P L D 2014 Peshawar 45

Before Ikramullah Khan, J

Dr. RIAZ KHAN---Appellant

Versus

ABDUR RASHEED and 9 others---Respondents

Regular First Appeal No.249 of 2013, decided on 3rd October, 2013.

Limitation Act (IX of 1908) ---

----Ss. 14 & 5---Suit for compensation---Exclusion of time of proceedings in court without

jurisdiction---Scope---"Due delegence" and "good faith"---Period provided for appeal was 90
days---Present appeal had been filed beyond the period of limitation after more than six months
and twenty day which was prima facie time barred---Defendant had not disclosed in his
application for condonation of delay nor relied on any ground that the delay caused in
proceedings before wrong forum was with due diligence and with good faith---Expression "due
diligence" and "good faith" did not figure in S.5 of Limitation Act, 1908---Condition prescribed
in S.5 of the Act for its applicability was "sufficient cause"---Negligence of defendant was
apparent and law did not favour those who went in slumber---Vested rights had accrued to the
adverse party in circumstances and which could not be taken away on simple pretext---
Defendant had failed to establish that time spent in proceedings before wrong forum was
result of misconception of law or facts but he proceeded thereunder due diligence and with
good faith---Appeal was dismissed in limine.

Nazakat Ali v. WAPDA through Manager and others 2004 SCMR 145 and Khan
Shahzada v. Allied Bank Ltd. 2013 PLJ 222(sic) rel.

Mian Shujaat Shah for Appellant.

Nemo for Respondents.

Date of hearing: 3rd October, 2013.

JUDGMENT

IKRAMULLAH KHAN, J.---Through the instant appeal preferred under provisions of

section 96 of C.P.C. 1908, the appellant has challenged the impugned judgment and decree
dated 21-7-2012 passed by the learned Civil Judge-VI, Swabi.

2. The briefly stated facts are that respondents Nos. 1 to 6, instituted a civil suit for
compensation against the appellant and rest of the respondents wherein, they alleged that one
Abdur Rauf son of respondents l and 2, broke his hand in its house and was shifted to the
private hospital owned and managed by rest of the respondents, whereof appellant carried an
operation on the hand of the patient, but due to mis-care, lack of professional experience,
mismanagement and lack of all other required equipments in this regard, the patient succumbed
to its minor injury due to the negligence and lack of professional responsibilities of the
appellant and rest of the respondents.

3. The learned trial Court, on the conclusion of trial award a decree in favour of
respondents Nos. 1 to 6 against the appellant and rest of the respondents in sum of Rs.5,00,000,
being compensation amount to be paid to the legal heirs of the deceased Abdul Rauf
aged 9/10 years.

4. The appellant being aggrieved and dissatisfied of the impugned judgment dated 21-7-
2012, preferred an appeal before the District Judge, Swabi, who entrusted the said appeal to
Additional District Judge-II, Swabi for adjudication.

5. The learned Additional District Judge-II, returned the memorandum of appeal in original
to the appellant as the learned Court was not competent to hear an appeal above its pecuniary
jurisdiction vide its judgment dated 30-1-2013.

6. The appellant, thereupon has preferred the instant appeal against the impugned judgment
dated 21-7-2012, along with an application for condonation of delay on the ground well
mentioned therein the body of the application.

7. Admittedly, this appeal has been filed against the impugned judgment thereafter a delay
of more than 6 months and 20-days, which prima facie seems to be hopelessly time barred and
has been filed much after the prescribed period of limitation provided therefor filling such an
appeal, within 90-days.

8. As, the appellant has taken the plea, that as the delay was not intentional but was due to
proceeding in the improper forum, the delay may be condoned thereunder the provisions of
section 14 of the Limitation Act, 1908.
9. To resolve, this proposition of law, that whether, the appellant would be extended the
concession provided thereunder the provisions of section 14 of the Limitation Act, 1908, for
condonation of the delay in filling the instant appeal, beyond the prescribed period of limitation,
fixed for such an appeal before this Court against any order passed by a Civil Judge. It would be
not out of contest to reproduce herein below section 14 as,-

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 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.

Explanation. I.--In excluding the time during which a former suit or application was
pending, the day on which that suit or application was instituted or made, and the day on which
the proceeding therein ended, shall both be counted.

Explanation. II.---For the purposes of this section, a plaintiff or an application resisting

an appeal shall be deemed to be prosecuting a proceeding.

Explanation. III.---For the purposes of this section mis-joinder of parties or of cause of

action shall be deemed to be a cause of a like nature with defect of jurisdiction.

10. The period provided therefor such an appeal, is 90-days, and the instant appeal, has been
filed beyond the prescribed period of limitation provided thereunder the provisions of the
Limitation Act, 1908.

11. The Court shall not extend a helping hand, to an indolent, as the law favours the vigilant.

12. The apex Court in judgment title as "Nazakat Ali v. WAPDA through Manager and
others" (2004 SCMR 145) has held that:--

"Exclusion of time spent in seeking before wrong forum, party would not be entitled to
condonation of delay, unless he provides that he had been seeking remedy before wrong forum
in good faith."

13. The appellant in its application, annexed hereto with the instant appeal, has not disclosed
nor relied on any ground that the delay caused in proceeding before the wrong Court was with
due diligence and with good faith.

14. The expression "due diligence" and "good faith" appearing in section 14 of the
Limitation Act, 1908 do not figure any where in section 5 of the Limitation Act, 1908,
however, the condition prescribed in the latter section for its applicability is sufficient cause but
what is sufficient cause is not capable of connotation, with exactitude and word differ from case
to case. The facts available on the face of record reveals the conduct of the appellant smack of
negligence, and the law does not favour those who goes in slumber.

15. It should not be a matter of routine for the Court that each and every such plea, in regard
to condonation of delay be accepted, for the simple reason, that adverse party in such a state of
affairs has accrued vested right and that should not be taken away, on the simple pretext that the
proceeding in the wrong forum be condoned thereunder section 14 of the Limitation Act, 1908,
without vehemently and reasonably, bring on record its good faith and due diligence in filing
appeal in a wrong forum with justification and explanation of the cause, which force the
appellant or its counsel, in the filing of appeal before a wrong forum.

16. As, the appellant, failed to convince this Court, that the time spent in proceeding before
the wrong Court, was a result of misconception of law or facts but was proceeded there under
due diligence and with good faith. Reference may be given to the judgment of this Court
delivered thereof in case title "Khan Shahzada v. Allied Bank Ltd. (PLJ 2013 Peshawar 222).
Therefore, the instant appeal, being hopeless time barred, accordingly dismissed in LIMINE.

AG/641/P Appeal dismissed.