2005 PLP 341 (YLR)

(d) Civil Procedure Code (V of 1908)‑‑‑-- ‑‑‑‑S.96 & O.XLI, R.I‑‑‑Limitation Act (IX of 1908). S.5‑‑‑First appeal‑‑Limitation‑‑ Delay, condonation of‑‑‑In all cases, where condonation was prayed, each day's delay had to be explained‑‑‑Appellants, in the present case, had filed delayed appeal, but they had not given any explanation for such delay except that their counsel had intimated that appeal could be filed till a particular date‑‑‑Said explanation was not enough and ill advice of counsel was not sufficient for condonation of delay. Muhammad Hussain and others v. Settlement and Rehabilitation Commissioner and others 1975 SCMR 304 ref. (e) Civil Procedure Code (V of 1908)‑‑‑-- ‑‑‑‑Ss.115 & 96‑‑‑Appeal‑‑‑Delay Condonation of ‑‑‑Revisional jurisdiction exercise of ‑‑Appellate Court below applying law correctly had rightly found that appeal filed by appellants against judgment and decree of Trial Court was barred by limitation and that delay in filing appeal could not be condoned‑‑ Judgment/order of Appellate Court below not being arbitrary or fanciful could not be interfered with by High Court in exercise of its revisional jurisdiction in absence of any illegality or irregularity in judgment/order of appellate Court. Malik Muhammad Tariq Awan for Petitioner. This revision petition assails orders/judgments/decrees dated 19‑12‑2003 and 12‑2‑2004 passed by the learned Civil Judge and learned Additional District Judge, Sheikhupura whereby suit of the respondent was decreed and appeal of the petitioners was dismissed as barred by limitation, respectively.

2. Precisely, relevant facts are that the respondent is a consumer of the petitioners with reference No.1543 -134360R which was subsequently changed by the petitioners twice. The respondent had been regularly paying the electricity bills and there was nothing outstanding against him when in the month of August, 1998, his electricity meter became defective on which an application was moved to the petitioners for change of electricity meter. The respondent instead of changing the meter, issued him a detection bill, on the basis of bills already paid by him. Refusal of the petitioner to withdraw the bill, led to filing of suit by the respondent for declaration with permanent injunction as consequential relief to the effect that he is not liable to pay the demand bill and that the petitioners may be restrained from disconnecting his electricity supply. The respondent pleaded in his plaint that he resides in a small house comprising of three rooms being a man of middle class and his consumption of electricity is much less than the one demanded by the petitioners. He further averred that besides the fact that he is not liable to pay electricity bill of Rs.23,570, the rate of detection bill is excessive/exorbitant as compared to his previous average consumption.

3. The petitioners being defendants in the suit contested it by filing their written statement denying assertions of the respondent in his plaint. Controversial pleadings of the parties, necessitated framing of issues and recording of evidence. The learned Civil Judge who was seized of the matter after doing the needful, decreed the suit of the respondent vide his judgment and decree dated 19‑12‑2003.

4. The petitioners aggrieved of the decision of the trial Court dated 19‑12‑2003, on 10‑2‑2004 filed a time barred appeal which was dismissed on 12‑2‑2004. They have now filed instant revision petition against the judgments and decrees of the two Courts below.

5. Learned counsel for the petitioners submitted that the petitioners filed an application under section 5 of the Limitation Act, 1908 detailing sufficient cause for the condonation of delay occasioned in filing the appeal but a contrary view taken by the Appellate Court is not in consonance with the settled principle known for administration of justice. He further submitted that copies of the judgment and decrees appealed before the First Appellate Court were supplied on 16‑1‑2004 and on the last day of limitation, Eid holiday's intervened and by excluding those holidays, appeal of the petitioners was within limitation. It was further submitted on behalf of the petitioners that it is settled proposition that instead of non suiting the litigants on technicalities, the cases should be decided on merits but this aspect of the case, escaped notice of the Appellate Court. Learned counsel for the petitioners also urged that the petitioners being departmental functionaries were not to be dealt like trained litigants because the Government Departments, have to rely on their subordinate functionaries to follow the litigation and that an Advocate who is an expert of law, gave them advice that appeal could be filed till 10‑2‑2004, which was a sufficient cause for condonation of delay.

6. I have anxiously considered the arguments of the learned counsel for the petitioners and have examined the record, appended herewith. Undeniably, judgment was announced by the trial Court on 19‑12‑2003, copies of which were applied by the petitioners on 3‑1‑2004 i.e. after 15 days. The copies applied were supplied on 16‑1‑2004. The time spent for obtaining certified copies of the judgment and decree appealed against was to be excluded, which is from 3‑1‑2004 to 16‑1‑2004, by this exclusion, appeal was to be filed till 2‑2‑2004. On the last day of limitation, public holidays of Eid were announced from 2‑2‑2004 to 5‑2‑2004. In this manner, appeal could have been filed on reopening of the Courts i.e. 6‑2‑2004 but instead, it was filed on 10‑2‑2004. There is no explanation of any kind by the petitioners as to why appeal could not be filed from 6‑2‑2004 to 9‑2‑2004. Law regarding condonation of delay has been settled by repeated consistent judgments of the Honourable Supreme Court on the subject whereby it was held that any ill advise by the counsel is not sufficient for condonation of delay. Reference in this behalf can be made to the judgments in the cases of Zulfiqar Ali v. Lal Din and another 1974 SCMR 162; Mst. Mahmooda Begum and others v. Major Malik Muhammad Ishaq and others 1984 SCMR 890; Muhammad Afzal Bhatti and 17 others v. Province of Punjab through Collector, Rawalpindi and 4 others 1997 SCMR 296 and Bashir Ahmad v. Muhammad Sharif and 4 others PLD 2001 SC

228. Similarly, controversy regarding giving grace to the Government Department, as compared to private litigants, has also been put to rest by the Honourable Supreme Court by holding that Government cannot be treated differently than the private individuals on the question of limitation, in the case of Government of the Punjab through Secretary (Services), Services General Administration and Information Department, Lahore and another v. Muhammad Saleem PLD 1995 SC 396.

7. Limitation once having started to run, cannot be stopped by any subsequent act, as held by the Honourable Supreme Court in the case of Cantonment Board, Rawalpindi v. Muhammad Sharif through Legal Heirs PLD 1995 SC

472. In all the cases, where condonation is prayed, the applicant has to explain each day's delay but in the case in hand, no such explanation by the petitioners had been given except that their counsel intimated them that appeal could be filed till 9‑2‑2004 but this explanation is not enough as observed above. Reference in this behalf can be made to the case of Government of the Punjab, through Secretary Services (supra) and Muhammad Hussain and others v. Settlement and Rehabilitation Commissioner and others 1975 SCMR 304.

8. For the reasons noted above, I have no ambiguity that First Appellate Court correctly applied the law and rightly held that appeal of the petitioners was barred by limitation and the delay caused by them in filing it, cannot be condoned. Judgment/ order of the Appellate Court is not shown to be arbitrary or fanciful and without set it aside, judgment and decree of the trial Court cannot be reversed. Both the Courts below committed no, illegality or irregularity as envisaged by section 115, C.P.C. in absence of which no interference in revisional jurisdiction by this Court is permissible, under law. This revision petition has no merit in it and is accordingly dismissed in limine. H.B.T./W‑26/L Revision dismissed.