Haji Zabta Khan vs Dr.Ahmad Ali Siraj

2014 Y L R 1015

[Peshawar]

Before Muhammad Daud Khan, J

Haji ZABTA KHAN---Appellant

Versus

Dr. AHMAD ALI SIRAJ and others---Respondents

R.F.A. No.111-D of 2012, decided on 14th October, 2013.

Limitation Act (IX of 1908)---

----Ss.14 & 5---West Pakistan Civil Courts Ordinance (II of 1962), S.18---Appeal---Filing in wrong forum---Effect---Exclusion of time of proceedings in court without jurisdiction---Scope--- Time spent in pursuing proceedings before appellate forum could not be excluded as suit did not include appeal or application---Benefit of S.14 of Limitation Act, 1908 could not be extended to exclude time consumed in prosecuting an appeal before wrong forum for the purpose of filing the same before proper forum---Provisions of S. 5 of Limitation Act, 1908 could only be invoked by showing sufficient cause for filing an appeal which was barred by time---Expression "due diligence" and "good faith" did not occur in S.5 of Limitation Act, 1908 which enjoined only "sufficient cause"---Expressions given in both the sections could not be equated with each other-- -Power to condone delay and grant extension in time under S.5 of Limitation Act, 1908 was discretionary---Condition prescribed in S.5 of Limitation Act, 1908 for its applicability was "sufficient cause"---Capability of counsel and conduct of party during proceedings was the material to determine "sufficient cause"---Present suit was for recovery of Rs.12,00,000 and appeal would lie before the High Court---If the appellant proved that he filed appeal in a wrong forum despite due care and attention, presentation of appeal in wrong forum, in circumstances, was on account of situation beyond his control---Presentation of appeal in a District court was an act of gross negligence---Appeal was preferred before the District Judge on 16-5-2012 and same was returned on 2-10-2012 but same had been preferred before the High Court after delay of seven days---Said seven days were neither mentioned nor explained by the plaintiff---Plaintiff was required to explain each day to condone delay in filing appeal---Plaintiff had failed to prove that he had been prosecuting his remedy before wrong forum in good faith and due diligence---Plaintiff had failed to explain sufficient cause for condonation of delay in filing time barred appeal before the High Court---Appeal was dismissed in circumstances.

1999 SCMR 1892 and 2012 SCMR 377 rel.

Rustam Khan Kundi for Appellant.

Muhammad Waheed Anjum for Respondents.

Date of hearing: 14th October, 2013.

JUDGMENT

MUHAMMAD DAUD KHAN, J.---This appeal is directed against the judgment and decree dated 10-4-2012 passed by learned Civil Judge-VI, D.I.Khan vide which the suit of the appellant/plaintiff was dismissed being not maintainable.

2.The relevant facts are that Haji Zabta Khan appellant instituted a suit for recovery of Rs.12,00,000 against Dr. Ahmad Ali Siraj, respondent/defendant No.1, as tax leviable on respondent's commercial property known as Tariq Shopping Centre, Paroa Road, D.I.Khan, as a transferee through exchange vide Wasiqa No.2078 dated 29-10-2011. The learned Civil Judge dismissed the suit of the appellant/plaintiff vide impugned judgment dated 10-4-2012 by holding the same as not maintainable, as the proper remedy was provided in section 18 of the Local Government Ordinance, 2002. Being aggrieved, the appellant preferred an appeal before the learned District Judge, D.I.Khan through his counsel Mr. Rustam Khan Kundi Advocate on 16- 5-2012 which was entrusted to learned Additional District Judge-II, D.I. Khan. Meanwhile court- fee of Rs.15,000 was affixed on 25-5-2012 in view of valuation of appeal. Later on, the application for withdrawal of appeal was submitted by the counsel for the appellant as the learned Additional District Judge had no pecuniary jurisdiction to entertain the same and the appeal was required to be preferred before the proper forum i.e. High Court. Resultantly, the learned Additional District Judge returned the memorandum of appeal along with stamp papers of court-fee vide order dated 2-10-2012 and the instant appeal was filed before this Court on 9-10-2012, along with an application under section 14 read with section 5 of the Limitation Act, 1908, for condonation of delay as the appeal is barred by time.

