P L D 1988 Karachi 468 (PLP)

This Revision is directed against the judgment and decree dated 23‑2‑1981 passed by the learned District Judge Karachi, in Civil Appeal No.49 of 1981 dismissing the applicant's appeal on the ground that a same was time‑barred. The case has chequered history. The relevant facts are that one Ibrahim hereinafter referred to as the deceased died on 26‑6‑1968. The present applicant filed Suit No.2064 of 1969 for administration and accounts alleging therein that Ibrahim died issueless leaving respondent No.l as the widow. In the above suit the applicant also impleaded respondent No.2 who is son of deceased's sister, Halima Bai, a sister of the deceased, respondents 3, 4 and 5 are sons of another sister of the deceased, Mst. Noor Bai and respondent No.8 who was according to the applicant an adopted son of the deceased, whereas according to respondent No.l and respondent No.8 was the real son of the deceased. Respondent No.l was the widow of deceased. The suit was dismissed by a judgment and decree dated 30‑10‑1972. Upon an appeal namely, Civil Appeal No.55 of 1972 the case was remanded to the trial Court with a direction to examine respondent No.l and one Ghulam Qadir the alleged father of respondent No.8. It appears that after the above remand order in spite of notice respondents did not put in appearance and, therefore the suit was decreed ex parte on 5‑7‑1978. Against the above ex parte judgment and decree, respondent No.l and respondent No.8 filed Civil Appeal No.284 of 1978 and Constitutional Petition No.1061 of 1978, which was allowed by consent and the case was remanded again with the direction to examine respondent No.l and Gtrulam Qadir. After the above remand order respondent No.l was examined but said Ghulam Qadir was not examined as the appellants' application for summoning him as a Court witness was declined by the learned trial Court. After that the suit was dismissed on 30‑11‑1981. Against the above judgment and decree the applicant filed aforesaid Civil Appeal No.49 of 1981, which was dismissed on the ground of limitation. It appears that ‑applicant filed an application for certified copy of the judgment/decree on 1‑12‑1980. The cost was estimated on 17‑12‑1980 and it was deposited on 18‑12‑1980. The copy was made ready and delivered on 23‑12‑1980. The appeal was filed on 28‑1‑1981 which was barred by limitation by six days. Alongwith the above appeal an application under section 5 of the Limitation Act supported by personal affidavit of the learned counsel for the applicant. Mr. Abdul Latif A. Shakoor was filed, in which it was averred that he thought the date of the judgment and decree as 28‑12‑1980 and not 23‑12‑1980. It may be observed that it is not the date of the judgment but it is the date of the delivery of the certified copy of the judgment and delivery. Be that as it may, the learned District Judge was of the view that the ground given by the applicant for the condonation of delay was not sufficient. He, therefore, dismissed the above appeal on the ground of limitation. The applicant being aggrieved by the above judgment and decree has filed the present revision.

2. In support of the above Revision Mr. Abdul Latif A. Shakoor, learned counsel for the applicant has urged that in view of the personal affidavit of the learned counsel for the applicant, the learned District Judge should net have dismissed the appeal in limine and should have at least issued notice to the other side in order to see whether any counter‑affidavit was going to be filed against the averments contained in the affidavit. He has further submitted that the bona fide mistake on the part of the counsel was a sufficient ground for condoning the delay under section 5 of the Limitation Act. Reliance has been placed on the case of Sale h Shah v . The Sind Industrial Trading Estates Ltd. and others reported in P L D 1962 (W .P ) Kar. 608, in which a Division Bench of the erstwhile High Court of West Pakistan at Karachi condoned the delay on the ground that the same was unintentional and the opposite party could be compensated by payment of cost.

3. In the instant case if I were to take strict view in the matter, there seems to be no plausible reason for the mistake disclosed in the affidavit as the various dates are clearly mentioned in the certified copy of the judgment and decree of the trial Court, but if I were to take a liberal view in the matter and the statement of the counsel is to be accepted as a reason for the delay, the delay might be condoned on payment of reasonable cost to the other side. Since the suit related ‑to the administration of the estate of the deceased, in my view, it will be just and proper to condone the delay on payment of Rs.5,000 as cost to the respondent No.l and respondent No.8 through their counsel as the other respondents are in fact supporting the applicant.

4. I would, therefore, allow the above Revision on the condition that the applicant shall pay the above cost within a period of one month from today failing which the appeal shall remain/stand dismissed. If cost is paid as above the learned D .J. will hear the appeal on merits. The Revision stands disposed of in the above terms. A.A./M‑423/K Order accordingly