2016 PLP (C (PLC(CS))

Through present petition, prayer has been made for condonation of seven days' delay in preferring service appeal calling in question order dated 24th of August, 2009 whereby representation of applicant-appellant for grant of proforma promotion as Senior Civil Judge was declined by the competent authority.

2. Reasons for delay in filing the appeal have been set out in paras (3) and (4) of the Civil Miscellaneous, according to which delay was neither intentional nor deliberate. Elaborating the reasons, it was disclosed in para (4) of the petition that learned counsel engaged by the applicant-appellant is a patient of "gout" and during Eid vacation, he suffered from swelling of joints due to which appeal could not be filed within the period of limitation. In para (5) of the petition, it has been asserted that after recovery from illness, appeal was filed by the counsel without wastage of time.

3. Seeking condonation of delay, highlighting the nature of illness, banking upon an affidavit sworn by learned counsel for the applicant-appellant, reiterating the contents of paras (3) to (5) of the petition, it was contended that that there is a sufficient cause for condonation of delay. Further submitted that if delay is not condoned, applicant-appellant shall suffer irreparable loss. To substantiate the contentions, help was sought from the dictum laid down in "Defence Housing Authority Lahore v. Lt. Col. (R) Muhammad Aslam" (2007 YLR 135), "Al-Waqar Corporation v. Rice Export Corporation and another" (2011 MLD 266), "Mrs. Zubaida Begum v. Mrs. S.T. Naqvi" (1986 SCMR 261), "Hassan Abbas v. Ist Additional District and Sessions Judge and 2 others" (2014 YLR 2042) and "Muhammad Malik v. Chairman, Mirpur Development Authority, Mirpur and 9 others" (1997 CLC 480).

4. Controverting the arguments, it was submitted by learned counsel for the respondent that illness highlighted in the petition cannot be recognized as a ground to grant premium. Further contended that each day's delay was to be explained but the application is totally silent in this regard. Argued that in the circumstances, indulgence cannot be shown in favour of applicant-appellant.

5. Provisions of Section 5 of The Limitation Act, 1908 (IX of 1908) (hereinafter called "Act IX of 1908") are applicable to the appeals in view of Section 7 of The Punjab Subordinate Judiciary Service Tribunal Act, 1991 (XII of 1991).

6. The term "sufficient cause" has not been defined in The Act IX of 1908 and each case has to be decided keeping in view its own facts and circumstances. However, the expression under reference suggests a cause beyond control of the party. It rules out inaction, culpable slackness and negligence. Want of due care if appears would be sufficient to non-suit the party seeking indulgence.

7. Dealing with the expression, the Apex Court held in "Ata Ullah Malik v. The Custodian Evacuee Property, West Pakistan etc." (PLD 1964 SC 236) that sufficient cause shall be construed as cause beyond the control of a party. Referring to the provisions of Order IX, Rules 3 and 8 of The Code of Civil Procedure, 1908, it was further held that the courts had been lenient and had been condoning some negligence i.e. negligence to the extent to which it is regarded as human though they never condoned gross negligence. Rule of law enunciated in the Report was endorsed in "Abdul Ghani v. Ghulam Sarwar" (PLD 1977 SC 102). In "Rehmat Bibi etc. v. Ghazanfar Hussain" PLD 1983 SC (AJ&K) 21) while dealing with the expression, the Supreme Court of Azad Jammu and Kashmir held that sufficient cause means a genuine cause which is beyond the control of the party or a cause which is unavoidable despite care and attention. In "Jhanda v. Maqbool Hussain etc." (1981 SCMR 126) and "Sheikh Muhammad Saleem v. Faiz Ahmad" (PLD 2003 Supreme Court 628), it was held that a cause in order to treat it as sufficient cause must rule out element of negligence and carelessness.

