1999 PLP 1123 (YLR)

CHAUDHARY MUHAMMAD TAJ, J.‑ This appeal is directed against the judgment and decree passed by District Judge Mirpur on 16‑9‑1998, whereby, the plaintiff respondent's suit was decreed. The facts giving rise to the present appeal are that plaintiff‑respondent filed a suit for the payment of Rs.5,35,000 for damages in the Court of District Judge, Mirpur. The suit was resisted by the opposite side, hence issues arising out of the pleadings of the parties were framed. The trial Court received evidence from both the parties, and after hearing them decreed the suit. Hence this appeal. Haji Muhammad Anwer, counsel for the respondent raised a preliminary objection, that the present appeal is time barred, hence may be dismissed on the sole point. Ch. Lal Hussain, counsel for the appellant maintained that appeal though was filed beyond the prescribed limitation, but there is a sufficient cause for the condonation of delay in filing the appeal. It was argued that arguments in the case were heard by the trial Judge and the judgment was reserved. No notice was issued to the counsel or the party for the announcement of the judgment. The judgment was announced in their absence. Therefore, there was a sufficient cause for the condonation of delay in filing the appeal. The affidavits filed on behalf of the counsel representing the appellant before the trial Court and the representative are attached with the application filed for the purpose. Learned counsel read out the affidavits filed by Mr. Abdul Ghafoor Qureshi, counsel for the respondent and Mr. Imtiaz Hussain Butt, Clerck/representative of the appellant. Learned counsel referred to PLD 1951 Lahore page 147 and PLD 1969 SC 582, in support of his assertion. We have heard the learned counsel for the parties and also gone through the record. carefully. The judgment was announced on 16‑9‑1998. The perusal of: .memorandum of appeal does not show that on which date, the appellant, according to his own case, came to know about the announcement of the judgment. However, it appears from the affidavit filed on behalf of the representative of appellant (Mr. Imtiaz. Hussain Butt) that he got the knowledge on 16‑1‑1999. Whereas, appeal was filed on 12‑2‑1999. No explanation, whatsoever, was offered for the delay caused, after the information of the announcement of the judgment. Chaudhry Lal Hussain frankly stated that he has no explanation for the aforesaid period. It will also be important to note that copies of the judgment and decree were received on 25‑1‑1999, while the appeal which had already become time barred, was filed after 18 days i.e. 12‑2‑1999. The appeal as it appears was prepared and signed by the counsel on 10‑2‑1999, but interestingly, was filed on 12‑2‑1999. It is the appellant's case that the judgment was reserved, after hearing the arguments and no notice at the time of announcement of the judgment was issued to the counsel representing the defendant -appellant. An affidavit in support of the aforesaid plea was also filed on behalf of the counsel representing before the trial Court, and the representative of defendant‑appellant. The perusal of the interim orders shows that arguments in the case were heard on 5‑8‑1998, and the same was fixed for the announcement of the judgment on 11‑8‑1998. A further date was fixed for the purpose on 21‑8‑1998, but the judgment was not announced on that day due to the absence of the presiding officer. Therefore, the date was fixed as 8‑9‑1998, and the judgment could not be announced on that day, so a further date 16‑9‑1998 was fixed on which date, the judgment was announced. All the above orders were signed by the District Judge, except the order dated 21‑8‑1998, which was recorded by the reader in absence of presiding officer. The perusal of the interim orders does not show that the judgment was reserved. Therefore, the assertions of the learned counsel in relation to the application filed for condonation of delay with the support of two affidavits, filed by the counsel representing appellant in the trial Court and his representative, are without any substance. Mr. Abdul Ghafoor Qureshi filed his affidavit that no notice was issued to him for the announcement of the judgment and the same was not announced in his presence. A similar affidavit appears to have been filed on behalf of the representative. It may be stated that a date was fixed for the announcement of the judgment on the day, when arguments were heard, therefore, the question of issuance of notices does not arise at all. The interim order recorded on the day, the judgment was announced, marks the presence of both the counsel for the parties. Therefore, the claim of Mr. Abdul Ghafoor Qureshi, for judgment being announced not in his presence stands contradicted. Even, otherwise, the point merits no consideration, as the date was fixed for announcement of the judgment and in case a counsel does not appear to hear the judgment cannot claim any condonation on the ground that the Court did not announce judgment in his presence. Therefore, the affidavits filed by the aforesaid persons are of no help to the appellant and hardly advance their case for the purpose. An appeal or application for review of judgment or for leave to appeal or any other application to which section 5 of Limitation Act is applicable, may be admitted, after the period of limitation prescribed therein, if the appellant or applicant satisfies the Court, that he had sufficient cause for not filing the same within such period. The term "sufficient cause" is not defined, however, the test, 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. It may be clarified that nothing shall be deemed to be done bona fide or in good faith, which is not done in due care and attention. The proposition came under the consideration of Supreme Court of Pakistan in a case titled "Attaullah Malik v. Custodian Evacuee Property" (PLD 1964 SC 236 P.255), where the same was resolved in the following words:‑‑ "Under section 5 of the Limitation