1993 PLP 1547 (CLC)

Date of hearing: 31st March, 1993. This petition has been riled to challenge the orders of Qazi Dalbandin and Majlis‑e‑Shoora Kalat at Mastung dated 31‑8‑1992 and 30‑12‑1992, respectively.

1. The respondent riled a suit on the averments that he being the real brother of petitioners is co‑sharer in ancestral landed property located in "Kurd Abad" and uncultivated lands alongwith three Karezat etc. known as "Kun Kun" Mouza Anjecr‑Wan" the details whereof have been mentioned in the plaint. 1t was also contended that on 13th December 1991, a document of private partition of the property was executed between the parties but now the petitioners are not abiding by it, as such, a decree for partition of the lands be passed.

2. The petitioners contested the suit and riled written statement wherein petitioner No.2 accepted the execution of private partition agreement, whereas respondent No.l denied it. It may be toted here that as per the terms of the agreement distribution in respect of one Karez i.e Kurd Abad was agreed to take place between the parties subject to the conditions specified therein.

3. During pendency of the suit a miscellaneous application was moved by one Nazar Muhammad, praying to implead him as well as his brothers Noor Shah, Aziz Muhammad as party in the suit. On receiving the reply of the application the learned Qazi recorded the statement of parties in order to decide its fate and then without adhering to the procedure required to decide the matter vide order dated 31‑8‑1992, decreed the suit.

4. A time‑barred appeal was preferred by the petitioners before the Maj1is‑e‑Shoora against the decree alongwith an application under section 5 of the Limitation Act, praying for condonation of delay in filing of appeal on the grounds that on account of illness and subsequent death of the daughter of petitioner No.1 appeal could not be filed within time. The Majlis‑e‑Shoora declined to condone the delay and dismissed the appeal vide order dated 30th of December, 1992, as such, instant petition was filed on 16th February, 1993. Later on a civil miscellaneous application being 156/93 dated 23rd February, 1993 was also preferred with an undated medical certificate, which indicates that the petitioner's daughter died on 28th October, 1992.

5. At the hearing Mr. Ghulam Mustafa Mengal, Advocate for the respondent urged that the appeal filed being hopelessly barred by time has been rightly dismissed by the Majlis‑e‑Shoora, thus the order of Majlis‑e Shoora is not liable to be interfered on this score alone. Mr. Khushnood Ahmed learned counsel of the petitioners urged that the objection so being raised is not sustainable because petitioners filed an application seeking condonation of delay and the respondent had not bothered to file its reply, therefore, the Majlis‑e‑Shoora could have condoned the delay in view of unrebutted facts mentioned in the application.

6. No doubt the appeal filed before the Majlis‑e‑Shoora was barred by 31/32 days according to the calculations made in presence of both the learned counsel. In the application respondent No.2 being Attorney of respondent No.1., incorporated circumstances in pursuance whereof appeal could not be filed within time and the respondent admittedly had not controverted the factual position as. no rejoinder was filed on his behalf. Mr. Khushnood Ahmed, Advocate, stated that in such like situation Hon'ble Supreme Court has instructed that the delay of limitation should be condoned. He referred to 1976 SCMR 79, 1977 SCMR 182,1991 SCMR 2293. I have gone through the reports mentioned above wherein on account of failing to file counter‑affidavit delay was ordered to be condoned. As far as the principle is concerned I am in respectful agreement with it and I observed that it was incumbent upon the respondent to at least controvert the stand of the petitioners by filing the reply of application because in absence whereof adverse inference has to be drawn against the respondent. Mr. Ghulam Mustafa Mengal, Advocate invited my attention to the case of Muhammad Feroz Khan and 28 others 1986 SCMR 930, in which on account of non‑satisfactory explanation for the delay of each day appeal was dismissed. On the strength of this authority he argued that firstly in the application the delay of each day was not explained. Secondly if the daughter of the petitioner No. l was sick but the petitioner No.2 who was his attorney had no inability to approach the appellate Court, for himself as well as Attorney for petitioner No.1. Thirdly under section 5 of the Limitation Act the illness or the death of the petitioner or any one of his relatives does not constitute a sufficient cause for showing indulgence, therefore, the Majlis‑e‑Shoora had rightly exercised the jurisdiction in dismissing the appeal.

