2017 PLP 353 (YLRN)

ZAFAR AHMED RAJPUT, J.

C.M.A. No. 2441/2014: This C.M.A. has been filed by the appellants under section 5 of the Limitation Act, 1908 seeking condonation of 10 days delay in filing of Second Appeal, which they have maintained under section 100, C.P.C. against the order dated 24.12.2013, passed by the learned 2nd Additional District Judge, Thatta, whereby the application under section 5 of the Limitation Act, 1908 filed in Civil Appeal No. Nil /2013, by the appellant against the judgment and decree dated 01.10.2011 land 08.10.2011, respectively passed by the learned Senior Civil Judge, Thatta in F.C. Suit No. 114 of 2009 (Old F.C. Suit No. 15 of 2007 (Re: Muhammad Khan v. Zaman Khan and 2 others) was dismissed and in consequence thereof the learned appellate Court also dismissed the said civil appeal in limine being time barred.

2. Since the civil appeal No. Nil/ 2013 was dismissed by the learned Appellate Court solely on the point of limitation, I do not deem it necessary to reproduce the facts of the case at length, in short, the question of title was involved between the parties in the Civil Suit No.114 of 2009 in respect of agricultural land admeasuring 14-04 acres, bearing Block No. 79, Chowkri Nos.1 to 4, situated in Deh Nawazio Jalbani, Taluka Shah Bundar, District Thatta and the prayer made by the respondent/plaintiff in the said suit was as under:-- a) Declare that the plaintiff is lawful owner of suit land consisting of Block No. 79/1 to 4, measuring 14-04 acres, Deh Nawazio Jalbani, Taluka Shah Bundar, District Thatta and defendants have no right, title or interest whatsoever in the suit land. b) Decree of possession against defendants directing defendants No. 1 to 3 including their heirs and executors to hand over the peaceful possession of suit land consisting of Block No.79/1 to 4, measuring 14-04 acres, Deh Nawazio Jalbani, Taluka Shah Bundar, District Thattawith metes and bounds to the plaintiff at site. c) Decree against defendant No.1 Zaman Chandio, his heirs and executors to pay to plaintiff Rs. 35,000/= the cost of Kharas of Paddy crop illegally removed and taken away by him and to pay mesne profit of Rs. 55,000/= of the value of three crops from Rabi, 2006 till date and future mesne profit from the date of filing the suit till actual delivery of possession of suit land to plaintiff at the rate to be determined by this Hon'ble Court. d) Costs of the suit may be awarded to the plaintiff. e) Any other relief which this Hon'ble Court may deem fit and proper may be awarded to plaintiff.

3. The appellants/defendants resisted the suit by filing their written statement wherein they denied the claim of the plaintiff, whereupon issues were framed and the evidence of plaintiff's side was recorded. The appellant/defendants failed to lead their evidence despite availing several opportunities besides, last and final chance and even after imposition of costs; consequently on 24.09.2011 the side of appellants/defendants for leading evidence was closed by the learned trial Court. On appraisal of evidence on record, the suit was decreed by the learned trial Court to the extent of prayer clause "a" and "b", vide judgment and decree dated 01.10.2011 and 08.10.2011, respectively. Against the said judgment and decree, the appellants/ defendants filed Civil Appeal No. Nil of 2013, under Section 96 C.P.C. in the Court of District Judge, Thatta on 23.12.2011, after delay of 43 days, along with application under Section 5 of the Limitation Act, 1908, which was marked to learned 2nd Additional District Judge, Thatta, who after hearing the parties, dismissed the said application and in consequence thereof the said civil appeal was also dismissed in limine vide order dated 24.12.2013. It is against this order; the appellant has preferred instant Second Appeal, which is also time-barred by 10 days and for its condonation, the instant C.M.A. has been filed by the appellants/ defendants.

4. I have heard the learned counsel for the parties and also perused the material available on record.

5. Mr. Nasrullah Malik, learned counsel for the appellants, has mainly contended that the appellants are poor illiterate villagers, who were not aware of the limitation involved in filing of this second appeal. He has further contended that the delay of 10 days in filing second appeal was not deliberate and intentional. He has also contended that valuable rights of appellants are involved in this case, therefore, the second appeal should be decided on merit.

6. On the other hand, Mr. M. Ayoob Chaniho, learned counsel for the respondent, opposing the application has maintained that it is settled law that the object of law of limitation is to help vigilant and not to the indolent and the law of limitation is required to be construed strictly.

7. It is well settled principle of law that in order to succeed in application for condonation of delay, each and every day's delay is to be explained. In this regard this Court has held in the case of The West Pakistan Agricultural Development Corporation and 2 others v. Soomar and 2 others (PLD 1984 Karachi 190), as under:-- "Under section 5 of the Limitation Act the Court is empowered to exercise its discretion for condoning the delay if from the facts and circumstances of the case it is satisfied that the appellant due to sufficient cause was prevented from preferring the appeal within the prescribed time. Sufficient cause has nowhere been defined nor can a fixed rule be laid down to determine what is sufficient cause. It entirely depends upon the facts and circumstances of each case which may differ from one case to another. Therefore, one has to examine the facts and ground set out by the appellant. The discretion to be exercised by the Court should be in a judicial manner. Neither it should be arbitrary nor very liberal. If the discretion is exercised on wrong notion of law it will not be an exercise of judicial discretion. The Court has to see that while exercising discretion no injustice is done to any party. The notions of justice are not to be extended only to comfort the appellant but there is another party before the Court and he is the respondent. The Court has, therefore, to see that justice is done to both the parties according to law. The best rule to guide the discretion is whether the appellant has acted with reasonable diligence in presenting the appeal. In an application under section 5 of the Limitation Act it is the duty of the party who is seeking condonation of delay, to explain the delay of each and every day and unless it is satisfactorily explained delay cannot be condoned. It is to be borne in mind that by lapse of times a vested right is accrued to the other party of which it cannot be deprived lightly". In the case of Muhammad Hussain v. Settlement and Rehabilitation Commissioner (1975 SCMR 304) the explanation founded on misconception was not accepted and it was observed that in civil matters a valuable right accrues to the other side by laps of time and it is necessary that each day's delay should be necessarily explained. Similar principle was laid down in the case of Muhammad Saeed v. Shaukat Ali (1982 SCMR 285) calling upon to appellant to explain each day's delay. In the case of Mst. Rukhsana Ahmed v. Tariq Attaullah (1980 SCMR 36), even one day's delay was not condoned, holding that even if the time requisite for obtaining the certified copy of the ejectment order is computed from date of application for grant of copy to date of its delivery, the first appeal filed by petitioner was barred by one day.

8. In the instant case, after perusing the material available on record, what I have observed is that the negligence and carelessness of the appellants, who failed to pursue their case and appeal with due diligence before the Courts below did not leave off up to the learned appellate Court, and again they filed this Second Appeal with delay of 10 days and for its condonation, they have filed the instant C.M.A.

9. I am of the considered view that the illiteracy and ignorance of law is no ground to condone the delay of 10 days in filing of Second Appeal. All that needs to be stated is that ignorantia juris non excusat i.e. ignorance of law is not an excuse. In any case, I fail to believe that in today's date and age people are not aware of their legal rights of being entitled to file appeals against the judgments of the courts below. Therefore, the cause shown by the appellants for condonation of delay being unsound and illogical is declined.

10. For the foregoing reasons, I do not find any merit in the instant application under section 5 of the Limitation Act, 1908; therefore, the same is rejected and Second Appeal is dismissed being time barred along with listed application, with no order as to costs. ZC/Z-2/Sindh Appeal dismissed.