Appeals filed at Wrong Forum, Limitation and Condonation of Delay

Appeals filed at Wrong Forum, Limitation and Condonation of Delay Actus Curiae Neminem Gravabit - Act of Court Shall Prejudice No Man Case Laws Civil Law Condonation of Delay Forum of Appeal Knowledge - Civil Law Limitation Litigation & Arbitration Solutions - Civil Law Supreme Court Mr. Justice Mian Saqib Nisar in his order has decided the issue regarding appeals filed at wrong forum, limitation and condonation of delay in Civil Appeals No. 2564 of 2001 etc.

1. Through these matters we have been called upon to answer the question as to whether the time spent in pursuing an appeal before a wrong forum can be condoned and/or excluded from the prescribed period of limitation. In the above context certain ancillary and incidental propositions also require resolution:

(i) Whether Section 14 of the Act applies to appeals and if not, whether the principles enshrined therein (Section 14) can be made applicable while considering if a sufficient cause has been made out under Section 5 of the Act;

(ii) Whether the institution and the pendency of the appeal before a wrong forum i.e. one having no jurisdiction on account of wrong advice of the counsel constitutes a sufficient cause for condonation of delay in terms of Section 5 of the Limitation Act, 1908 (the Act);

(iii) Where an appeal which has been entertained by the staff of the court or the court itself which has no pecuniary jurisdiction and is ultimately returned to the appellant or is dismissed, whether this protects the appellant from the bar of limitation and/or constitutes a sufficient cause for the condonation of delay on the principle of actus curiae neminem gravabit; and

(iv) Whether the discretion exercised by the court(s) below in condoning the delay cannot be interfered with by the higher court(s) unless the discretion is shown to have been exercised arbitrarily.

It may be pertinent to mention here that this is not the first time that the superior Courts have been asked to provide answers to these questions; on the contrary it has been a recurring issue coming before the courts time and again and unhappily there happen to be drastically divergent/conflicting views on the subject. Thus we wish to resolve the conflict so as to have a binding effect on all those concerned in terms of Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution).

As the aforesaid propositions are common to all these matters we intend to resolve the same before examining and deciding the individual cases on their own merits.

2. Extensive arguments have been made by the learned counsel for the parties for and against the propositions which are summarized hereinbelow; their pleas/counter-pleas and the law cited in support thereof (note: including case law researched by the Court staff) are reflected in the reasons of this opinion. The summations of the learned counsels who have objected to the condonation of delay/exclusion of time are briefly stated below:

(i) That Section 5 of the Act should be strictly construed and applied and that sufficient cause stipulated therein should not be tested on the conditions of Section 14 of the Act as it only applies to suits and not appeals; however some of the counsel have submitted that the limitations of the latter section should be referred to assess the existence of sufficient cause;

(ii) An appellant who approaches the wrong forum (one lacking jurisdiction) should not be given the premium of his own negligence; especially in cases where the institution of an appeal before the wrong forum is tainted with mala fide intention;

(iii) When a lis is initiated beyond the prescribed period of limitation a vested right is created in favour of the opposite side which cannot be obliterated by giving a premium to a delinquent litigant;

(iv) That the rule actus curiae neminem gravabit is a rule of administration of justice; it should not be used to favour a delinquent litigant to the prejudice of the opposite side in whose favour a vested right has been created; besides, where an appellant is unmistakably found to be negligent or lacking bona fide, to give him the benefit of the rule of actus curiae neminem gravabit would be a serious abuse of the rule which is meant for the administration of justice.

3. On the other hand, the summations of the learned counsels supporting the proposition that the appeal filed by the litigant before a wrong forum on the mistaken/wrong advice of the counsel and the subsequent entertainment of such appeal by the office of the court or the court itself justifies condonation of delay are:

(i) That an appeal is an extension of a suit, and the entire case reopens before the appellate court, therefore, Section 14 of the Act can be resorted to for purposes of excluding the time spent before the forum having no jurisdiction, however, the conditions of the section have to be satisfied. Mr. Malik Muhammad Qayyum, learned ASC when specifically questioned in this regard has candidly conceded that Section 14 would not be attracted, rather, the conditions stipulated therein if satisfied should be construed to be a sufficient cause in terms of Section 5 (this was also the submission of Mr. Gulzarin Kiyani, learned counsel appearing for the opposite side);

(ii) That if the reason for approaching the wrong forum is the wrong advice of a legal expert whom a litigating party approaches with due diligence and in good faith, therefore, no prejudice should be caused to such litigant and delay resulting due to mistaken advice should be condoned on this account simpliciter;

(iii) It is the duty of the appellate court (including its staff) to refuse to entertain or admit an appeal when it does not fall within its pecuniary jurisdiction, but in the event of failure to do so the rule of actus curiae neminem gravabit would be duly attracted;

(iv) Where a court whilst exercising its discretion has condoned the delay as per Section 5 of the Act, the higher court(s) shall not interfere in such discretionary exercise of power [note: this plea was raised by Mr. Malik Qayyum, learned ASC who has placed reliance on the following cases in this regard:- Muhammad Bashir and another Vs. Province of Punjab through Collector of District Gujrat and others (2003 SCMR 83), P.M. Amer Vs. Qabool Muhammad Shah and others (1999 SCMR 1049), Mrs. Zubaida Begum Vs. Mrs. S.T. Naqvi (1986 SCMR 261), Lahore Development Authority Vs. Mst. Sharifan Bibi and another (PLD 2010 SC 705) and National Bank of Pakistan and others Vs. Shamoon Khan and others (2010 SCMR 1173)].

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