Form No.HC.

JD/C-121

ORDER SHEET
IN THE LAHORE HIGH COURT,
RAWALPINDI BENCH, RAWALPINDI
JUDICIAL DEPARTMENT
R.F.A. No. 51 of 2023

Ayaz Mehmood Versus Musadaq Riaz & 2 Others

Sr. No. Date of Order with Signature of Judge, and that of parties
of Order/ Order/ or counsel, where necessary
Proceeding Proceeding
13.02.2023 Mr. Muhammad Asghar Gondal, Advocate for the
applicant / appellant.

C.M.No.1-C of 2023

The subject appeal, filed under

section 96 of the Code of Civil Procedure, 1908 (the
‘Code’), is directed against the ex-parte judgment
and decree dated 21.12.2021 passed by learned Civil
Judge 1st Class, Rawalpindi, whereby, the suit for
specific performance and injunction, instituted by
the appellant, has been dismissed. The appeal is
accompanied by the instant application dated
08.02.2023 (the ‘application’) seeking to exclude
the period for pursuing the remedy before forum
without jurisdiction i.e. the learned District Court,
Rawalpindi.

2. Mr. Muhammad Asghar Gondal,

learned counsel for the applicant / appellant, during
the arguments, has reiterated the contents of the
application and relevant part of the same is as
follows: -

“2. That the applicant / appellant filed an

appeal before the Learned District Judge
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Rawalpindi as per the appellant is proper

forum of the Learned District Judge
Rawalpindi but lateron the Learned Addl.
District Judge asked the appellant that the
appeal was not maintainable due to the
proper jurisdiction of the District Judge
Rawalpindi, hence the case was return to
the appellant to file for the proper forum
before this honorable Court.

3. That the decision of case on merits is

always to be encouraged instead of non
suiting the litigants for technical reasons
including on limitation.”

3. There is no cavil to the settled

proposition of law that where the plaint is returned
under Order VII, Rule 10 of the Code for its
representation before the Court of competent
jurisdiction, for all intent and purposes, it is treated
as a fresh institution. The suit for specific
performance of agreement dated 18.04.2017
involving consideration of Rs.61,200,000/- was
dismissed by the learned Civil Court vide impugned
judgment and decree dated 21.12.2021. Instead of
filing appeal before this Court, an appeal was
instituted before the learned District Court,
Rawalpindi which remained pending for about one
year and finally the appeal was returned under Order
VII, Rule 10 of the Code vide order dated
08.02.2023 passed by the learned District Court,
Rawalpindi.

4. The application, for excluding the

period of pursing the remedy before the learned
Court lacking jurisdiction, is instituted under section
5 of the Limitation Act, 1908 (the ‘Act’) which
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requires a litigant to satisfy the Court that he has

sufficient cause for not preferring the appeal or
making the application within the stipulated time
period. In order to establish ‘sufficient cause’, there
is no mathematical formula or hard and fast rule that
can be followed, however, it is equally an
established principle that although section 14 of the
Act has no direct application to the appeals but the
principles enumerated therein can be taken into the
consideration by the Court while ascertaining the
availability of ‘sufficient cause’ for condonation of
delay. Reference can be made to the case titled
“Khushi Muhammad through L.Rs. and Others
Versus Mst. Fazal Bibi and Others” (PLD 2016
Supreme Court 872). It will be beneficial to
reproduce the relevant extract from the said
judgment of the Honourable Supreme Court of
Pakistan, which reads as follows:-

“37. The purpose of the laws of

limitation is to establish certainty in the
affairs of men, to bring repose and to
bring an end to litigation after a certain
time period has expired from accrual of an
actionable right. Both Sections 5 and 14 of
the Act are exceptions to the laws of
limitation. A person claiming under the
aforesaid exceptions must establish that he
or she is not disentitled to the
discretionary relief which may be awarded
by the Court. Therefore a claimant seeking
condonation of delay must explain the
delay of each and every day to the
satisfaction of the Court, establish that the
delay was caused by reasons beyond the
person’s (or counsel’s) control and that he
was not indolent, negligent or careless in
initiating and pursuing the actionable
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right which had accrued in his favour. The

“borrowed” applicability of the provisions
of Section 14, where its principles are
taken into account to set the standard for
sufficient cause, proceeds on the
conditions precedent of due diligence and
good faith which must be present before
the court grants condonation of delay on
the basis of time spent before wrong fora;
even if such principles are not taken into
consideration the court is not supposed to
exercise its discretion in any arbitrary,
whimsical and fanciful manner but has to
see if a case was made out by the appellant
which prevented and precluded him from
approaching the right forum of appeal.
The overwhelming case law cited in the
earlier part of this opinion concludes that
the institution and the pendency of an
appeal before a wrong forum on counsel’s
wrong advice i.e. one having no
jurisdiction does not constitute a sufficient
cause for condonation of delay in terms of
Section 5 of the Act, but there is
considerable case law that supports the
contrary view. In my opinion, the gulf
betwixt the divergent views must be
bridged by employing proportionality and
balancing. It can neither be held that
condonation is absolutely ruled out in such
a situation nor that the appellant shall be
entitled to condonation as a matter of
course and right, rather the Court must
look into the facts and circumstances of
each as to whether sufficient cause has
been made out. Because any exercise of
discretionary jurisdiction in favour of a
person seeking relaxation of the
application of the laws of limitation as of
right etc. would be prejudicial to the
interests of the respondent. A valuable
vested right accrues in favour of the
respondent the moment a relevant period
of limitation expires in that the respondent
is then free from the hanging sword of an
actionable claim. In order to wrest away
this valuable right from a respondent the
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person seeking condonation of delay must