8. In order to get benefit of Section 5 of The Act IX of 1908, it is also the duty of the party seeking premium to explain each day's delay after expiry of period of appeal. Reference may be made to "Ata Ullah Malik v. The Custodian Evacuee Property, West Pakistan and Karachi etc." (PLD 1964 Supreme Court 236), "Mst. Sirajun-Munira v. Pakistan through Assistant Deputy Director-General (Admn.), Islamabad" (1998 SCMR 785), "Mian Abdul Rahim Sethi and others v. Federation of Pakistan through Minister of Defence and another" (2000 SCMR 1197), "Messrs Tribal Friends Co. v. Province of Balochistan" (2002 SCMR 1903) and "Sheikh Muhammad Saleem v. Faiz Ahmad" (PLD 2003 Supreme Court 628).

9. Keeping in view the above yardstick, now contentions raised by learned counsel for the parties are to be examined.

10. As referred earlier, it is the case of applicant that learned counsel engaged by him is suffering from "gout" and during Eid vacation, he suffered from swelling of joints and as such, appeal could not be filed within the period of limitation. "Gout" is hereditary meta-bolic disease that is a form of acute arthritis and is marked by inflammation of the joints. In the disease, joints affected may be at any location but gout usually begins in the knee or foot."

11. Though nothing has been placed on record in the form of any proof that counsel for the applicant was suffering from gout but as rightly pointed out by learned counsel for the applicant that he has sworn an affidavit disclosing his disease and in the absence of any counter affidavit, same has to be respected. As no counter affidavit has been filed on behalf of respondent, therefore, no other evidence is required to substantiate the contention of learned counsel for the applicant regarding nature of ailment with which he was suffering. However, the fact by itself would not be sufficient to grant premium to the applicant for two fold reasons. According to para (4) of the application and affidavit, counsel for the applicant suffered swelling of joints during Eid vacation. Contents of the application as well as affidavit are totally silent regarding number of Eid holidays and commencement of same. Perusal of the calendar for the year 2009 suggests that 21st and 22nd of September, 2009 were declared gazetted holidays for Eid-ul-Fitr while appeal was preferred on 2nd of October, 2009 bearing Diary No.24. It is further to be noted that perusal of contents of the memorandum of appeal reveals that appeal was ready for filing prior to Eid-ul-Fitr holidays as is evident from the date of attestation of affidavits appended to substantiate the contents of memorandum of appeal and C.M. No. 1 of 2009. Affidavits were sworn before the Oath Commissioner, Lahore by the appellant on 19th of September, 2009 which was Saturday. Even after excluding Sunday and Eid holidays, there was ample time with the applicant to prefer the appeal in the office but no attempt was made to submit the memorandum of appeal.

12. It is to be noted that for filing of appeal, actual and physical presence of counsel for the applicant was not necessary. Anyone could have filed the appeal in the office. It is not the case of applicant that no such person was available to visit the office of Tribunal for submission of appeal. Affidavit sworn by learned counsel for the applicant as well as contents of the petition are also not suggestive that any attempt was made by learned counsel for the applicant to intimate the compelling circumstances to the applicant for non-filing of the appeal though time was running and ultimately it expired. Similarly, duty was cast upon the applicant to remain in touch with his counsel.

13. In view of the matter, there can be no two opinions that omission for any reason, whatsoever, does not suggest anything except want of due care and attention. As referred earlier, when there is an element of want of care and attention, it will amount to negligence and carelessness ruling out the element of bona fide and due diligence.

14. It is not disputed that date of recovery of learned counsel for the applicant from ailment does not find mentioned either in the application or in the affidavit seeking condonation of delay which omission goes to the root of the petition, sufficient to non-suit the applicant because date of recovery from ailment of learned counsel for the applicant is an important factor which has to be taken into consideration in order to grant premium for condonation of delay. Contents of para (5) of the application as well as affidavit that appeal was promptly filed without wastage of time after recovery by itself would not be sufficient to prove the case of applicant. Date of recovery from illness is also an important factor in order to determine each day's delay and in view of omission to disclose the same, the applicant failed to explain each day's delay which was necessary in order to get premium under Section 5 of The Act IX of 1908. In similar circumstances, due to omission on the part of a public servant to disclose the date of recovery from ailment, Hon'ble Supreme Court of Pakistan did not grant premium to the applicants seeking condonation of delay in the case of "Mian Abdul Rahim Sethi and others v. Federation of Pakistan through Ministry of Defence and another" (2000 PLC (C.S.) 934) (2000 SCMR 1197).

