1986 PLP 441 (CLC)

Civil Revision Application No. 174 of 1985, decided on 22nd September, 1985. ‑‑‑S. 115‑‑Limitation Act (IX of 1908) S. 5 s Art. 152‑‑Appeal against order of civil Court‑‑Limitation‑‑Delay‑‑Condonation‑‑Appeal filed being time‑barred by 5 days and delay not satisfactorily explained in application for condonation of delay‑‑Appeal, held, was rightly dismissed by appellate Court in circumstances. A.T. Mahmood for Applicant. This revision applicant calls in question a judgment, dated 15th January, 1985 passed by the Additional District Judge, Karachi, dismissing the applicant's appeal as time‑barred. A suit was filed by R. Ismail and Co., a registered partnership firm, against the applicant for recovery of Rs.17,104 as damages in the Court of Civil Judge, First Class at Karachi. The suit was decreed in the sum of Rs.15,104 in favour of the said firm, vide judgment of the Civil Judge, dated 10‑11‑1977. The applicant filed appeal against the said judgment before the District Court at Karachi and such appeal was filed in the Court on 7‑3‑1978. Alongwith with the said appeal an application under section 5 of the Limitation Act was also filed for condoning the delay in filing of the appeal as according to the applicant's own admission the appeal had not been filed within the period of limitation prescribed therefor under the law. Thereafter, both the appeal as well the application under section 5 of the Limitation Act came up before the appellate Court for hearing which vide its judgment, dated 15th January, 1985 refused to condone the delay and dismissed the appeal as time‑barred. Aggrieved by the judgment the applicant has now filed this revision application. Before this Court the contention of Mr. A.T. Mahmood, the learned counsel for the applicant has been that the judgment of the civil Court was announced on 27‑11‑1977 and not on 10‑11‑1977 as shown in the certified copy of the judgment. However, the record of the original Court was sent for and perused. The diary sheet reveals that the judgment was in fact announced by the civil Court on 20‑11‑1977 and in presence of the parties. Thereafter, the applicant as per his own admission, applied for copies of the judgment and the decree on 27‑11‑1977. Copy of the judgment was made ready on 6‑2‑1978, certified on 7‑2‑1978 was delivered to the applicant on 8‑3‑1978 as is evident from the record of the civil Court and copy of the decree was made ready on 11‑12‑1977. Thereafter, the applicant filed appeal before the District Court on 7‑3‑1978. Thus, the period which lapsed between 20‑11‑1977, i.e. the date of announcement of the judgment and 7‑3‑1981 i.e. the date of filing of the appeal was 107 days. Since the applicant applied for copy of the judgment on 27‑11‑1977 and the same was made ready and certified on ?‑2‑1978, the time taken for that purpose is to be excluded while computing the period of limitation. If such time, which came to seventy‑two days, is excluded from 107 days which was the time taken between the announcement of the judgment by the civil Court and filing of the appeal before the appellate Court then the appeal was filed after ‑thirty‑five days after announcement of the judgment. Since the period of limitation prescribed by Article 152 of the Limitation Act for filing appeal under the Code of Civil Procedure to the Court of District Judge is thirty days, the appeal filed by the applicant was time‑barred by five days. The perusal of the affidavit filed by the applicant alongwith his application under section 5 of the Limitation Act shows that this delay of five days has not been satisfactorily explained. The learned appellate Court therefore, rightly dismissed the appeal as time‑barred. In view of the aforesaid, there appears to be no force in this revision and it is hereby dismissed. H . B . T Revision dismissed.