1995 PLP 746 (MLD)

3. The suit was contested by the petitioners defendants who raised quite a few legal as well as factual objections in their written statement which gave rise to as many as 12 issues.

4. After recording the evidence of the parties which they wished to produce, the learned trial Court vide: its judgment dated 20‑6‑1993 decreed the suit. The operative part of the judgment of the trial Court is reproduced as under:‑‑‑ "Consequent upon my discussion and findings above the suit of the plaintiff is decreed to the effect that all the revenue record pertaining to the suit property shall be rectified to the effect that the share of the plaintiff in the suit property is not subject to any kind of mortgage and cannot be mortgaged by the defendants on the plea of previous mortgage. Parties are, however, left to bear their own costs."

5. The petitioners‑defendants were not contented with the order of the trial Court dated 20‑6‑1993 and thus filed an appeal before the learned Additional District Judge who vide his order dated 17‑1‑1994 dismissed the appeal on the grounds that it was barred by time. Hence this petition.

6. Syed Mahboob Ahmad Shah, Advocate learned counsel for the petitioners submitted at the bar that the present case was decided by the trial Court on 20‑6‑1993 and that the petitioner had applied for the certified copies on the same day, that the certified copies were given to him on 18‑7‑1993 and, therefore, the petitioner was to institute the appeal before the learned Additional District Judge, Mansehra on or before 17‑8‑1993 i.e., within 30 days from the order of the Civil Judge. He stated that in the month of August the Civil Courts were closed due to summer vacations and, therefore, the petitioners‑defendants had to institute the appeal before the learned Additional District Judge on 1‑9‑1993, that the appeal in question was submitted before the learned Additional District Judge on 2‑9‑1993 (late by one day) and that alongwith it an affidavit was filed that since the petitioner defendant No.1 was suffering from diarrhoea and fever, therefore, he could not file the appeal on 1‑9‑1993 and that the learned Additional District Judge should have condoned the delay of "one day" in filing the appeal in the circumstances of the present case. According to him the affidavit filed by the petitioner defendant was not controverted by the plaintiff respondent and, therefore, the contentions of the petitioner appellant that he was sick on 1‑9‑1993 remained unchallenged, and that under the circumstances, the Additional District Judge should have condoned the delay of one day. He further stated that the learned Additional District Judge has not followed the law as laid down, in this respect, which is to the following effect:‑‑‑ (1) Government of Sindh through Secretary, Board of Revenue, Hyderabad and another v. Niaz Ahmad and others (sic). (2) Government of Sindh and another v. Abdul Ghaffar reported in 1991 SCMR 2293: "Art.185(3)‑‑‑Supreme Court Rules, 1980, O.XXXIII, Rr.3 & 6‑‑ Limitation Act. (IX of 1908), S.5‑‑‑Condonation of delay in filing petitions for leave to appeal‑‑‑Appellants' explanation was that two days delay, was not due to their fault but was due to the absence of daftry of the Copying Branch of High Court due to which copies could not be delivered to them in time thus causing two days' delay‑‑‑No counter‑affidavit having been fled by respondents against the affidavit in support of condonation application, facts alleged therein remained uncontroverted‑‑‑No contumacious delay on the part of appellants thus was established‑‑‑Delay, if any was, however, condoned." (3) Pakistan through Secretary Communication, Islamabad v. Messrs Habib Insurance Company Ltd., Karachi reported in 1991 CLC. 1270: (b) Contract Act (IX of 1872)‑‑‑ ‑‑‑Ss.151 & 152‑‑‑Limitation Act (IX of 1908),S.5‑‑‑Delay of four days in filing appeal‑‑‑Circumstances of the case did not warrant gross negligence on the part of appellant in filing appeal ‑‑‑Sufficient ground had been made out for condoning delay in filing appeal‑‑‑Application for condonation of delay was allowed and appeal was seemed to be within time."

7. The learned counsel further submitted that since sufficient cause had been shown by the petitioner defendant and there was no act of gross negligence on his part in filing the appeal, therefore, the learned Additional District Judge should not have rejected the appeal on that account.

8. On the other hand, the respondent stated that since the certified copies had been obtained by the petitioners defendants on 18‑7‑1993, therefore, they should have filed the appeal on or before 31‑7‑1993 that appeal was not filed before the closure of the Courts for summer vacations, therefore, the appeal was rightly dismissed by the Additional District Judge.

9. After going through the record of the case and hearing the arguments and the law cited by the learned counsel for the petitioners I am of the view that the petitioners had not acted negligently and had also shown sufficient grounds for not filing the appeal on 1‑9‑1993 because of his illness and the fact that the affidavit filed by the petitioners before the Additional District Judge was not rebutted by the respondent plaintiff by filing a counter‑affidavit, therefore, the facts alleged in the affidavit in support of the condonation application remained uncontroverted and as such no contumacious delay on the part of the petitioners defendants was thus established. One day's delay should have been, therefore, condoned by the Additional District Judge.

10. Accordingly this revision petition is accepted, the order of the learned Additional District Judge dated 17‑1‑1994 is set aside, by condoning the delay of one day in lodging the appeal, the case is remanded to the learner: Additional District Judge to decide the case on merits. A.A./1698/P Case remanded.