2017 PLP 71 (CLCN)

CH. MUHAMMAD IBRAHIM ZIA, J.

This appeal by leave of the Court is addressed against the judgment and decree of the High Court dated 16.2.2012, whereby the appeal filed by the appellant has been dismissed.

2. Necessary facts giving rise to this appeal are that two counter suits titled Mohammad Shafi v. Mohammad Hayat and others (67/civil, dated 18.7.2001) and Mohammad Reaz v. Abdul Hameed and others, (107/Civil dated 27.7.2001) were filed in the Court of Civil Judge, Mirpur. The learned Civil Judge, Mirpur through a consolidated judgment and decree dated 26.10.2007 disposed off both the suits. The suit filed by Mohammad Shafi was decreed whereas the counter suit filed by Mohammad Reaz was dismissed. The appellant was impleaded in the line of defendants in suit the No. 67/Civil, and in suit No. 107/Civil, she was impleaded as pro forma-respondent. On 28.5.2008, she preferred an appeal before the learned District Judge, Mirpur against the judgment and decree of Civil Judge, Mirpur. The appeal was made over to the Additional District Judge, Mirpur for disposal under law. Mohammad Shafi respondent No.1 also filed an application for dismissal of appeal. According to averments made in the application, the appeal was filed by the appellant after expiry of the period of limitation. The learned Additional District Judge Mirpur, vide order dated 7.10.2009, dismissed the appeal being filed beyond the period of limitation.

3. Ch. Muhammad Ashraf Ayyaz Advocate, the learned counsel for the appellant, after brief narration of facts submitted that the appellant being illiterate women was personally unable to pursue her case whereas counsel and attorney appointed failed to inform her about the decision of the Civil Court. It was brought to her knowledge when execution proceedings were taken by the respondents thereupon she, without any delay, obtained copies and filed appeal before the learned District Judge, Mirpur. He further submitted that in the light of peculiar facts of this case, for the ends of justice, while condoning the delay in filing appeal before the District Judge, and setting aside the impugned judgment, the appeal be remanded for decision on merits. He has placed reliance upon the cases reported as Muhammad Aziz Khan and 2 others v. Muhammad Shafi and another [1998 CLC 711], Sarwar Khan v. Mir Ali and 10 others, [1980 CLC 110], in support of his contentions.

4. Conversely, Muhammad Ashraf Chaudhry, Advocate, the learned counsel for respondents, strongly defended the impugned judgment on the ground that the appeal is hopelessly time barred and the appellant by her own negligence does not deserve for any condonation of delay. He further submitted that the knowledge of the counsel or attorney is also knowledge of party. It is celebrated principle of law that when a judgment is announced in presence of counsel for the parties, there is no sufficient cause for condonation of delay. The first and second appeals have been rightly dismissed by the Courts below, thus, the impugned judgment does not call for any interference. The learned counsel for respondents also raised another argument that in the trial Court, there were two consolidated suits and two decrees were passed but the appellant has challenged only one decree, thus, even on this score, the appeal was not competent.

5. We have heard' the learned counsel for the parties and, also minutely examined the record. According to admitted facts, both the parties were facing litigation before the learned Civil Judge, Mirpur and their suits were finally disposed off vide judgment dated 26.10.2007. The examination of the interim order passed by the learned Civil Judge dated 26.10.2007 reveals that the impugned judgment was announced in presence of counsel for the parties whereas the appeal has been filed before the first appellate Court on 28.5.2008 approximately after a period of 7 month. In para 6 of the memo of appeal, the appellant asserted that her attorney had not informed her regarding the decision. She got knowledge of the impugned judgment on 14.5.2008 during the proceedings of execution of decree. Certified copies appended with the appeal appears to have been obtained in the name of one Manzoor Begum, proforma-respondent, who applied for the same on 19.5.2008 which were supplied on 20.5.2008. Even after obtaining the certified copies, the appeal was not filed for a further time of almost one week. The appellant has failed to mention any plausible justification in memo of appeal filed before this Court and the High Court regarding condonation of delay. She has only relied upon the explanation given in the memo of appeal filed before the Additional District Judge.

6. It also appears that a contradictory stand has been taken before this Court as the learned counsel for the appellant has argued that the appellant's counsel failed to inform her regarding announcement of the judgment of the trial Court. Whereas in the memo of appeal, the appellant has taken the stand that the attorney of the appellant has not apprised her. Be that as it may, however, according to celebrated principle of law, knowledge of counsel is knowledge of the party. Therefore, such lame excuse cannot be accepted for condonation of delay spreading over months' time. The conduct of the appellant appears to be indolent. She has not appended certified copies obtained in her own name, rather the copies have been obtained in the name of one Manzoor Begum. Even if for the sake of argument, the copies obtained in the name of Manzoor Begum are treated admissible, despite this, after obtaining the copies on 20th May, 2008 there is no explanation for further delay of one week's time. This Court, while dealing with the question of limitation in the case titled Defence Department of Pakistan v. Sardar Muhammad Khan and another [2004 CLC 1925] has observed that no premium can be allowed to a negligent party for indolent and lethargic attitude. "

