1994CLC90 (PLP)

Syed Munir Hussain for Petitioners. Ch. Ghulam Muhammad Bhatti for Respondents. Date of hearing: 22nd May, 1991. Ex parte decree for joint possession of land passed against the petitioners on 28‑4‑1977 was appealed against by them on 1‑9‑1977. The appeal was accompanied by an application for delay in the filing thereof being condoned under section 5 of the Limitation Act for the cause set out therein. A learned Additional District Judge heard the appeal and, refusing to condone the delay, dismissed it on 2‑12‑1980 as being barred by time. The defendants have now come up to this Court on revision.

2. Appellate Judge proceeded to reject the plea for condonation of delay without providing opportunity to the parties for establishing truth or otherwise of the explanation tendered with regard to the period preceding the copies. Another reason pressed by him into use was that the period between 8‑8‑1977 and 1‑9‑1977 had not been explained. In that way, explanation stood rejected without holding any inquiry. Further, it is surprising as to how did the appellate Judge lose sight of the fact that District Court at Lahore was closed for summer vacation during the month of August and it re‑opened on 1‑9‑1977. Absence of explanation for the month of August, 1977 was only unjustifiably used as a ground for rejection of the appeal. That was contrary to the provisions of section 4 of the Limitation Act whereunder such a period is liable to be excluded from the period of limitation, as of right. Since influence which such an illegal consideration A produced on the mind of learned appellate Judge is not clearly ascertainable and there was no inquiry held with regard to the explanation tendered for the period prior to the filing of application for copies, therefore, impugned judgment constitutes an act of irregular exercise of jurisdiction within the scope of section 115 of the C.P.C.

3. In result of the foregoing, this revision petition is accepted and the appellate judgment dated 2‑12‑1980 is set aside with the result that the relevant appeal will be taken to be still pending and awaiting to be determined in accordance with law. Learned District Judge, Lahore will pass appropriate order for the said appeal being expeditiously heard and decided according to law. There is no order made about the costs hereof. H.B.T./S‑367/L??????????????????????????????????????????????????????????????????????? ??????????? Order accordingly.