Act, there has to be a finding of sufficient cause. In pre‑partition India, sufficient cause had been defined as circumstances beyond the control of the party and I do not know any case, wherein this definition of sufficient cause had been rejected. However, at least in determining sufficient cause, while dealing with the same expression in Order IX, Rule 8, C.P.C., and Order IX, Rule 3, C.P.C., the Courts had been lenient and had been condoning some negligence, i.e. negligence to the extent to which it is regarded as human though they never condoned gross negligence. At the same time, the Courts had always been strict in demanding proof of sufficient cause for every day, which had expired after the ordinary period of limitation. " The similar proposition came under discussion before the Lahore High Court in a case titled "Pakistan v. Firm Lodhi House" (PLD 1968 Lahore 926), wherein the following observation was made:‑‑ " 'Sufficient cause' has always been considered to be something beyond the control of a party. The delay in this case occurred owing to the consideration of the matter by various departments. The file was changing hands from the department to the other and the Government was in full control of the file and if good care had been shown, there was nothing to prevent the Government from filing the appeal in time. If delay is condoned in such a case, it would amount to putting a premium on the departmental delays and to place the Government in a position of advantage vis‑a‑vis, a citizen to whom a valuable right has accrued by the lapse of the time prescribed for filing the appeal." The proposition again attracted the attention of Peshawar High Court in a case titled "Mir Afzal and 6 others v. Samiur Rehman and 34 others" (1980 CLC 1447). The observation was made in the following manner:‑‑ "It is settled law that in order to have the benefit of section 5, Limitation 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 anywhere 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 the 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 can be deemed to be done bona fide or in good faith, which is not done with due care and attention. " In another case titled "The West Pakistan Agriculture Development Corpora tion and 2 others v. Soomar and 2 others" (PLD 1984 Karachi 190), the same proposi tion was elaborately discussed on page 193, in the following words:‑‑ "Under section 5 of the Limitation Act, the Court is empowered to exercise it discretion for condoning the delay if from the facts and circumstances of the case, it is satisfied that the appellant due to sufficient cause was prevented from preferring the appeal within the prescribed time. Sufficient cause has nowhere been defined nor can a fixed rule be laid down to determine what is sufficient cause. It entirely depends upon the facts and circumstances of the case, which may differ from one case to another. Therefore, one has to examine the facts and grounds set out by the appellant. The discretion to be exercised by the Court should be in a judicial manner. Neither it should be arbitrary nor very liberal. If the discretion is exercised on wrong notion of law it will not be an exercise of judicial discretion. The Court has to see that while exercising discretion no injustice is done to any party. The notions of justice are not to be extended only to confront the appellant but there is another party before the Court and he is the respondent. The Court has, therefore, to see that justice is done to both the parties according to law. The best rule to guide the discretion is whether the appellant had acted with reasonable deligence in presenting the appeal. In an application under section 5 of the Limitation Act, it is the duty of the party who is seeking condonation of delay, to explain the delay of each and every day and unless it is satisfactorily explained, delay cannot be confoned. It is to be borne in mind that by lapse of time a vested right is accrued to the other party of which it cannot be deprived lightly." In the present case, the judgment was announced on September 16, 1998. The appeal was filed on February 12, 1999, after the prescribed limitation. The appellant has failed to show any sufficient cause for the condonation. It may be stated that appellant has not mentioned in the appeal or an application filed for the condonation of delay that when he acquired the knowledge of the judgment. The grounds based on aforementioned affidavits are irrelevant and are without any substance. It would be important to mention that according to the appellant's own case, as appearing from the affidavit of his representative, he acquired the knowledge of the judgment on January 16, 1999, but interestingly, no explanation is given for the delay caused, from January 16, 1999 to February 12, 1999, when the appeal was filed. It will not be out of place to mention that appeal was signed on February 10, 1999 but the same was filed on February 12, 1999. It does not require any discussion that delay of each day has to be explained. If the assertion of the appellant, according to his own case is accepted to be correct, even then no explanation, whatsoever, is offered for the period from January 16, 1999 to February 12, 1999. Before parting with the judgment, it would be necessary to mention that the cases referred to by the learned counsel for the appellant have no bearing on the facts of the present case. The case titled "Mst. Fatima Bibi v. Noor Muhammad Shah" (PLD 1951 Lahore 147) is inapplicable to the facts of the present case, as the judgment in that case was reserved and the same was announced in the absence of the parties. The other case titled "Allahdino v. Fakir Muhammad and another" (PLD 1969 SC 582), also deals with the situation where in a case the litigant is kept in dark about the fate of the case and the result is decided in his absence. In view of above discussion, the appeal is time‑barred which is hereby dismissed with no order as to the costs. H.B.T./167/AJ&K Appeal dismissed.