1989 PLP 993 (MLD)

Sh. Abdur Rashid for Appellant. Sh. Ziaullah for Respondents. Date of hearing: 24th October, 1979. One Murad Ali alienated his lard in‑ favour of Muhammad Shat, present appellant, on 19th February, 1965. The respondents his heirs, filed a suit on 13th July, 1905, challenging the alienation on the ground that the suit land being ancestral property and the alienation having been made without legal necessity would be void and ineffective on the death of their father, who was governed by custom. The trial Court decreed the suit on 1st June, 1966, in favour of plaintiff No.1 holding that the impugned sale shall not affect his reversionary rights in the property in dispute after the demise of his father. The suit qua plaintiffs No.2 and 3 was dismissed, The appeal filed by Muhammad Sitar, present appellant was dismissed by the Additional District Judge, Gujrat on 7th October, 1966. Hence this second appeal by him which was filed in this Court on 27th November, 1967 and returned to him as barred by 61 days. It was refiled on 27th December, 1967, with an application under section 5 of the Limitation Act for condonation of delay.

2. Learned counsel for the respondents raised a preliminary objection that the appeal was barred by time and no sufficient cause has been shown for condonation of delay. The reason given by the appellant was that the Copying Agency sent the copies by registered post, which were received by him on 9th November, 1967, and the period of 397 days was thus spent in obtaining the requisite certified copies. Computing this period, it was argued, the appeal is within time. There is hardly any force in the submission made because under Order XLI rule 1 C.P.C. it is imperative for the appellant to enclose with the memorandum of appeal a copy of the decree appealed from and the judgment on which it is funded, unless the appellate Court dispenses with their production. In the instant case when the appeal was filed there was no such application for condonation of delay. It was for the first time on 7th December, 1967, when the appeal was re‑tiled that an application under section 5 of the Limitation Act was submitted after the office had pointed out on 27th November, 1967, that the appeal was barred by 61 days. There is hardly any explanation for the lapse on the part of the appellant. So far as the submission of the appellant that he had been provided with the copy after a year and therefore he was not in a position to file the appeal is concerned, there is hardly any substance in it, for according to Article 156 of the Limitation Act the period of limitation for second appeal is ninety days. The judgment and decree by the Additional District Judge was passed on 7th October, 1966. Application for copies of the same was made on 10th October, 1966 which were ready for delivery on 1st July, 1967. Copy of the trial Court's judgment was applied for on 10th November, 1967 and was prepared on 16th November, 1967. Obviously application for supply of the judgment of the trial Court was made almost a year after the judgment by the Additional District Judge was announced. As the appeal was incompetent without the judgment and decree of the trial Judge the appeal is hopelessly barred by time. There is nothing on the record to show that the appellant had asked for the supply of copies by registered post.

3. Sh. Abdur Rashid learned counsel for the appellant cited Ghulam Singh v. Sohan Singh and others A I R 1922 Lahore 219, Muhammad Afzal Khan Lodhi v. Islamic Republic of Pakistan P 1, D 1968 Lah. 1205 and West Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi (1973 SCMR 555 in support of his prayer for condonation of delay. None of the case‑law cited is of any help to him. Sheikh Ziaullah, learned counsel for the respondents, relied on Evacuee Trust Board, Government of Pakistan, Lahore and another v. Muslim High School PLD 1973 Karachi 618 and Fateh Muhammad and others v. Malik Qadir Bakhsh 1975 S C M R 157 in support of his submission that the appellant has not merely to explain the delay beyond period of limitation but he must show that his conduct throughout has been vigilant. It was held by the learned Judges of the Supreme Court in Fateh Muhammad and others v. Malik Qadir Bakhsh 1975 S C M R 157 that "the time requisite for obtaining copy of order within the meaning of section 72 of the Limitation Act 1908 means only the interval between the date of application for supply of copy and the date when it is ready for delivery. Even during, this interval, clue diligence on the part of the litigant is required by law, and no delay, unless such as was caused by circumstances over which he had no control and which could not by due diligence be avoided, can form part of time `requisite' for obtaining the copy. The time between the date on which the copy is ready for delivery and the date on which the applicant chooses to take delivery thereof is not a portion of the time `requisite' for obtaining a copy."

4. For the foregoing reasons no sufficient cause has been shown for of delay m filing the appeal which is dismissed as hopelessly barred by time. Parties shall bear their own costs. M Y.H/M‑1119/L Appeal dismissed.