1989 PLP 3842 (MLD)

‑‑‑S.5‑‑Condonation of delay‑‑Application for‑‑Application for condonation of delay deserves its disposal on merits and order of Court in one sentence would not be enough to meet requirements of law. Asif Saeed Khosa for Appellant. Nemo for Respondent. Date of hearing: 26th April, 1989. The only point urged in support of the R.S.A. was that the lower appellate Court did not properly consider the appellant's application under section 5 of the Limitation Act for condoning delay in bringing the appeal before it beyond time. The objection was well placed, but a perusal of the application disclosed another material defect which indeed goes to the root of the prayer. The trial Court announced judgment on 2nd September, 1966. The appellant made an application for a copy of the judgment on 29th September, 1966. The Copying Agency gave him a chit directing him to collect the copy on 7th October, 1966. It appears that he did not call upon the Copying Agency on the said date; collected copy subsequently on 28th November, 1966, and filed the appeal on 5th December, 1966. He made an application under Section 5 of the Limitation Act for condoning delay in filing the appeal on the premise that he was prevented from collecting the copy in tune because of Typhoid. In para 2 of the application he sought condonation of delay even in filing the copy of the decree at a late stage. He pointed out that initially he requested for a copy of the judgment alone without adding a request for copy of the decree sheet as well. The reason advanced for this omission was that he himself being an illiterate person had got the application scribed through a petition‑writer who did not indicate therein that a copy of the decree was also required. Still further he disclosed that he had made a, application for obtaining copy of the decree on that day itself namely, Ist December, 1966. The copy of the decree produced before the lower appellate Court shows that he had fried it on 3rd December, 1966.

2. It will be appreciated that the period for filing appeal before the learned District Judge was only thirty days, ordinarily expiring on 2nd October, 1966, but the application for getting a certified copy of the decree was made much beyond it, that is on 1st December, 1966. He could have been given some concession had he made this application within the usual period of thirty days. Making it after the expiry of the prescribed period was of no help. Appending copy of the decree with the memo of appeal was indispensable. Order XLI rule 1, C.P.C. leaves no room for holding otherwise. Its absence is fatal as held in Nur Din v. Secretary of State (AIR 1927 Lah. 49) Imam Gul v. Mst. Begum Ji (1980 C L C (S C (A J & K)) 530) .and Muhammad Anwar and others v. Mst. Soma (1981 C L C (Lah.) 1479).

3. The only ground pleaded for condonation of delay was that the appellant was an illiterate person. Ignorance of law is no excuse. He was supposed to know that the appeal lay from the decree and not the judgment alone. He cannot dwell upon such an excuse for condoning two months' long delay. Consequently the impugned decision is quite unexceptionable.

4. The application under Section 5 of the Limitation Act really deserved disposal on merits, and one sentence order was not enough to meet the requirements of law, but here the omission on the part of the appellant to annex copy of the decree sheet was another ground to uphold the view of the learned District Judge. Consequently the appeal is dismissed leaving the parties to bear their own costs. H.B.T./M‑1560/L Appeal dismissed.