1999 PLP 2357 (MLD)

PLD 1983 SC (AJ&K) 25 and 1993 SCMR 837 rel. S. Zafar Abbas Zaidi for Petitioner. Suit for possession through pre-emption in respect of land, comprised in Khasra Nos. 377, 378, 379 and a portion in Khasra No.384, in all measuring 100 Kanals and 4-1/2 Marls, situate in village Garrah Mohabbat of Tehsil Kulachi, was decreed in favour of the plaintiff-respondent by the judgment and decree, dated 7-12-1995 or Mr. Muhammad Qasim Civil Judge, Kulachi against Muhammad Ajmal vendee-petitioner. Petitioner challenged the findings in appeal in the Court of the District Judge, D.I. Khan who, however, by his judgment and decree, dated 20-6-1998 dismissed the appeal being barred by limitation. Hence this civil revision petition. The sole question that falls for determination in this Civil Revision Petition is whether the appeal had been instituted within time and if not whether the learned District Judge has erred in not condoning the delay. The decree was passed by the Trial Court on 7-12-1995. The period of thirty days prescribed for filing of the appeal was to expire on 5-1-1996. The entries of the copying clerk on the certified copy indicate the date of presentation of the application for copies and the delivery of the certified copies both as 21-12-1995. After commuting the one days' period consumed for copies the appeal ought to have been filed on 6-1-1996 at the latest. The appeal was on the other hand filed on 16-1-1996. It was, thus, barred by 11 days. Alongwith the appeal the petitioner had also filed an application for condonation of the delay under section 5 of the Limitation Act. It was alleged that actually application for certified copies had been given to the Moharrir of the Court of the Civil Judge, Kulachi on 7-12-1995 and that the endorsement on the certified copies indicating the date of presentation of the application as 21-12-1995 was wrong. It was also averred that the appellant-petitioner being a Government servant, employed as Supervisor, was on touring job and the delay occurred in filing the appeal was neither intentional nor deliberate. The petitioner in support of his contention neither produced the Moharrir of the Court to whom he had alleged given application for certified copies on 7-12-1995 nor did he even mention his name. Although application for certified copies has to be presented to the concerned authority authorised under section 87 of the Evidence Act and not to unconcerned agency. On the other hand Muhammad Aslam Head Clerk, the authorised copying agent, was examined by the learned District Judge in order to testify the contentions of the petitioner. This Muhammad Aslam stated that two applications had been presented to him by Muhammad Ajmal petitioner on 7-12-1995 one pertaining to another case and the second pertaining to the case in hand. He stated that he entered one application at serial. No.166 of the Copying Register but to the second application i.e. application for certified copies in this case, he gave it a mini number 192-B of the register. He admitted that this Entry 192-B happened to be the last entry pertaining to the certified copies for the year 1995 and was at the tail end of the entries for the year 1995. This witness admitted that original serial No. 192 pertained to altogether a different application and that mini Serial No. 192-A and 192-B had been added to the said Serial No. in the relevant register. He admitted that never prior to the entries at Serial No. 192-B or subsequently mini serial Nos. A and B have been allotted to any application for certified copies. Thus from the statement of this witness firstly the petitioner has been himself contradicted on' the contention that he had submitted application for certified copies to the Moharrir of the Court of the Civil Judge and secondly has contradicted his own endorsement on the certified copies conveying the date of presentation and delivery of the certified copies as 2-1-12'-1995.'Moreover, had the application in the instant case as well been presentation 7-12-1995 how could it happen that one-application presented on 7-12-1995 in another case was entered at Serial No. 166 of 7-12-1995 but the application in the instant case was entered subsequently and that, too, by adding B to the serial No. of a different application. This attempt on the part of the Copying clerk is tantamount to alternation in the relevant record with a view just to proved a cause for meeting the delay in filing of the appeal through exercise altogether futile, particularly when there are clear entries recorded by the said very Clerk showing the date of presentation of application for certified copies as 21-12-1995 and of the delivery of the said copies also as 21-12-1995. In these circumstances, coupled with altogether contradictory plea of the petitioner regarding his engagements as Government servant and the undisputed fact that the certified copies contained the entry regarding filing of the application and the delivery of certified copies as 21-12-1995 the learned District Judge was quite judicious in exercising the discretion for the condonation of delay under section 5 of the Limitation Act, against the petitioner. Moreover, it is not disputed that the petitioner did get certified copies on 21-12-1995. He had at his option plenty of time to file appeal still in time on or before 6-1-1996. He, however, did not file the appeal by that date. The fact that alongwith the appeal he filed application for condonation of delay as well would go a long way to suggest that he was conscious of the delay which had occurred in filing the appeal obviously on the basis of the entries of the copying agency recorded on the certified copies and on that score failing to file appeal in time was definitely barred by limitation thereby accruing valuable rights to the other side. Instead of explaining each and every day's delay for sufficient course he has virtually given no reasons to ask for favourable discretion, rather he has attempted a novel method of questioning the entries in record through improvised manipulations in getting the petition recorded in the relevant register at the tail end of the entries for the year 1995 and that too by managing a mini Serial No. to an application of another person by adding B to that No. In a case reported as Noorul Islam Siddiqui v. Haidri Begum (1983 SCMR 1.7) their Lordships of the Supreme Court held as time, barred the appeal having been filed 11 days after the getting of the certified copies once the period for appeal was over and despite that the appellant did not file appeal immediately after the delivery of the certified copies and failing to explain each and every day's delay after the date of delivery of the copies. As already observed the appellant had ample time at his disposal to file the appeal still well in time after getting the certified copies irrespective of the alleged wrong entries. Under section 5 of the Limitation Act is the duty of the party seeking condonation to explain each day's delay and unless this is done the delay is not to be condoned where valued rights have accused to the other side. Reliance in this respect may well be placed on Province of East Pakistan v. Abdul Hamid (1970 SCMR 558). In this case instead of explaining each day's delay in a convincing manner and through sufficient cause the petitioner has attempted to hang on an unsuccessful exercise of manipulating entries casting doubt on his conduct. In Islamic Republic of Pakistan v. Settlement Commissioner (1974 SCMR 393) their Lordships held that a valuable right accrues to the other side by the lapse of time and he cannot be lightly deprived of this right. The learned District Judge in his elaborate reasonings has not considered the reasons advanced by the petitioner as sufficient to condone the delay and has refused to exercise discretion in his favour. The grant or refusal of condonation being pure question of discretion, I see no substance to interfere with it having been properly exercised by a competent authority. It is, by now an 8 established principle that the superior Court would not and should not interfere with exercise of discretion under section 5 of the Limitation Act exercised by the subordinate Courts unless view of such Court is found preposterous or perverse. Reference with advantage may be made to PLD 1983 SC (AJ&K)

25. Similarly in a case reported as 1993 SCMR 837 it has been held that condonation of delay in filing of the appeal was within the discretion of the Tribunal and the reasons given by the said Tribunal neither arbitrary no capricious same could not be interfered with. Since the petitioner has failed to point out any irregularity, illegality or jurisdictional error in the impugned order, I see no substance to interfere with C the discretion exercised by the competent Court. The result is that this Civil Revision Petition stands dismissed in limine. Q.M.H./248/P Revision dismissed.