1986 PLP 768 (CLC)

Jhamat Jethanand for Respondents. Date of hearing: 16th April, 1985. The applicants preferred first appeal against the judgment and decree, dated 25‑5‑1982, passed by the Civil Judge, Tando Allahyar, in Suit No. 61 of 1982, whereby he dismissed the suit, in the Court of IIIrd Additional District Judge, Hyderabad, alongwith an application under section 5 of the Limitation Act seeking condonation of delay of one day in filing the appeal.

2. The ground for condonation of the delay, as mentioned in the affidavit filed in support of the application under section 5 of the Limitation Act, was that Ali Muhammad Shah son of Hadi Shah, who was the husband of a cousin of the applicants had suddenly died on 30‑9‑1982, therefore, all the applicants had to participate in his funeral and 'soem' ceremonies.

3. To controvert these allegations one of the respondents Muhammad Ali Shah filed his counter‑affidavit, wherein he stated that no person by the name of Ali Muhammad Shah son of Hadi Shah died on 30‑9‑1982, or on any other date in the locality. He further stated that one Alam Shah son of Haji Shah who was distantly related to applicants died in the month of June, 1982.

4. On consideration of the affidavit and counter‑affidavit the learned IIIrd Additional District Judge, Hyderabad, Mr. Kadir Bux Umarani, dismissed the application holding that no sufficient cause had been shown for condonation of the delay and consequently dismissed the appeal as time‑barred by the judgment, dated 8‑5‑1983.

5. Aggrieved by this judgment the applicants have as already stated, filed this revision application under section 115, C.P.C.

6. I have heard Mr. Dhani Bux learned counsel for the applicants. The learned counsel submitted that the impugned judgment suffers from misconception of law as the learned Additional District Judge, Hyderabad sought help from the provisions of section 12 of the Limitation Act in construing sufficient cause. In my view the stand of the learned counsel is not correct. It was claimed by the learned counsel for the applicants before the learned Additional District Judge, Hyderabad, that the appeal was barred only by two days as according to him the certified copies of the judgment and decree of the trial Court were delivered to the applicants on 31‑8‑1982, and the appeal was presented on 3‑10‑1983, and the learned Additional District Judge, Hyderabad, has proceeded on the assumption that the appeal was barred only by two days as claimed by the applicants. There is no doubt that the learned Additional District Judge, Hyderabad, has mentioned that the certified copies of the judgment and decree were prepared on 26‑8‑1982, and were delivered or. 31‑8‑tq82, and that there was no mention in the affidavit filed by one of the applicants namely, Allah Bachayo that how he got the notice of preparation of the copies or knowledge of preparation of the copies. Thus the application was barred by 5 days but the period of 5 days was not made the basis of the order.

7. The learned Additional District Judge, Hyderabad, however, found that no sufficient cause was shown and the allegations made by the applicants that they participated in the funeral and 'Soem' ceremonies of Ali Muhammad Shah were not proved by them by producing any certificate of death of Ali Muhammad Shah who according to them had died on 30‑9‑1982, nor had they filed any affidavit of 'Nek Mard' or a Member of the Union Council of their village in support of their claim regarding death of Ali Muhammad Shah. I am, therefore, of the opinion that the finding of the learned Additional District Judge, Hyderabad that the applicants have not shown sufficient cause is unexceptionable. In my view firstly, the death of Ali Muhammad Shah was not proved to the satisfaction of the Court as in the counter‑affidavit it was disputed that no person by the name of Ali Muhammad Shah had died on 30‑9‑1982. It could have been proved by producing some evidence to that effect. Secondly, the participation in the funeral by the applicants could not prevent their counsel to file the appeal within time, and it is not their case that they had not engaged the counsel earlier and he could not file the appeal. It is a fact, as admitted by Mr. Dhani Bux that he had filed the appeal before the learned Additional District Judge, Hyderabad, and represented the applicants before him. Thirdly, even if there was any cause in not filing the appeal on 30‑9‑1982 being the last date of limitation, it should have been presented at least on 1‑10‑1982, but it was also not present on that date for which the reason given was that the applicants were participating in 'Soem' ceremony. This could not be held to be sufficient cause for, as laid down by various superior Courts, sufficient cause is one that is beyond the control of a person or that is unavoidable despite care and attention.

8. Accordingly, I find no merits in this revision application and dismiss it but leave the parties to bear their own costs in the circumstances of this case. A . A . Revision dismissed.