2016 PLP 2 (CLCN)

SALAHUDDIN PANHWAR, J.

Through instant Civil Revision application the applicants have assailed the legality of the order dated 05th September 2013 passed by learned Additional District Judge, Shahdadpur in C.A. No.28 of 2012 "Re-Imam Ali v. Muhammad Hassan and others) whereby application under section 5 of Limitation Act for condonation of delay in filing appeal against judgment and decree 19.9.2012 and 25.9.2012 respectively passed in FC Suit No.65 of 2010, was dismissed and in consequence thereof Civil appeal of the applicants was dismissed.

2. Succinctly, but relevant facts, as pleaded in civil suit, are that the respondents Nos. 1 and 2 filed F.C. Suit No. 65 of 2010 for Declaration, Possession, Mesne Profits and injunction wherein pleading that suit property was originally owned by Bacho (father of plaintiffs/respondents Nos.1 and 2) and Allah Warrayo gifted out his share of 0-50 paisa to his brother Bacho and thereafter, said Bacho gifted out said land to his sons (plaintiffs) through registered gift deed dated 08.10.1976 and further that said Bacho leased out suit land to defendant who had been paying the lease mount to plaintiffs and also that about 2 years ago defendants stopped paying lease money. Thereafter, plaintiffs tried their level best but of no avail. Lastly in month of July 2010 defendants refused to pay lease money and to hand over possession. In such back-ground the plaintiffs/respondents Nos.1 and 2 filed the suit for following relief(s):- a) That, it may be declared that the plaintiffs are owner of the suit land bearing S.No. 617 area 02-01 acres situated in Deh Bhiriwari, Taluka Shahdadpur, District Sanghar; b) That, it may be declare that the district officer revenue Sanghar execute deed of convenience dated 17.10.2009 in respect of suit land S. No. 617 area 02-01 acres situated in Deh Bhiriwari, Taluka Shahdadpur in favour of the defendant No.1 Imam Ali and defendant No.4, illegally without lawful authority is void, baseless illegal, ultra vires, fictitious, not binding upon the plaintiffs having no legal effect to be cancelled; c) That the defendant may be directed to deliver the vacant possession of the suit land bearing S.No.617 area 02-01 acres situated in deh Bhiriwari Taluka Shahdadpur, District Sanghar to plaintiff; d) That, the Mesne profits amount of Rs.25312-50 and further amount determined by the court till delivery of possession of suit property S.No. 617 area 02-01 acres deh Bhiriwari taluka Shahdadpur, be paid by defendant to the plaintiffs; e) ........................ f) .......................

3. The appellants/defendants contested the suit before trial Court and in consequence thereof learned trial courts decreed the suit of the respondents Nos.1 and 2 to extent of prayer clauses (a) and (b) only by judgment and decree dated 19.9.2012 and 25.9.2012 respectively.

4. The appellants filed Civil Appeal on 05.12.2012 with an application under section 5 of Limitation Act for condonation of delay in filing the appeal. The learned appellate Court, hearing the arguments on application under section 5 of Limitation Act, dismissed the same by order dated 05.9.2013; which called in question through instant revision application.

5. Learned counsel for the applicants, inter alia, argued that appeal of the applicants ought not have been knocked out on technical ground i.e. delay in preferring the appeal; question of limitation is always a mixed question of law and facts; along-with condonation application an affidavit was filed on Oath; that applicant No.1 was ill hence non-filing of appeal in time was properly explained. Saying so, he prayed for allowing revision. Reliance has been placed on the case laws, reported as 2011 CLC Peshawar 959 and 2005 SCMR 973.

6. On the other hand, learned counsel for the respondents stoutly argued that revision is not maintainable; applicants failed to explain the delay of each day hence appeal was rightly dismissed, being barred by law. No illegality is committed by appellate court in dismissing the application for condonation of delay. Reliance was placed on the case laws, reported as 2003 SCMR 785, 1988 PLC (C.S.) 883, 2010 YLR 3211, 2012 CLC 903, 2010 YLR 2683 and 2006 YLR 705.

