P L D 2026 Peshawar 125 (PLP)

SYED MUDASSER AMEER, J.

Through this petition under Section 115 of the Code of Civil Procedure, 1908 (Code), the petitioners PESCO through its Chief Executive, Peshawar and others have called in question the validity of judgment and order dated 26.4.2024 of learned Additional District Judge-X, Peshawar, whereby, the appeal filed by the respondent was allowed and her suit was restored vide order dated 03.04.2023 of learned Civil Judge-VII, Peshawar was set aside.

2. Concise facts, necessary for the adjudication of this petition are that the respondent/plaintiff filed a suit against the petitioners/defendants for declaration to the effect that Electricity Meter No. SP-200591 was installed at the house of plaintiff and without default or outstanding amount the defendant disconnected the electric supply and took the electricity meter along with them, which is illegal and ineffective upon the rights of plaintiff, that at the house of plaintiff initially single phase meter was installed which was replaced by the defendants with 3-phase meter without any lawful authority and consent of plaintiff at Electric Poll and started electricity bills with huge amount. On application of the plaintiff, the 3-phase meter was replaced with single phase (SP-200591), but still the electricity bills of 3-phase meter were delivered to the plaintiff, which are also illegal and ineffective upon right of plaintiff. Further mandatory and permanent injunction against the defendants was also sought.

3. The suit was dismissed due to non-prosecution vide order dated 08.09.2021. The respondent/plaintiff filed an application for restoration of the suit, which was dismissed by the learned Trial Court vide order dated 03.04.2023. Being aggrieved the said order, the respondent/plaintiff filed a Civil Appeal bearing No. 30/13 of 2023,: which as accepted vide order dated. 26.04.2024 and the suit of the plaintiff was restored on its old number and remanded the suit with directions to the learned Trial Court to provide opportunity to both the parties to adduce their respective evidence and decide the case afresh in light of evidence of the parties. Aggrieved of this order, the present petitioners filed the instant revision petition.

4. I have minutely examined the entire record in the light of arguments advanced before me by learned counsel for the parties.

5. Perusal of the record reveals that it is not disputed that application for condonation of delay was filed along with application for restoration and that ground of plaintiff's ailment from Cancer was mentioned as cause. The learned Appellate Court has considered this ground 'sufficient cause' for explanation of the 22 days delay occasioned in filing the application for restoration. Section 5 of the Limitation Act, 1908 being applicable, vests the Court with vast discretion to condone-delay in case where the Court is satisfied that the application seeking condonation of delay discloses 'sufficient cause' by accounting for each day's delay. In the case of "Muhammad Anwar and others v. Essa and others" reported at PLD 2022 SC 716, the Hon'ble Supreme Court has held that as follows:- "10. ....the parameters of discretion in condoning the delay in filing an application,' appeal, review or revision etc. are totally different than the powers vested in Court to condone the delay occasioned in filing the suit. To cases falling in the first category; Section 5 of the Limitation Act, 1908 (hereinafter referred to as the "Act") is applicable which vests the Court with vast discretion of condoning delay in cases where the Court is satisfied that the application seeking condonation of delay discloses "sufficient cause" by accounting for each day of delay occasioned in filing the application, appeal, review, or revision. On the other hand, the Courts on the original side while trying a suit as required under section 3 of the Act are bound to dismiss the suit if it is found to be barred by time notwithstanding that the limitation has not been set up as defense. The Court has no power to condone the delay in filing the suit but could exclude time the concession whereof is provided in sections 4 to 25 of the Act only in cases where the plaintiff has set up in the plaint one of such grounds available in the Act such as disability, minority, insanity, proceedings bona fide before a Court without jurisdiction etc. and not otherwise. In fact, the language used in Section 3 of the Act is mandatory in nature and imposes a duty upon the Court to dismiss the suit instituted after the expiry of period provided unless the plaintiff seeks exclusion of time by pleading in the plaint one of the grounds provided in Sections 4 to 25 of the Act. Reference can be made to the cases of Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited (PLD 2012 SC 247) and Hakim Muhammad Buta and another v. Habib Ahmad and others (PLD 1985 SC 153)."

6. The instant case falls in the category of cases where Section 5 of the Limitation Act is applicable and the Court .While taking all the relevant facts and circumstances into account reached the conclusion that the delay of 22 days in filing application for restoration of suit was condonable as the plaintiff was prevented from approaching the Court within time due to severe illness from Cancer. This, the Court was satisfied, constituted "sufficient cause" in the given circumstances.

7. It is also settled that once discretion is exercised by the Court qua condonation of delay, the High Court or, as the case may be, the Supreme Court would interfere in very rare cases and in exceptional circumstances where patent illegality or material irregularity is evident. This principle has been provided by the apex Court in the case of "Muhammad Mukhtar v. Medical Superintendent, Services Hospital, Lahore and another" reported at 2006 SCMR 559, the Hon'ble Supreme Court has held that as follows:- "5......It is well-settled by now that sufficiency of cause for condonation of delay being question of fact squarely falls within the jurisdictional domain of Tribunal and once B, a discretion condoning the delay was exercised it cannot be reversed without any lawful justification which is lacking in this case. In this regard we are fortified by the dictum laid down in the following authorities:-- Ali Hassan Rizvi v. Islamic Republic of Pakistan 1986 SCMR 1086; Muhammad Azhar Khan v. Service Tribunal Islamabad 1976 SCMR 262; Yousaf Hussain Siddiqi v. Additional Settlement and Rehabilitation Commissioner 1976 SCMR 268; Zahida v. Deputy Director 1990 SCMR 1504; WAPDA v. Abdul Rashid Dar 1990 SCMR 1513 and Sher Bahadur v. Government of N.-W.F.P. 1990 SCMR 1519."

8. The same principle was reiterated by the apex court in the case of "National Bank of Pakistan and others v. Shamoon Khan and others" reported at 2010 SCMR 1173, the Hon'ble Supreme Court has held that as follows:- "

5. A careful perusal of the operative portion of the judgment impugned as reproduced hereinabove would indicate that the question of limitation has been dilated upon and decided. It is well established by now that sufficiency of cause of condonation of delay being question of fact is within the exclusive jurisdiction of Tribunal Ali Hasan Rizvi v. Islamic Republic of Pakistan 1986 SCMR 1086, Hussain Bibi v. Mubarak Hussain 1976 SCMR 262, Yousaf Hussain Siddiqui v. Additional Settlement and Rehabilitation Commissioner, Peshawar and 5 others 1976 SCMR

268. Even otherwise once the discretion is exercised qua the question of limitation by the learned Service Tribunal it is not usually interfered with by this Court. In this regard reference can be made to cases titled WAPDA v. Abdur Rashid Dar 1990 SCMR 1513, Sher Bahadur v. Government of N.-W.F.P. 1990 SCMR 1519 and Zahida v. Deputy Director 1990 SCMR 1504."

9. In view of above discussion, no jurisdictional defect or illegality in the exercise of discretion by the learned Appellate Court has been pointed out. Therefore, the instant Revision Petition being bereft of merit is dismissed with listed CMs. No order as to costs. MQ/55/P Revision dismissed.