15. As discussed earlier, in order to get benefit of provision of law under discussion, it is not only essential to prove that the applicant or any person acting on his behalf was not negligent but also after expiry of period of filing of appeal, it was the duty of applicant to explain each day's delay. In view of the discussion, the applicant failed to prove that non-filing of appeal within the statutory period was result of an act or omission beyond the control of applicant or the person acting on his behalf.

16. We have gone through the rule of law cited at bar by learned counsel for the applicant but the same, with great respect, would not advance the plea of applicant due to distinguishable facts. In the case of "Muhammad Malik v. Chairman, Mirpur Development Authority, Mirpur and 9 others" (1997 CLC 480), undeniably affidavit of counsel for the appellant explaining delay in filing the appeal in the absence of any contrary material to controvert the same was acted upon granting condonation of delay but the settled proposition of law cannot be questioned that each case has to be decided keeping in view its own facts and circumstances. In the Report under reference, counsel for the appellant highlighted the reasons for delay in filing of appeal suggesting that there was a mistake of office in issuing wrong copy of order. Perusal of para (6) of the facts of the Report under reference clearly suggests distinguishable facts. In view of the matter, the Rule of law would not advance the plea of the applicant. In the case of "Hassan Abbas v. 1st Additional District and Sessions Judge and 2 others" (2014 YLR 2042), condonation of delay was allowed due to professional misconduct of the counsel. Undeniably facts are different. Similarly, in "Defence Housing Authority Lahore v. Lt. Col. (R) Muhammad Aslam" (2007 YLR 135), reasons assigned was misplacement of bundle of files by the clerk of counsel which resulted in unintentional delay of only one day. Contents of the application seeking condonation of delay were supported by affidavits sworn not only by the counsel representing the appellant but also by the concerned clerk and as such with this background, premium was granted. In the case of "Al-Waqar Corporation" (2011 MLD 266), delay was sought to be condoned with specific assertion in the application for restoration that plaintiff got knowledge of dismissal of the suit on 25th of January, 2010 and within next two days, he filed application on 27th of January, 2010. Keeping in view the facts and circumstances of the case, learned Karachi High Court observed that said important aspect relating to knowledge of dismissal of the suit which was not controverted by filing counter affidavit was not taken into consideration. In the case of "Mrs. Zubaida Begum v. Mrs. S.T. Naqvi" (1986 SCMR 261), due weight was given to the affidavit sworn by counsel for the appellant and in view of the discussion made above, there can be no two opinions that we have also shown respect and regard to the affidavit sworn by learned counsel for the applicant but nevertheless, in view of the discussion made in the preceding paragraphs, contents of the petition as well as affidavit taken as gospel truth by itself would not be sufficient to attract provisions of Section 5 of The Act IX of 1908 in view of failure of the applicant to explain each day's delay in filing the appeal after expiry of period of appeal.

17. We are also conscious and as argued by learned counsel for the applicant that valuable rights of the applicant are involved in the appeal who has questioned the legality of order passed by the competent authority seeking proforma promotion but nevertheless, the argument by itself would not be sufficient to show leniency in favour of applicant because involvement of valuable rights by itself would not be sufficient to condone the delay. Reliance is placed upon "Water and Power Development Authority v. Aurangzeb" (1988 SCMR 1354), "Sheikh Muhammad Saleem v. Faiz Ahmad" (PLD 2003 Supreme Court 628) and "Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen" (2006 SCMR 631).

18. We are also not mindful that matters are required to be decided on merits and technicalities should not hamper the justice. However, question of limitation is not a mere technicality and as such, same cannot be ignored. Reliance is placed upon Muhammad Islam v. Inspector-General of Police, Islamabad and others (2011 SCMR 8).

19. Pursuant to above discussion, the applicant failed to prove sufficient cause seeking condonation of delay in filing of appeal and as such, application for condonation of delay is hereby dismissed. Service Appeal No. 14 of 2009

20. In view of the dismissal of C.M. No.02 of 2009 seeking condonation of delay, the appeal filed by the appellant is dismissed being barred by time. ZC/11/PST Appeal dismissed.