7. I have heard the arguments, so advanced by respective sides and have also gone through the available material.

8. Before going into merits of the case it would be significant to mention here that issue of limitation' is not a technical ground but is the commandment of the law which creates certain advantage(s) in favour of one therefore, to deprive the party from such advantages/benefits without making the defaulting party to explain the reasons of delay of each day which prevented the defaulting from approaching the Court in time. With regard to legal position of limitation a commandment of law, it would be conducive here to refer the case of Lal Khan v. Muhammad Yousaf, reported as PLD 2011 SC 657 wherein it is held that: Aggrieved person has to pursue his legal remedies with diligence and if a petition or a suit etc. is filed beyond limitation each day's delay has to be explained. Where vague explanation was given without even specifying the date of knowledge, nor any explanation tenable in law was provided to justify condonation, delay condoned was violative of law and, was not sustainable'. F

.......Whereas, the limitation is a command of law, prescribing the statutory period within which the right has to be exercised and enforced. The Courts thus shall have no lawful authority to ignore the date/period stipulated in the contract, which as a legal consequence is meant to regulate the period of limitation in terms of first part of Article 113 ibid, and on the touchstone of the equitable, discretionary principle, and to hold against the vivid and clear provisions of law, by extending, enlarging or exempting the said period in violation thereof' (underlining and bolding is mine to emphasis).

9. At this juncture, let me be specific in drawing a line that when limitation question is relating to cause of action then defaulting party can insist that it is a mixed question of law and facts requiring evidence because claim of accrual of cause of action which, if is based purely on facts, alleged/set-up towards cause of action in pleading. In such eventuality, it is always safe to let such claim to be evaluated through evidence as such question can well be determined by framing such issue/point, if such plea is disputed by rival party. However, when it is relating to filing appeal, it is only the defaulting party, who alone has to satisfy the Court by submitting plausible reason for each day's delay.

10. On above touchstone, let's examine the plea of the applicants. There are two applicants/appellants in the instant revision and it has never been claimed or alleged that interest of one applicant/appellant is different from that of other applicant/appellant. To file an appeal, it is also not requirement of the law that all appellants should come to file appeal but requirement of law and procedure shall stand satisfied if any one of them (appellants) appears to file affidavit in support of appeal. Signing Vakalatnama in Court is not demand of law or procedure. Thus where appellants are more than one then each is required to explain reasons of his inability in approaching the Court in time. In the instant matter only applicant/appellant Imran attempted to justify the delay which, in my opinion, cannot satisfy the requirement of law for condonation of delay the benefit whereof would be enjoyed by both the appellants/applicants.

11. Be as it may, let's examine the medical certification, so produced by the applicant No.1 to prove circumstances, preventing him from approaching the court in time. The certificate reads as: Medical CERTIFICATE This is to certify that Mr. Imam Ali son of Mitho Khan by caste Rind Taluka Shahdadpur has been suffering from Hepatitis-B and remained under my treatment w.e.f 29.9.2012 to 02.12.2012. Now he is advised bed rest and regular treatment and further advised refer to LUMHS Hyderabad for treatment and admission" The certificate consists of two parts. The first part is being insisted by applicant/appellant for condonation of the delay but the perusal whereof, nowhere, shows that applicant/appellant was confined to bed or was not in a position to move and walk but shows that applicant/appellant was `under treatment'. Being under treatment cannot be taken that one was confined to bed. The second part of the certificate, however, shows that while issuing 'medical certificate' on 07.12.2012, the applicant/ appellant Muhammad Imran was advised as "he is advised bed rest and regular treatment'. It is surprising that when applicant/appellant was advised to 'bed rest and regular treatment' he started pursuing the matter by filing appeal. Thus, it becomes quite clear that applicants/appellants cannot be said to have reasonably explained the delay of each day's delay. On this proposition significant to refer the case of Muhammad Ramzan v. Zulfiqar Ahmed, reported as 2003 SCMR 785 wherein honourable Supreme Court held: `Perusal of the certificate does not indicate that the petitioner was suffering from such disease on account of which he was not in a position to contact his counsel. Moreover, it has not been explained that besides the petitioner, there was no other male member in his family to contact his counsel'

12. In another case, reported as 2006 YLR 1705, it was held that:- .......Similarly the illness of one of the appellants is also not a sufficient ground as they were no less than 23 appellants' 11(sic.) As regard the plea of applicants/appellants that their counsel did not inform them, it would suffice to say that the appellants/applicants were supposed to be vigilant in pursing their rights and interests. However, the principal is bound by the acts and omission of his agent hence when some mala fide or illegality is alleged against the 'agent' the principal should claim damages. The settled principle of law, against such like plea, is that for any mistake, which may be said to have been committed by the counsel of a party, or the question as to whether or not the Advocate failed to communicate proper information to his client as to the proceedings of his case, the only remedy available to such a client/party is to file a suit for damages against such a delinquent counsel with other legal remedies, if available, as was held in the case law, reported as 2010 YLR 2683.

12. In view of above discussion, I am clear in my view that applicants/appellants have failed in making out a case for setting aside the impugned order of dismissal of application under section 5 of limitation Act so passed by learned appellate court. Accordingly, this revision petition, being devoid of merits, is hereby dismissed with no order as to costs. HBT/I-29/Sindh Revision dismissed.