2007 PLP 1790 (MLD)

MIAN HAMID FAROOQ, J.

The petitioners/plaintiffs instituted the suit for declaration, against respondents Nos.1 to 3, wherein respondent No.4 was impleaded as pro forma defendant, thereby challenging the validity and legality of mutation of Tamleek No.25 and 2001, dated 29-9-1993 and 6-7-2000, respectively, respondents Nos. 1 to 3 resisted the suit through the written statement. The learned trial Court framed the issues and called upon the petitioners to produce evidence, however, they despite providing various opportunities failed to produce evidence, therefore, the learned vial Court, while invoking the provisions of Order XVII Rule 3, C.P.C. closed their evidence and dismissed the suit vide judgment and decree, dated 25-7-2006. The petitioners filed time barred appeal together with an application under section 5 of the Limitation Act for condonation of delay. The learned Addl. District Judge held that the appeal is barred by time and there is no sufficient cause for condonation of delay dismissed the appeal being barred by time, vide impugned judgment and decree, dated 23-11-2006, hence the present revision petition.

2. Learned counsel for the petitioners states that since the matter involved in the suit relates to inheritance and the petitioners were deprived from their respective shares by their real brother, therefore, in these circumstances, there was sufficient cause for condonation of delay and thus the impugned judgment is not sustainable. He has relied upon Mst. Qabal Jan v. Mst. Habab Jan and 9 others (1992 SCMR 935) and Hyderabad Development Authority through M.D. Civil Centre, Hyderabad v. Abdul Majeed and others (PLD 2002 SC 84). Conversely the learned counsel for the respondents, while supporting the impugned judgment, has submitted that there was no sufficient cause for condonation of delay and that a litigant is under an obligation to explain each day's delay in filing a lis. He has relied upon (PLD 1980 Lahore 171 No case), Muhammad Nazir and others v. Punjab Province and others (1984 CLC 1386), Muhammad Hussain and. others v. Settlement and Rehabilitation Commissioner and others (1975 SCMR 304), Mst. Hajran v. Sardar Muhammad (1970 SC 287), and Mahmooda Begum and others v. Major Malik Muhammad Ishaq and others (1986 MLD 806).

3. I have heard the learned counsel and examined the available record. The learned trial Court dismissed petitioners' suit on 25-7-2006, they applied for certified copy of the said decision on 16-9-2006 when the period for filing appeal had already been expired, copies of the judgment and decree were supplied to them on the same day, while the appeal before the First Appellate Court was filed on 19-9-2006, therefore, petitioners' appeal was barred by time. The petitioners along with the appeal filed the application under section 5 of the Limitation Act, for condonation of delay on the ground that the petitioners are "parada Nasheen" ladies and are ignorant from law. It appears appropriate to reproduce para. 3 of the application, which reads as follows: --

4. To my mind, the aforesaid two reasons are neither plausible nor in accordance with the parameters set up under section 5 of the Limitation Act justifying condonation of delay. It may be noted that the plea of inheritance now pleaded by the learned counsel for the petitioners was neither taken in petitioners application under section 5 of the Limitation Act nor urged before the learned First Appellate Court. It is for the first time before this Court this plea has been raised. It is settled law that a litigant cannot be allowed to raise altogether a new and different pleas before the appellate/revisional Court, which were not urged before the lower forums. Reference can be made to Anwar Ali and another v. Manzoor Hussain and another (1996 SCMR 1770) and Amir Shah v. Ziarat Gull (1998 SCMR 593).

5. It is settled law as rightly held by the lower appellate Court that a litigant while seeking condonation of delay has to explain each day's delay in filing the lis. The Honourable Supreme Court of Pakistan in the case reported as Muhammad Shujaat Khan through legal heirs and others v. Nawab Mashkoor Ahmed Khan and others (2000 SCMR 53) refused to condone the delay on the ground that the appellant was in old lady and other was Parda Nasheen lady. In another case reported Mst. Bushra v. Farzana Khatoon and 4 others (2000 SCMR 1628) the Honourable Supreme Court has held that the grounds that petitioner being a lady was not aware about the law and that she happened to be lady are not sufficient to condone delay. I feel that no sufficient cause was shown for condonation of delay within the parameters set up by law and the learned First Appellate Court has rightly dismissed petitioner's application and consequent the appeal. 4-A. Now coming to the judgments relied upon by the learned counsel for the petitioners. In the case of Mst. Qabal Jan, ibid, the Honourable Supreme Court of Pakistan after finding that the valuable rights of the parties to the inheritance is involved proceeded to examine the case itself to satisfy about correctness and legality of the judgment in exercise of its powers under section 5 of the Limitation Act read with Article 185(3) of the Constitution of Islamic Republic of Pakistan. The Honourable Supreme Court of Pakistan in such like matters had ample powers to condone delay, while this Court in exercise of its jurisdiction has to confine itself within the four corners of section 5 of the Limitation Act. Furthermore, the Honourable Supreme Court of Pakistan has exhaustive powers under Supreme Court Rules to condone delay. Additionally, the Honourable Supreme Court of Pakistan, per force of Article 187(1) of the Constitution of Islamic Republic of Pakistan, has unlimited powers to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it. Obviously all such powers are not vested with this Court. Similarly, the case of Hyderabad Development Authority, supra, is of no avail to the petitioners as the Honourable Supreme Court has held that the Court should not be reluctant in condoning delay depending upon the facts of the case in consideration. In the case in hand only cause put forth for condonation of delay, as noted above, does not justify condonation of delay. None of the judgments, relied upon by .the learned counsel, is of any avail to the petitioners.

5. For the foregoing reasons, the present petition is incompetent and devoid of any substance hence stands dismissed on both the counts with no order as to costs. H.B.T./K-25/L Revision dismissed.