant in the application is that initially the appellant filed appeal under Section 96 CPC before the District Judge, Multan which was admitted and notices were issued to the respondents and finally the same was returned on 5.3.2026 because of lack of jurisdiction and after returning of memorandum of appeal to the appellant, he moved the instant appeal without any further delay. Perusal of record reveals that in this case the impugned judgment and decree was passed on 28.9.2019, whereas the appeal before the District Judge was filed on 28.10.2019 which remained pending there till 5.3.2026 i.e. about 6 years, 4 months and 5 days. The instant appeal was filed before this Court on 16.4.2026, which has effectively been filed after a delay of 2294 days (excluding the statutory period of limitation), therefore, the same is hopelessly time barred. The contention of learned counsel for the appellant is that delay caused because of pursuing the matter at a wrong forum. The forum of appeal is regulated by the jurisdictional value in the plaint. Under the law, there could be no doubt or complication to determine the forum of appeal. Sections 5 & 14 of the Act would come into play only if the delay appears to be condonable because of prosecuting the case with due diligence. It is settled law that for bringing the case within the ambit of principles governing Section 14 of the Act, the appellant has to show that he prosecuted his remedy before the wrong forum in good faith. Choosing wrong forum

because of lacking due care and attention would not be considered as acts done in good faith. The learned counsel for the appellant has not been able to prove that the appellant followed the remedy before a wrong forum acting with due care and caution, as the appeal remained pending before the District Judge for more than 6 years. The conduct of the appellant in filing appeal before a wrong forum, therefore, would be considered on account of act of negligence of the appellant1.

5.Section 14 of the Act permits the exclusion of time only with certain pre-conditions, which read as under for ready reference:- “Exclusion of time of proceeding bona fide in Court without jurisdiction.– (1) In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and 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.

(2)In computing the period of limitation prescribed for any application, the time during which the applicant has been 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.”

Therefore, in order to make out the case for exclusion of time under Section 14 of the Act, 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 sub-section (7) of Section 2 of the 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 Secretary to Government of Khyber Pakhtunkhwa Communication and Works Department, Peshawar and others vs. Messrs Parcon Associate Government Contractors through Muhammad Haroon and others (PLD 2025 SC 371), Ayaz Mehmood vs. Musadaq Riaz and 2 others (2024 CLC 357), Khan Bahadar and 6 others vs. Secretary, Ministry of Religious Affairs and Interfaith Harmony, Islamabad and others (2022 CLC 178), and Muhammad Younas through legal heirs and others vs. Abdul Rehman through legal heirs and others (2017 CLC Note 198).

of circumstances beyond his control. No doubt, what such circumstances, must depend on the facts and circumstances of each case, and in the case of Kunwar Rajendra Bahadur Singh vs. Rajeshwar Bali decided on 18th June, 19372, Mr. George Rankin, J. 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 presentation of the appeal in the District Court was an act of gross negligence3.

6.From the perusal of Section 14 of the Act, it appears that time spent in pursuing the proceedings before wrong appellate forum, cannot be excluded, for the purposes of filing of an appeal and in case appeal is barred by time the provision of Section 5 of the Act can only be invoked, that too, by showing the sufficient cause. The two expressions "due diligence" and "good faith" in Section 14 do not occur in Section 5 of the Act which enjoins only "sufficient cause". The expressions "due diligence" and "good faith" used in Section 14 of the Act cannot be equated with the expressions "sufficient cause" used in Section 5 of the Act. If it were so, the Legislature could have used identical expressions in both sections particularly when "good faith" has been defined in Section 2(7) of the Act. The power to condone the delay and grant an extension of time under Section 5 of the Act is subject to judicial discretion based on individual cases, whereas under Section 14 of the Act, exclusion of time is on the satisfaction of the strict conditions prescribed in it. Therefore, it is observed that delay of time in filing of appeal, application or suit may be condoned but subject to plausible and reasonable explanation.

(Equivalent Citations: (1937) 39BOMLR 1021)

Abdul Ghani vs. Ghulam Sarwar (PLD 1977 SC 102)

7.While satisfying the said conditions as discussed above, one, who seeks condonation of delay, has to explain each and every day delay but in the instant case, the appellant could not put-forward reasonable and plausible justification/ explanation for filing the appeal after about 2294 days and the ground taken up by the appellant that he preferred earlier appeal before the District Judge, cannot be considered as a reasonable justification. Therefore, time consumed in pursuing appeal in wrong forum cannot be condoned here. Time spent before wrong appellate forum could not be excluded for the purpose of filing of an appeal. The Hon’ble Supreme Court observed that mistaken advice of counsel did not automatically and per se constitute a sufficient cause for condonation of delay as a matter of course and routine, rather, the appellant had to specify the reasons with clarity and precision which prevailed with the counsel and led him to commit the mistake and such application must also be supported by an affidavit. Mere incompetence of the counsel, inadvertence, negligence or ignorance of law and/or overlooking of the record by him/her could not constitute sufficient cause ipso facto, but the factor(s) which misled the legal counsel, including any ambiguity in the law, causing him to file the appeal before the wrong forum must be indicated. It was further observed that Courts must insist that applications for condonation of delay must specify with particularity as to what factors misled the counsel and gave him cause to form his unfortunate opinion with respect to the (wrong) forum adopted and thereafter the said factors must be proved on record. It is then for the court to decide if, on the basis of such factors, sufficient cause had been made out or not4.

8.This Court while dealing with such issue, also observed in the case of Abdul Ghani5 that “the error in filing the appeal in the District Court is so patent, that it could have been avoided by exercising due care. The wrong advice of a counsel does not furnish a foundation for enlargement of time. A reference in this connection may be made to Abdul Ghani vs. Ghulam Sarwar PLD 1977 SC 102, which is on all fours on the case in hand.”

Khushi Muhammad through L.Rs and others vs. Mst. Fazal Bibi and others (PLD 2016 SC 872) Abdul Ghani vs. Mst. Mussarat Rehana (1985 CLC 2529)

9.As discussed supra, we are, therefore, of the considered view that the reasons assigned by the applicant for condonation of delay in no way can be termed as ‘sufficient cause’. Mere bald assertions are not sufficient to soften the implication of limitation in case of stale claims. The Hon’ble Supreme Court of Pakistan in the case of WAPDA6 has held that “after the prescribed period of limitation has elapsed, the door of justice is closed and no plea of injustice, hardship or ignorance can be of any avail unless the delay of each day is properly explained and accounted for.”

10.We, therefore, left no doubt in our mind that benefit of Section 14 of the Act cannot be extended in this case to exclude the time consumed in prosecuting an appeal before wrong forum having no jurisdiction, for the purpose of filing an appeal before a forum having jurisdiction. Therefore, gross negligence on the part of the appellant could not fall within the realm of “sufficient cause” of delay in filing appeal. Hence, the application {(C.M. No.2 of 2026) under Section 5 read with Section 14 of the Act} is dismissed accordingly and as a consequence whereof, this appeal also stands dismissed being not maintainable having been filed beyond prescribed period of time.

(Ch. Muhammad Iqbal) (Malik Muhammad Awais Khalid) Judge Judge

Approved for Reporting

JUDGE JUDGE

SN

WAPDA vs. Aurangzeb (1988 SCMR 1354)