P L D 1994 Karachi 255 (PLP)

Date of hearing: 23rd December, 1993. The facts giving rise to this petition are that the suit filed by the respondent for recovery of dower and maintenance being Family Suit No.255 of 1989 was decreed by Xth Civil Judge, Karachi (South). The present petitioner preferred an appeal being Family Appeal No. 47 of 1991, which was dismissed by VIIth Additional District Judge, Karachi (South), vide orders passed on 11-12-1991. Being aggrieved, the petitioner has preferred the present Constitutional Petition. I have heard Mr. Abdul Latif A. Shakoor, the learned counsel for the petitioner and Mr. Abdul Wajid Wyne, the learned counsel for the respondent No.1. The impugned order passed by the Additional District Judge shows that the appeal before him was barred by limitation and when the counsel for the appellant was confronted with this position, he avoided to argue the case in spite of a number of dates given to him for the purpose. The impugned order of the Additional District Judge reads as under:

"Appellant remained absent and respondent appeared. On 28-10-1991 appellants' advocate remained absent and he was required to argue on the point of limitation, subject to such objection notices were ordered to the respondent but in spite of the fact that the appellant was afforded with chances of hearing available on record to be on 28-10-1991, 7-11-1991, 18-11-1991 and 24-11-1991, but appellant remained absent, and due to pre-occupation appeal was kept pending on 2nd of December, 1991 but neither the appellant appeared nor advanced agreement in favour of the appellant so looking to the fact that appellant is not prepared to argue the appeal. Hence the same is dismissed with costs." The facts show that the suit of the respondent No. 1 and the minor daughter was, decreed on 30th April, 1991. The petitioner applied for certified copy of judgment and decree on 5-5-1991 which was delivered on 12-8-1991. It is admitted by the learned counsel that the appeal was preferred on 14-9-1991. The computation of the above dates would show that the appeal has been filed with a delay of seven days beyond the permissible period of limitation for filing of an appeal, which is 30 days under Article 152 of the Limitation Act. Thus the appeal before the District Judge in the present case on the very face of it was hit by the Law of Limitation and had to be dismissed as such under the provisions of section 3 of the Limitation Act which reads as under; "

3. Subject to the, provisions contained in sections 4 to 25 (inclusive), A every suit instituted, appeal preferred, and application made after the period of limitation prescribed thereof by the first schedule shall be dismissed, although limitation has not been set up as a defence." It may also be observed that no application for condonation of delay under section 5 of the Limitation Act was moved by the present petitioner. The result, thus, is that the appeal was rightly dismissed by the lower appellate Court and there are no grounds to interfere with the said order. The learned, counsel for the petitioner also submitted that in exercise of Constitutional jurisdiction under Article 199 of the Constitution on Islamic Republic of Pakistan, 1973, this Court can examine the judgment of the original Court and give its finding: I do not agree with this contention of the learned counsel. Article 199 of the Constitution lays down that High Court may exercise such jurisdiction if it is satisfied that no other adequate remedy is provided by the law. In the present case the judgment of the original Court is an appealable judgment and as such appeal had been .filed by the present petitioner. This means that the remedy provided in law had been availed by the petitioner but the petitioner has only to thank his own stars that the appeal was filed beyond the period of limitation without praying for condonation of delay B and also that he failed to argue his case in spite of number of opportunities given by the lower appellate Court. No doubt this Court can consider a case on merits provided no other adequate remedy is available in law and would also desist from taking into consideration any such case specially where the appreciation of facts and evidence is required. In view of the above discussion, I find no merit in this petition, which is accordingly dismissed with no order as to costs. AA./M-1915/K????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.