P L D 1952 Lahore 156 (PLP)

SHABIR AHMAD, J.‑Muhammad Ghazanfar married Mst. Noor Basar some time in the year 1.946 and divorced her on the 23rd of April 1947. On the 1st June, 1947, Mst. Noor Basar instituted is suit for recovery of Rs. 4612, which she claimed was due to her as dower, the price of her ornaments which her husband had deprived her of and maintenance and the suit was decreed in full by Mr. Muhammad Anwar, Sub -ordinate Judge 1st Class Lahore. An appeal instituted by Muhammad Ghazanfar in the Court of the District Judge, Lahore, against the decree of Mr. Muhammad Anwar, having been dismissed by the Additional District Judge, Lahore, he presented on 31st July, 1951, the present application under Order 44, Rule I of the Code of Civil Procedure to be allowed to appeal as a pauper. Learned counsel for the respondent raised a preliminary objection that the application vast time‑barred. The decree sought to be appealed against was passed on the 4th of June 1951. An application for the copy of the judgment of the Additional District judge was made on the 12th of June 1951 and the copy was delivered on the 19th of June 1951. The learned counsel for the applicant admitted that the application was presented 19 days beyond the period prescribed by law, but stated that as there was sufficient cause for not putting in the application in time the delay should be condoned. An application for extending the period of limitation under section 5 of the Limitation Act was presented along with the application under Order 44, Rule 1, Civil Procedure Code. In the affidavit put in to support the application under section 5 of the Limitation Act, it was stated that the petitioner fell ill after be had put in the application for obtaining a copy of the judgment of the Additional District Judge and that though he improved a little a week later, he fell ill again on the 20th of June 1951, and did not recover till the 30th of July 1951. The learned counsel for the respondent urged that even if there were sufficient cause for not presen ting the application in time the Court could not act under section 5 of the Limitation Act, because that section, according to the learned counsel, does not apply to an application under Order 44, Rule 1, Civil Procedure Code. Before considering the question whether or not there was sufficient cause for not presenting the application within the period prescribed by law, I would dispose of the preliminary objection raised by the learned counsel for the respondent. The relevant part of section 5 of the Limitation Act reads as follows: 5.‑Any appeal or application for a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed, therefore when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period." The learned counsel for the respondent contended that the words "application for leave to appeal" occurring in section 5 of the Limitation Act did not include an applica tion under Order 44, Rule 1 of the Civil Procedure Code and in support of this contention cited Ram Pheron v. Sri Ram alias Sri Nath (I L R 15 Luck. 390) Sabuddin v. Pundlik and others (A I R 1927 Nag. 197), Parbati v. Bhola (I L R 12 All. 79) and Sarat Chandra Dev v. Brojeshwari Dassi (I L R 30 Cal. 790). If this contention is correct the application will be barred by more than 19 days by which the learned counsel for the applicant admitted that it was, because, as at present advised, I see no justification for putting on the words:- "application for leave to appeal" occurring in subsection (2) of section 12 of the Limitation Act an interpretation different to the interpretation put on the same words when occurring in section 5 of the same Act. All the cases cited by him support the contention of the learned counsel for the respon dent, but the last‑mentioned two cases have no relevancy because they were decisions under the Indian Limitation Act, 1877, which was so worded as not to be applicable to applica tions for leave to appeal. Of the other two cases, I L R 15 Luck. 390 is a decision by a Division Bench and A I R 1927 Nag. 196 that of a learned Single Judge. A I R 1927 Nag. 197 followed I L R 30 Cal. 790, and it appears to have been entirely overlooked that the Calcutta case was decided in 1903 when, as pointed out by me already, the Indian Limitation Act, 1877, section 5 of which applied only to appeals and applications for review of judgments but not to applications for leave to appeal, was in force. No reasons were given by the learned Judge, who decided the Nagpur case, for the view taken by him and he merely followed 30 Cal. 790, but it appears to me that if his attention had been drawn to the difference between the language of section 5 of the Limitation Act of 1877 and that of section 5 of the Limitation Act of 1908, he would most probably not have arrived at the conclusion he arrived at. The reason given for the decision in I L R 15 Luck. 390 was that section 5, though applicable to applications for leave to appeal, was not appli cable to an application for leave to appeal as a pauper unless it were made applicable to such applications. It appears that the learned judges thought that an application to appeal as a pauper is not an application for leave to appeal and was, therefore, governed by the latter part of section 5 of the Limitation Act. Learned counsel for the petitioner cited Ram Charan v. Bansidhar (A I R 1928 All. 499) and Mst. Ram Dulari v. Mst. Alian Bibi (I L R 17 Luck. 628) in both of which it has been laid down that section 5 of the Limitation Act applies to applications for leave to appeal as pauper. The Lucknow case mentioned above is a decision by a learned Single Judge of the Oudh Chief Court and it appears that the Division Bench decision of that Court in I L R 15 Luck. 390 was not brought to the learned Judge's notice, otherwise he would have had either to refer the case to a larger Bench or follow the decision of the Division Bench of his own Court. In I L R 17 Luck. 628, no reasons were given for the conclusion arrived at but the decision of the Allahabad High Court in A I R 1928 All. 499 was relied