3.Mr. Rustam Khan Kundi, learned counsel for the appellant contended that though the appellant was obliged to prefer appeal against the impugned judgment before this Court, but inadvertently the same was preferred before the District Court, however, filing of appeal before wrong forum was neither intentional nor due to negligence but because of misunderstanding of suit valuation mentioned in para-8 of the plaint. The second contention of the learned counsel is that it was the act of District Court which wrongly assumed jurisdiction basis of the title "prayer Bay" of the original plaint as well as memorandum of appeal, therefore, the appellant legally cannot be held responsible for the delay. He also contended that since wrong forum chosen by the appellant was not objected by the opposite party or District Court, hence, the said ground mentioned in application is to be considered as legitimate ground for condonation of delay.

4.Conversely, Mohammad Wahid Anjum, learned counsel for respondent No.1 contended that the original suit is for recovery of Rs.12,00,000 on the basis of valuation of suit as well as

appeal, meaning thereby that the appellant knew the proper forum to file the appeal. He contended that the act of the appellant is not bona fide and does not come within the purview of due care and diligence.

5.Lengthy arguments of learned counsel for the parties heard and with their valuable assistance record minutely perused.

6.In order to appreciate the arguments advanced by the learned counsel for the parties, I deem it advantageous to reproduced below sections 5 and 14 of the Limitation Act, 1908:-- "5. Extension of period in certain cases:---Any appeal or application for a revision, or a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period."

"14. Exclusion of time of proceedings 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.

From perusal of section 14 of the Limitation Act, it transpires that time spent in pursuing the proceedings before the appellate forum cannot be excluded on the clog provided in section 2(10) of the Limitation Act, as the suit does not include the appeal or the application. It leaves no doubt in my mind that benefit of section 14 of the Act cannot be extended to exclude the time consumed in prosecuting an appeal before wrong forum, having no jurisdiction for the purpose of filing of an appeal before the proper forum, having jurisdiction.

7.For the purpose of filing an appeal, in case appeal is barred by time, the provisions of section 5 of the Limitation Act can only be invoked and that too, by showing sufficient cause. The expressions "due diligence" and "good faith" mentioned in section 14 do not occur in section 5 of the Limitation Act which enjoins only "sufficient cause". The expression given in both the sections cannot be equated with each other, therefore, the power to condone the delay and grant extension in time under section 5 of the Act ibid is discretionary. The condition prescribed in section 5 of the Act for its applicability is "sufficient cause", but what is sufficient cause, is not capable of connotation and differs from case to case. To judge the sufficient cause, the matter involves capability of counsel of a party, the conduct of a party during proceedings are material to determine it.

8.In the instant recovery suit of Rs.12,00,000 manifest under section 18 of the West Pakistan Civil Courts Ordinance, 1962, the appeal lies before High Court. Now if the appellant proves that he filed his appeal in a wrong forum despite due care and attention, it means that the presentation of appeal in the wrong forum was on account of situation beyond his control but in the instant case, the provisions of section 18 of the West Pakistan Civil Courts Ordinance are beyond any doubt and there is no complication whatsoever about the facts relating to the question of proper forum for filing appeal. It is clear that presentation of appeal in a District Court was an act of gross negligence.

9.The impugned order was passed on 10-4-2012 and appeal was preferred before the District Judge on 16-5-2012, the same was returned with original memorandum of appeal and stamp papers of court fee on 2-10-2012 whereas the instant appeal before this Court was preferred on 9-10-2012, after delay of seven days. These crucial seven days were neither mentioned nor explained by the appellant. It is well-established law, while determining the question, whether there is sufficient cause under section 5 of the Limitation Act to condone the delay in filing appeal/revision/ application/review etc., the condonation of delay under section 5 of the Act, the appellant/petitioner is required to explain each day. Reliance in this respect is placed on 1999 SCMR 1892 (2)and 2012 SCMR 377.

10.In view of the above situation, the appellant has failed to satisfy this Court that he had been prosecuting his remedy before the wrong forum in good faith and due diligence. He also miserably failed to explain sufficient cause to entitled him for condonation of delay in filing time barred appeal before this Court.

11.Consequently, the appeal is hereby dismissed on the point of limitation, leaving the parties to bear their own costs.

AG/663/P Appeal dismissed.