7. It has been observed time and against that the limitation creates a valuable right in favour of a party who is deriving benefit out of it, therefore, such right lightly cannot be intercepted and aggrieved party is bound to be vigilant in invoking legal remedies within the stipulated period, unless extraordinary circumstances are available to show the inability for not approaching the Court within the stipulated period. In the case in hand it was not beyond the control of the petitioner No.1 to approach the Appellate Court for filing appeal through his brother who was also his attorney. As far as the illness of his daughter is concerned that could not be considered to be a sufficient ground for condoning the delay because the medical certificate does not help the petitioners for more than one reason. Firstly it does not bear the date to ascertain that when it was issued and at whose instance. Perusal of certificate indicates that Dr. who issued it, is employee in National Hospital Ex‑Ray Laboratory Dalbandin, whereas his official stamp reveals that he is posted as Medical Officer in Rural Health Unit Sirgasha a place 50 miles away from the residence of the petitioners. This fact was disclosed at the Bar. Lastly the Medical Certificate was not produced before the Majlis‑e‑Shoora as well as before this Court when the petition was submitted for admission, therefore, in my opinion petitioners are debarred to take benefit from the said document.

8. Mr. Khushnood Ahmed, Advocate next argued that notwithstanding his arguments which he advanced hereinabove the order of the trial Court dated 31st August, 1992, is not sustainable being void in the eye of law. Learned counsel forcefully emphasized that the trial Court had jurisdiction to grant the decree but after observing the codal formalities specified under the law, therefore, even if the appeal was barred by time the Appellate Court may have. ignored it solely on the ground that the learned Qazi granted the decree in favour of the respondent after adopting a procedure which is not akin to the principles of civil administration of justice. The learned counsel for the respondent was of the opinion that even if the order was a void order, the petitioners had its knowledge, therefore, they should have challenged the same within prescribed time. To substantiate the stand reference was made to 1982 SCMR 285.

9. In view of above discussion it is concluded that a party who seeks condonation of delay in instituting the proceedings under section 5 of the Limitation Act, is bound to offer plausible explanation constituting sufficient cause in approaching the Court. Explaining the delay of, each day which is sought for to be condoned and for the orders which are termed void in the eye B of law, at least explanation may be offered from the date of knowledge and making an application mentioning certain facts would not be sufficient to attract the provisions of section 5 of the Limitation Act, unless the facts are so convincing that without controverting the same by the other side the Court can be persuaded to accept the same and if the statement of facts is not convincing and merely for the reason that other side had not filed its reply it would not be obligatory upon the Court to condone the delay. I am in respectful agreement with the principles pronounced by Hon'ble Supreme Court in the reports relied upon by the learned counsel for the petitioner but the visible distinction in those cases and in case in hand is apparent. Therefore, with utmost regard I venture to mention that in the instant case the principles laid down therein are not attracted. Now I would proceed to examine whether the order of the learned trial Court can be termed as a judicial order in the eye of law. It is an admitted position that no codal proceedings were observed by the learned Court while passing the decree. So much so statements of the parties were not recorded and it is not understandable that on the basis of which material the learned Court proceeded to grant a decree in favour of the respondent. As far as knowledge of the petitioners regarding a void order is concerned that cannot be denied and in view of the judgment reported in SCMR 1982 page 285, it was mandatory for the petitioners to explain delay of the each day in filing the appeal. But it is also to be borne to mind that this Court while sitting in a revisional jurisdiction under section 115 is always under enormous duty which can also be exercised suo motu. to examine whether the orders/proceedings suffer from material illegalities or irregularities warranting exercise of jurisdiction for correcting errors responsible for causing miscarriage of justice and irrespective of the fact that the petition has no chances to succeed on account of any technical or legal point. Because if the i omissions committed by the Courts below are not corrected in the revisional jurisdiction solely for the reason that it has no substance, the object of conferring revisional jurisdiction on this Court as well as District Judge will be 'C frustrated, therefore, it is held that in the tit cases where injustice appears to have been caused even without considering any technical point the jurisdiction must be exercised in larger interest of justice.

10. Keeping in view these observations a perusal of the decree/order passed by Qazi manifestly makes it clear that the learned Court granted the relief in favour of respondent absolutely without adhering to the principles laid down in the C.P.C., regulating proceedings of the Court. I am constrained to observe that learned trial Court instead , of showing haste in passing the order/decree should have framed the issues and also called upon the parties to produce the evidence and after providing full opportunity of hearing should have decided the matter in either way and I am fully satisfied that the order of the learned Qazi has no legal sanctity and is not sustainable The result of the above discussion is that although petition has not been found maintainable on the ground that the appeal before Majlis‑e‑Shoora was hopelessly barred by time but exercising suo motu jurisdiction and to rectify the errors in the order/proceedings of the Courts below. I am inclined to set aside both the impugned orders passed by the trial Court as well as Appellate Court respectively. Consequently case is remanded to the trial Court with directions to proceed afresh strictly in accordance to law. The parties, however, are left to bear their own cost. AA./439/Q Case remanded.