2016 PLP 2786 (YLR)

SHAHNAWAZ TARIQ, J.

Through captioned Civil Misc. Appeal, appellant has impugned the order dated 17.12.2013, passed by the Court of learned II-Additional Sessions Judge, Ghotki, in Civil Appeal No.26 of 2012, whereby application under Order XLI read with section 151, C.P.C. filed by the appellant seeking restoration of said civil appeal, was dismissed.

2. Learned counsel for appellant contended that the impugned order passed by the appellate Court is arbitrary, cursory, coram non judice and passed without application of judicial mind; that counsel for appellant filed statement on 17.12.2013 before the learned appellate Court but without considering the relevant circumstances of the case, application filed by appellant, was declined; that appellate Court had not looked into the case diary and dismissal of appeal on 12.02.2013 in absence of appellant and his counsel was without jurisdiction; that impugned order passed by the appellate Court is liable to be set aside.

3. While controverting the above submissions, learned counsel for respondents contended that learned trial Court has passed a proper order, and appellant has been malafidely agitating the plea that main appeal was dismissed for non-prosecution, while the same was dismissed on merits. Learned counsel for the respondent pointed out that instant civil miscellaneous appeal has been filed with the delay of 10 days for which no plausible explanation has been furnished by the appellant nor any application for condonation of delay has been filed till date, hence instant appeal is not maintainable on this score.

4. Perusal of the material available on the record and consideration of arguments emanates that appellant filed F.C. Suit No.6 of 2007 (old FC Suit No.09 of 1999), Re: Gopimal v. Haji Khan Muhammad through his legal heir, which was dismissed by the Court of Senior Civil Judge, Ubauro vide judgment and decree dated 24.04.2007. Appellant impugned said judgment and decree by preferring Civil Appeal No.26 of 2007 before the Court of learned District Judge Ghotki, which was transferred to the Court of learned II-Additional District Judge, Ghotki for further adjudication. Subsequently, said Civil Appeal was dismissed by the appellate Court vide order dated 14.03.2013. Appellant moved application under Order XLI, Rule 19, C.P.C. read with section 151, C.P.C. for recalling of order dated 14.03.2013. After hearing the parties, learned appellate Court dismissed said application vide order dated 17.12.2013. Appellant agitated impugned order through instant civil miscellaneous appeal under Order XLIII Rule 1(t)(i), C.P.C. on 27.01.2014. On presentation of memo of instant appeal, office of this Court raised objection regarding the maintainability of appeal on the account of time and learned counsel for appellant endorsed his reply on the memo of appeal that instant appeal is within time. Consequently, instant appeal was placed before the Court and notice was issued to the respondents.

5. On the query regarding the delay in filing of instant appeal, learned counsel for the appellant after going through the material available on the file, seeks permission to file application for condonation of delay, however, he has no explanation for non-filing of such application for condonation of the delay of 10 days. It is incumbent upon the parties to remain vigilant and pursue their cause properly and Court could not allow the further time to the appellant to file any application for condonation of delay after 24 months to fill the lacuna committed by his negligent demeanor and lack of proper persuasion, particularly when office had raised such objection regarding the delay caused in filing of appeal instantly. Appellant having knowledge of such delay remained silent for 2 years without any justification, could not be permitted to seek such condonation of deliberate delay with the indulgence of the Court. It is well settled that parties are bound to explain the delay of each day adequately which creates a valuable right in favour of the opposite party. For the foregoing reasons, instant civil miscellaneous appeal stands dismissed being barred by time, along with listed application. ZC/G-18/Sindh Appeal dismissed.