upon. In A I R 1928 All. 499, it was clearly held that section 5 of the Limitation Act applied to applica tions under Order 44, Rule 1 of the Code of Civil Procedure. In my opinion the language of section 5 of the Limitation Act shows clearly that the intention of the Legislature was that applications of the present kind could be admitted after the period of limitation had expired if the conditions required by section 5 of the Limitation Act were fulfilled. Section 5 of the Limitation Act was applied by all the High Courts in British India before its partition to applications under Order 45 of the Code of Civil Procedure for leave to appeal to the Judicial Committee of the Privy Council, and I do not see why it should not apply to applications under Order 44, Rule 1 oft the Code of Civil Procedure. If the matter were to be decided) on the language of the provisions of the Code of Civil Procedure, an application under Order 44, Rule 1 of that Code would fall within the ambit of section 5 of the Limitation Act, but an application under Order 45, Civil Procedure Code, would not. The reason why this would be so is that Order 45 of the Code of Civil Procedure does not mention that the application dealt with therein is to obtain leave to appeal as the provisions of that order deal with grant of a certificate by the High Court to the effect that the case was a fit one for appeal to the higher Court. On the other hand, the relevant part of Order 44, Rule 1, Civil Procedure Code, reads as follows:‑ "Any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as a pauper, subject, in all matters, including the presentation of such application, to the provisions relating to suits by paupers, in so far as those provisions are applicable." The rule makes it clear that the application is to obtain leave to appeal and I am of the opinion that the mere fact that the permission sought is to appeal as a pauper cannot justify the application being treated as not being one for leave to appeal. Considering the matter in the light of what I have said above, I have arrived at the conclusion that section 5 of the Limitation Act was intended to apply to those applications which in the First Schedule to that Act were shown to be applications for leave to appeal. Looked at like that the section will be applicable as much to applications under Order 45 of the Code of Civil Procedure as to those under Order 44 of that Code. The period of limitation for applica tions is fixed by the Third Division of the First Schedule to the Limitation Act which consists of Articles 158 to

183. Applications falling under Order 44 of the Civil Procedure Code are dealt with by Article 170 of the Limitation Act, the relevant part of which reads as follows :‑ "170.‑For leave to appeal as a pauper." Applications under Order 45 of the Code of Civil Pro cedure (which, after the passing of the Privy Council (Abolition of Jurisdiction) Act, 1950, by the Constituent Assembly of Pakistan in April 1950 applies to appeals to Federal Court of Pakistan instead of those to the King in Council) are governed by Article 179 of the First Schedule to the Limitation Act, 1908, the relevant part of which, before the substitution of the words "Federal Court " in place of the words "His Majesty in Council " by the above‑mentioned Act of the Pakistan Constituent Assembly, read as follows:‑ "179.‑By a person desiring to appeal under the same Code (Code of Civil Procedure) to His Majesty in Council for leave to appeal." Both Articles 170 and 179 speak of applications for leave to appeal and I have no doubt in my mind that when mention ing applications for leave to appeal in section 5 of the Limita tion Act the Legislature had in view the language of Articles 170 and 179 of that Act and not of any other enactment. But even if at the time of the enactment of that section the Legis lature had in view the language of the Code of Civil Procedure their intention may been have not to make applica tions mentioned in Article 179 subject to the section, but could not have been to exclude applications under Order 44, Rule 1, Civil Procedure Code, from the operation of that section. For the reasons that I have stated above, I have arrived at the conclusion that section 5 of the Limitation Act is appli cable to applications under Order 44, Rule 1 of the Code of Civil Procedure and that the cases reported in I L R 15 Luck. 390 and A I R 1927 Nag. 197 were not correctly decided. The preliminary objection raised by the learned counsel for the respondent is overruled. The question that now arises is whether or not it has been established that the petitioner had sufficient cause for not making the application within the period prescribed by Article 170 of the Limitation Act. The affidavit put in support of the application under section 5 of 'the Limitation Act stated that the applicant had fallen ill after he obtained a copy of the judgment of the Additional District Judge and dial not recover till the 30th of July 1951. With respect to his long illness, there is only the word of the petitioner. He could have produced other evidence in support of his assertion, but has not cared to do so. It is well‑settled that if the prescribed period of limitation has expired, the person desiring the Court to condone the delay must explain every day of the delay. The statement of the petitioner about his illness contained in his affidavit does not impress me and I would, therefore, hold that there was no sufficient cause for the petitioner not presenting the application within the prescribed period. The application under Order 44, Rule 1 of the Code of Civil Procedure is, therefore, dismissed with costs. The learned counsel for the petitioner requested that in case his client was not allowed to appeal as a pauper he should be given time to put in the requisite Court‑fee and the learned counsel for the respondent stated that he had no objection to that being done. The petitioner is allowed time till the 4th of February 1952 to put in, the requisite Court-fee. M. KHURSHID ZAMAN, J.‑I agree. K. M. A./A. H. Petition rejected.