establish sufficient cause. However,
sufficient cause is a term wide enough to
encompass within it the principles
enshrined in Section 14 of the Act or
indeed independent thereto. Time spent
pursuing an appeal before a wrong forum,
in good faith and with due diligence ought
in our view to constitute sufficient cause
for condonation of delay. But the act of
approaching a wrong forum must be
accounted for: It should be established
that due to some honest, bona fide and
genuine ambiguity in the law or in fact, a
party or his counsel was led astray in
terms of approaching a wrong forum.
Mere incompetence of the counsel,
inadvertence, negligence or ignorance of
law attributable to him and / or
overlooking of the record by the counsel
cannot 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.
Mere wrong advice of counsel is not an
adequate ground per se to constitute
sufficient cause because if this rule is
accepted, the centuries tested rule that
ignorance of law is no excuse would stand
violated. Besides, the above factors which
caused ambiguity and misled the appellant
(or his counsel as the case may be) have to
be stated with clarity and precision in the
application for condonation of delay and
proved on the record.”
(Underlining is added)

5. Here it will be appropriate to reproduce

section 14 of the Act, which reads as follows: -

“Exclusion of time of
proceeding bona fide in Court without
jurisdiction.
(1) In computing the period of
limitation prescribed for any suit the time
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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 application 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.”
(Emphasis Supplied)

6. Reading of above clearly reflects

that it is incumbent upon the litigant, seeking
exclusion of time period for pursuing remedy in
forum without jurisdiction, to plead the facts to
justify the grant of relief and by reasonably
demonstrating due diligence and good faith in
pursuing the matter before the learned Court having
no jurisdiction to adjudicate.

7. The initial burden, to show the

above elements for seeking to exclude the period
consumed in prosecuting case before learned forum
without jurisdiction, is on the applicant pleading
such relief. Reliance in this regard can be placed on
the law settled by the Honourable Supreme Court as
well as this Court in cases titled “Khushi
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RFA No. 51 of 2023 (Order)

Muhammad through L.Rs. and Others” (supra),

“Monazah Parveen Versus Bashir Ahmad and 6
Others” (2003 SCMR 1300) and “Abdul Ghani
Versus Mst. Mussarat Rehana” (1985 CLC 2529).

8. Reverting to the facts of the case,

the applicant / appellant miserably failed to plead
the elements of section 14 of the Act. No plea as to
the bonafide on the part of the applicant / appellant
or any due diligence on his part has been taken in
the application or during the arguments. The learned
counsel for the applicant / appellant besides
reiterating the contents of the application, which are
already reproduced above, failed to give any
justification or to argue as to due diligence adopted
by the appellant for about one year of pursuing the
remedy in wrong forum.

9. The circumstances of the case did

not involve or present any difficulty in ascertaining
correct forum having jurisdiction to hear the appeal.
The error of filing the appeal before the learned
District Court, Rawalpindi is fairly obvious and it
could have been avoided by exercising even little
diligence or adopting some care. A learned Division
Bench of this Court, somewhat in similar
circumstances of the present, in “Abdul Ghani” case
(supra) has observed that in such circumstances
even the wrong advice of a counsel cannot be
foundation for enlargement of time consumed in
pursuing remedy before wrong forum. The relevant
part of the said judgment is as under: -
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“We are of the view, 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 v. Ghulam Sarwar PLD
1977 SC 102, which is on all fours on the
case in hand.”
(Emphasis supplied)

10. The conduct of the applicant /

appellant depicts carelessness, lack of required
diligence and callous approach on the basis of which
condonation of delay under section 5 of the Act is
sought, without even discharging the initial burden
or even pleading necessary ingredients. Further
reference can be made to the cases titled “Sarmukh
Singh Vs Channan Singh and Ors (AIR 1960 PH
512) and “Munshi v. Punna Ram” (AIR 1974
Punjab and Haryana 229).

11. As far as the contention of learned

counsel for the applicant / appellant that the cases
should be decided on the basis of merits rather than
technicalities is concerned, it is suffice to observe
that availing the remedy within the period provided
by law is not merely a technicality. Section 5 or
section 14 of the Act are not intended to add
premium to the carelessness or to validate lack of
vigilance and required caution by a litigant.

12. In the wake of above discussion, we

are of the considered opinion that the application,
for enlargement of time by excluding the time
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period of about one year for pursuing remedy before

wrong forum, has no substance, therefore, the same
is dismissed.
Main Appeal
13. For the foregoing reason the present
appeal is dismissed in limine, being barred by time.
No order as to costs.

(MIRZA VIQAS RAUF) (SULTAN TANVIR AHMAD)

JUDGE JUDGE

Approved for reporting

J.A.Hashmi/* JUDGE JUDGE