16. In the present case, the appeal has been filed after five months. Even the copies of documents were obtained by the appellant beyond the period of expiry of sixty days. No premium can be allowed to a negligent party for his indolent and lethargic attitude. We have noticed that no explanation whatsoever has been tendered by the appellant." Same like in the case titled Fakhar Mahmood v. Mst. Fahmida Begum and 10 others, [2004 YLR 3121] while embarking upon the question of limitation it has been held that it is duty of the party seeking condonation of delay, to explain delay of each and every day. This is a consistent view of this Court. One may refer to the case reported as Mahboob and another v. Muzaffar Din, [1992 SCR 338] wherein even one day's delay was not condoned. In the case reported as Rafique Shah v. Muhammad Aslam and others, [1993 SCR 344], it was held that it is duty of the party who approaches the Court beyond prescribed period of limitation to state the grounds for exemption in the plaint or memo of appeal as the case may be. Even otherwise, if the explanation for the sake of arguments is treated as sufficient, despite this the appellant has failed to explain that after gaining knowledge on 14.5.2008, why she failed to file appeal till 28.5.2008 for further almost two weeks' time. According to consistent practice of this Court, it is duty of the party who prays for condonation to explain the delay of each and every day. Whereas the appellant has failed to furnish any reasonable explanation in this regard.

7. Both the learned counsel for the parties also attempted to argue some other points. In our opinion, the Courts below have decided the appeals purely on the question of limitation. It is very basic legal proposition, hence, without crossing this bar, there is no justification to enter into discussion on merits of the case. Our this view finds support from the case reported as Muhammad Aslam and another v. Muhammad Rashid [2006 SCR 11], wherein the Court's observation reads as "it may be observed that we have no quarrel with the proposition that without crossing the bar of limitation the Courts are not justified to enter into merits of the case and the delay in limitation can be condoned only if sufficient cause has been shown in application seeking condonattion of delay." In view of this principle of law there is hardly any necessity to discuss the other merits of the case.

8. Even from another angle, the first appeal was not maintainable, as hereinabove pointed out that certified copies appended with the memo of appeal before the Additional District Judge have been issued in the name of one Manzoor Begum, proforma -respondent. It has been settled now that requirement of appending certified copies with the memo of appeal includes the copies obtained in the name of the appellant or through his legally appointed counsel or agent. Even on this score, the appeal was liable to be dismissed. In a recent judgment of this Court in the case titled Superintending Engineer WAPDA and another v. Mohammad Anwar and others, (Civil Appeal No. 52/2010) decided on 16.11.2010) while deliberating on this point in detail, it has been finally observed as follows:- "6... According to the codal provisions, it is mandatory that certified copy of the decree and judgment must be accompanied with the memo of appeal. The argument of the learned counsel for the appellant that under the provisions of Order XLI, Rule 1, C.P.C., it is not necessary that the copies must be issued in the name of the appellant appears to be untenable because when question for computation of limitation arises that can only be resolved by extending the benefit of section 12 of the Limitation Act to the person who has applied for certified copies and naturally this benefit cannot be claimed by the parties on the strength of the certified copies obtained by any other person or the person alien to the proceedings. Our this view is fortified from the principle of law enunciated by the apex Court of Pakistan in a case reported as Muhammad Sardar and 4 others v. Haji Muhammad Hussain and 4 others, [1998 SCMR 1939] wherein it has been held as under: '....The crucial question arising for determination is as to whether a party can use copies obtained by another person with a view to bringing his petition seeking leave to appeal within time. The answer to this question is definitely in the negative inasmuch as it is the right of the other person which accrues to him for filing a petition in time and the said right cannot be usurped by a person who has not obtained certified copies and is supposed to invoke jurisdiction of this Court in time to avail the remedy'." This is a consistent view of this Court which las reflected from the judgments reported as AJ&K Government and 2 others v. Abdul Salam Butt and 3 others, [2003 SCR 287], State v. Naseer Ahmed and another [PLD 2004 SC(AJ&K) 40] and AJ&K Govt. and 2 others v. Ch. Khadim Hussain Ex. SDO, [2005 CLC 1025], Thus, on this score the appeal filed before the District Judge, was not maintainable.

9. We have surveyed the case law referred by the learned counsel for the appellant. The first Judgment in the case reported as Muhammad Aziz Khan and 2 others v. Muhammad Shafi and another, [1992 CLC 711], speaks that the question of limitation cannot be decided without framing of issues. We have no quarrel with the principle of law laid down in this case because according to facts of this case, there was a controversy regarding the point of limitation whereas in the instant case, there is no such controversy. The facts are admitted and apparent on the face of record. The other judgment reported as Sarwar Khan v. Mir Ali and 10 others, [1980 CLC 110], speaks that the Court in the circumstances of certain cases can suo motu enlarge time and condone the delay. No doubt, according to circumstances of the case for the ends of justice, such exercise of powers is necessary. The Court may enlarge time but no such circumstances exist in the case in hand. Therefore, being distinguishable principle of law laid down in the referred judgment has no application.

10. In view of the hereinabove discussed factual and legal proposition, the Courts below have not committed any illegality or irregularity while dismissing the appeal. The judgments are quite in line with the spirit of law and principles enunciated by the superior Courts. Thus, finding no force, this appeal stands dismissed with no order as to costs. ZC/15/SC(AJ&K) Appeal dismissed.