1980 PLP 1446 (CLC)

(e) Limitation Act (IX of 1908)- = S. 5 - Discretion, soundness of--Test-Whether discretion exercised after appreciation and consideration of all facts material for purposes of enabling Court to exercise a judicial discretion and after application of right principle to facts-Discretion exercised under such conditions and a certain conclusion arrived at, such conclusion held an exercise of discretion judicially sound. (f) Limitation Act (IX' of 1908)-- - S. 5-Discretion, exercise of-Interference by High Court--High Court, held, interferes only if and when lower appellate Court appearing to have exercised its discretion in a judicially unsound manner and without proper legal materials to support its decision. This application for revision arises out of a suit for possession. The facts fall within a very narrow compass and may be briefly stated as fellows: On the 4th October, 1971, four male and two female plaintiffs petitioners, instituted a suit for possession of 36 kanals, 8 merles of land The suit was contested by some of the defendants. It is un-necessary to notice here the pleadings of the parties or the issues which were framed by the Civil Judge with reference to those pleadings as they are neither necessary for, nor relevant to, the decision of the present application for revision. The suit was decreed in part by the trial Court. The plaintiffs appealed to the District Judge. The judgment of the first Court was delivered on 20th December, 1972. The copies of the judgment and decree to be appealed prom were applied for on 30th December, 1972 i.e. when 21 days out of the period of 30 days prescribed for filing the appeal to the Court of District Judge were still to the credit of the plaintiffs. The copies where delivered on 29th January, 1973. Thus time spent in obtaining copies was 31 days. The. appeal had, therefore, to be filed before the expiry of the 61st day which fell on the 19th February, 1973, but as a matter of fact was instituted on 24th February, 1973. The appeal was thus obviously out of time. Alongwith the memo. of appeal, an application for condonation of delay under section 5, Limitation Act, and a certificate said to have been issued by the Medical-Officer, lncharge Primary Health Centre, Katlang, were submitted to the District Judge, apparently to explain away the delay which took place in the filing of the appeal. On consideration of the matter, the District Judge was satisfied that there was no sufficient cause for the exercise of discretion under section 5, Limitation Act, and. dismissed the appeal as barred by-limitation. The only point for consideration is whether the plaintiffs' appeal to the lower appellate Court was rightly dismissed being out of time. The reasons given by the plaintiffs-appellants in the application for condona tion of delay in. preferring the appeal beyond the period of limitation provided by the law were two. The first was that on 17th February, 1973, Habibullah one of the plaintiff-appellants, had fallen ill and was advised' rest for a week, and the second was that the plaintiffs were under the impression that their suit had been decreed in its entirety. None of these reasons prevailed with the District Judge who refused to exercise the discretion vested in him under section 5, Limitation Act, to extend the time for filing the appeal, and consequently dismissed the appeal holding it as barred by limitation. This decision is now being complained of before me. In this Court, one, and only one, point was agitated in the arguments. It was' said that the lower appellate Court erred in refusing to extend the time. under section 5, Limitation Act, because the certificate issued by the Medical Officer was conclusive on the point that Habibullah appellant had fallen ill and was advised not to move about for a week and it was for this reason that the appeal could not be filed in time. It is settled law that in order to have the benefit of section 5, Limita tion Act, it is the duty of the appellant to explain the delay that elapses beyond the period allowed by the law for filing the appeal. The existence of sufficient cause is a condition precedent for the exercise of the discretion under this section. The expression "sufficient cause" is not defined any where in the Limitation Act but it is settled beyond dispute that it must mean, a cause which is beyond the control of the party invoking the aid of the section. A cause for delay which, by due care and attention, the party could have avoided, cannot be a sufficient cause. The test, therefore, whether or not a cause is sufficient is to see whether it could have been avoided by the party by the exercise of due care and attention in other words, whether it is a bona fide cause. in as much as nothing shall be deemed to be done bona fide or in , good faith which is not done with due are and attention. Keeping this legal position in view. I may now proceed to find out whether there was sufficient cause for not preferring the appeal to the District Judge in time, and whether in refusing the extension of time for filing the appeal, the District Judge exercised a judicial discretion and after the application of the right principle to chose facts. As a general rule, in the matters of discretion, the High Court in second appeal or revision ought not, and ordinarily does not, interfere with the exercise of the discretion on the part of the subordinate Courts although that non-interference must necessarily be limited to cases where there is n sufficient material on record to justify the exercise of discretion in any particular way. The test is, has the discretion been exercised after appreciation and consideration of all the facts which were material for the purpose of enabling the Court to exercise a judicial discretion and after the application of the right principle to those facts. If the discretion in exercised under these conditions and a certain conclusion is arrived at, that conclusion would be an exercise of discretion judicially sound. In such a situation, the High Court would not interfere. In will not be out of place to point out here that the High Court would interfere only if and when it appears to it that the lower appellate Court has exercised its discre tion in a judicially unsound manner without proper legal materials to support its decision. In the instant case, Habibullah petitioner was, no doubt, found suffering from Gastro Integrities and was advised rest for a week by the Doctor but that fact alone could not suffice to constitute "sufficient cause" within the meanings of section 5, Limitation Act. Habibullah petitioner, as observed by the District Judge, and rightly, was not confined to bed and for that reason, his Queens could not have the effect of constituting sufficient cause for extension of time under section

5. It would also appear that Habibullah did not even follow the medical advice for one week's complete rest, and this by itself would indicate that he did not stand in need of any rest. He was advised one week's rest commencing from 17th February, 1973. This means that this period included 23rd of February, 1973. A reference to the Memo. of appeal would show that the appeal was drafted by the appellants' counsel on 23rd February. 1973 meaning thereby that Habibullah must have come td Mardan on the said date, or even earlier because the final drafting of a plaint or appeal by a lawyer normally takes a day or two. 1n this state of affairs, what appears to me is that there was sufficient material before the District Judge to exercise the discretion in the way he did and that the conclusion arrived at by him was an exercise of discretion judicially sound. This Court would not, therefore, interfere with the discretion so exercised by him. In the result, the application for revision fails and is accordingly dismissed. Since the respondents in this Court were proceeded against ex parte I would make no order as to costs in this application. M. Y. M. Application dismissed.