2007 PLP 866 (SCMR)

JAVED IQBAL, J.

This appeal is preferred under Article 185(2)(d)(e) of the Constitution of Islamic Republic of Pakistan, 1973 against the judgment dated 15-3-2001 passed by learned single Judge of the Lahore High Court, Lahore, whereby the civil revision preferred on behalf of respondents has been accepted.

2. Heard Mr. Jariullah Khan, learned Advocate Supreme Court on behalf of appellants, scanned the entire record and perused the judgments of learned trial and Appellate Courts as well as the judgment impugned. The entire controversy revolves around the question as to whether the time spent in filing and pursuing the review petition does constitute "sufficient cause" for condonation of delay in filing appeal? Before the said question could be answered it must not be lost sight of that the remedy of filing review was chosen by the petitioner himself against the judgment and decree, dated 4-11-1984. The review petition was accepted but subsequently on filing appeal by the respondents it was reversed. It is also an admitted feature of the case that civil revision was preferred by the appellants but not pressed on the plea that the original judgment and decree dated 4-11-1984 would be challenged by way of appeal and seeking condonation of delay for the period spent in filing appeal. Now we adverted to the question, as mentioned herein above. The words "sufficient Cause" as used in section 5 of the Limitation Act, 1908 have its own impact and significance. The existence of "sufficient cause" is sine qua non for condonation of delay. Insofar as `sufficient cause" is concerned neither it can be defined precisely nor a specific yardstick can be fixed for its determination as it varies from case to case. It can, however, be said with certainty that every cause for condonation of delay cannot be equated with that of "sufficient cause" which in our view amounts to cogent reasoning, convincing justification and satisfactory explanation.

3. The provisions as contained in sections 5 and 14 of the Limitation Act, 1908 were discussed in case Sherin v. Fazal Muhammad 1995 SCMR 591, relevant portion whereof is reproduced hereinbelow:-- "(5) Diligence is a state of human conduct. What should be the standard for assessing the behaviour of an appellant to style him as diligent. Because of fluidity of the notion of diligence, it is difficult to set up a precise yardstick. Whether or not litigant has acted diligently and with care, would differ from case to case. Speaking broadly, a person may be said to have acted diligently, when he has informed himself of all relevant factors, taken all obvious steps and precautions, characterized by a degree of effort, as in a given situation, a reasonable person would do. But, the epithet of "reasonable", opens wide the measure of application of this yardstick, on the factual plain, for the word "reasonable" is not susceptible of any precise definition. Etymologically, it signifies according to reason, which expression itself is open to difference of opinion. Whether or not a person has acted diligently, in ultimate analysis, would depend on the circumstances of each case and cannot be determined on the foundation of any judicial syllogism. (6) The criterion of "due diligence" for enlargement of time is prescribed by section 14 of the Limitation Act, which upon its terms applies only to the suits and applications and not to the appeals. On the other hand section 5 is applicable to the appeals but it does not apply to suits. The question of condonation of delay, therefore, has to be examined on the basis of section 5 and not section 14 of the Limitation Act. Not unoften, while examining the question of condonation of delay, in filing the appeals, the Courts have been invoking the principles underlying section 14 of the Act. The High Court has declined to condone the delay entirely on the touchstone of section

14. It is, however, to be remembered that expression "due diligence" and "good faith" appearing in section 14 do not figure in section

5. The condition prescribed in the latter section for its applicability is "sufficient cause" but what is sufficient cause is not capable of connotation, with exactitude and would differ from case to case. We may observe that filing of appeal in a wrong Court on account of mistaken advice tendered by the counsel canvassed on behalf of the appellants for condonation of delay by itself would not attract section 5 but when the litigant and the counsel have acted with due care and caution and their conduct does not smack of negligence, the institution of the appeal in the wrong forum may constitute a "sufficient case" within the meaning of section 5 for condonation of the delay."

4. The case in hand has been examined on the touchstone of the criterion as mentioned hereinabove and we are of the view that since valuable rights have been accrued in favour of respondents it cannot be snatched on the ground that a review petition was filed in good faith as appeal could have been filed conveniently. In other words the respondents should not be deprived of the valuable rights which they have acquired due to the laches and negligence of the appellants. In this regard we are fortified by the dictum as laid down in Rehmatullah v. Ulas Khan 1968 SCMR 975; Abdul Hamid v. Chief Settlement Commissioner, Lahore 1968 SCMR 120; Rahim Bux v. Settlement Authorities 1968 SCMR 78 and Ahmad Din v. Mst. Rasool Bibi 1968 SCMR 843.

5. The learned single Judge in chambers has examined the question of condonation of delay in a comprehensive manner in the judgment impugned, relevant portion whereof is reproduced hereinbelow for ready reference: "(7) The argument of learned counsel for the respondent that time consumed in proceeding arising out of review should necessarily be deemed as "sufficient cause" within the meaning of sections 5 and 14 of the Limitation Act and should be excluded. Suffice it to say, that such proposition if accepted would lead to ludicrous situation. This would mean that a loosing litigation as a matter of right shall have two remedies against a decree, one of seeking review and even loosing the case in the review proceedings up till the apex Court, can challenge the decree afresh by filing a time-barred appeal and seek condonation of delay on the reasoning that the review matter was being bonafidely pursued, therefore, the whole period consumed in this behalf be excluded from limitation. This is exactly what is being claimed by the respondent, in the present case. The petitioner should have pursued the revision petition before this Court which was withdrawn. I am not convinced by the submission of the learned counsel for the respondent, that it was on the advice of this Court, the petitioner withdrew the revision, because this seems to be result of an afterthought, as there is nothing in the order reproduced above, that this Court had induced the petitioner to file the appeal. Possibility cannot be ruled out that this Court was about to dismiss the revision petition, when the learned counsel withdrew the matter by making statement that he would like to pursue the remedy of appeal." No illegality or irregularity could be pointed out by the learned Advocate Supreme Court on behalf of appellants warranting interference in the judgment impugned. In sequel to above mentioned discussion the appeal being meritless is dismissed. M.H./A-13/SC Appeal dismissed.