2014 PLP 128 (YLR)

ZAFAR AHMED RAJPUT, J.

This civil revision under section 115, C.P.C. is directed against the order dated 10-3-2012 passed by the learned Additional District Judge, Kandiaro, District Naushehro Feroze, whereby the application under section 5 of the Limitation Act, 1908 in Civil Appeal No.113 of 2005, filed by the applicant against the judgment and decree dated 30-4-2005 passed by the learned 1st Civil Judge, Kandiaro, District Naushehro Feroze in IIIrd Class Civil Suit No.95 of 2000 (Re: Mehar and others v. Habibullah), was rejected and in consequence thereof the learned appellate Court holding the said civil appeal as time barred, dismissed the same.

2. Since the civil appeal was dismissed solely on the point of limitation, I do not deem it necessary to reproduce the facts of the case at length, in short I would like to mention here that the question of title was involved between the parties in the Civil Suit No.95 of 2000 in respect of agricultural land admeasuring 19-15 acres situated in Deh Mad Ibyani, Taluka Kandiaro, District Naushehro Feroze and the prayer made by the respondents/plaintiffs in the said suit was as under:-- (a) Honourable Court may be pleased to declare that the plaintiffs are lawful owners of the suit-land and that the defendant has got no right, title and interest over the suit-land. (b) A permanent injunction be granted in favour of plaintiff restraining the defendant not to dispossess the plaintiffs from the suit land illegally and forcibly, directly and indirectly, either by himself or through his men, agents, attorneys, etc. in any manner whatsoever. (c) Costs of the suit be borne by the defendant. (d) Any other relief which this honourable Court deems fit and proper be awarded to plaintiff.

3. The applicant/defendant resisted the suit and filed his written statement wherein he denied the claim of the plaintiffs, whereupon issues were framed and the evidence was recorded. On appraisal of evidence on record, the suit was decreed by the learned trial Court vide judgment and decree dated 30-4-2005. The applicant/defendant applied for the certified copies of the judgment and decree on 2-5-2005 and paid estimated costs on the same day. The copies were ready on 2-5-2005 but the applicant/defendant supplied the stamps on 21-07-2005 (after 78 days) and on the same day i.e. 21-7-2005 the certified true copies of judgment and decree were supplied to him.

4. The applicant/defendant presented his appeal under section 96 C.P.C. along with application under section 5 of the Limitation Act, 1908 against the said judgment and decree in the Court of District Judge, Naushehro Feroze on 24-8-2007. The learned District Judge, Naushehro Feroze marked the civil appeal to learned Additional District Judge, Kandiaro who after hearing the parties, held that the appeal was miserably time-barred and the explanation offered for delay by the applicant/defendant, was not accepted and the application under section 5 of the Limitation Act, 1908 for condoning the delay, was rejected and the civil appeal was dismissed.

5. I have heard Mr. Iftikhar Ali Arain Advocate, the learned counsel for the applicant and perused the case file also.

6. Mr. lftikhar Ali Arain Advocate has argued that the learned appellate Court had wrongly dismissed the appeal with the observations that the appeal was time-barred; that there was only delay of 4 days for that the counsel for the applicant also filed an application under section 5 of the Limitation Act, 1908 with a request that due to miscalculation, the appeal was filed with delay of 4 days but the learned appellate Court did not consider the application of the applicant and the same was rejected and in consequences thereof the appeal was also dismissed on the ground of barred by limitation. He has further argued that the learned appellate Court had not considered the delay in preparing the judgment and decree because after preparing the certified true copies and supplying of stamps, the applicant immediately obtained the copies of judgment and decree and filed the civil appeal along with application under section 5 of the Limitation Act, 1908. In support of his contention learned counsel has relied on the case of Taza Gul and others v. Haji Fazal Subhan (2006 SCMR 504) and Zulifquar and others v. Shahadat Khan (PLD 2007 SC 582).

7. It appears from the perusal of the case file that the learned Court of Civil Judge, Kandiaro passed the judgment and decree on 30-4-2005.The applicant applied for the certified true copy of the same on 2-5-2005, fee was estimated, deposited and the copies were made ready on 2-5-2005, but he supplied the stamp on 21-7-2005, after 78 days/and when he supplied the stamps, the copies were delivered to him. It will be pertinent to mention here that as per sub-rule (2) of Rule 324, of the Sindh Civil Courts Rules, the applicant should have supplied the stamps within 7 days. The text of Rule 324 ibid is reproduced below:-- "324. (1) No copy or translation shall be commenced until the estimated amount of the copying and comparing fees and, as the case may be, translation fee, when leviable, have been deposited with the Record-keeper: Provided that the Judge may sanction the preparation of copies or translations costs of which are to be recovered by value payable post. (2) If the estimated amount of fees and, in the case of a certified copy, also the requisite stamp is not deposited within seven days from the date of the communication under sub-rue (I) of rule 323 to the applicant, the application shall be rejected and note to that effect made in Column No.24 of the Register of Application of copies and translations.

8. It is crystal clear that the applicant did not approach the appellate Court in the months of May, June and 20 days of July. The month of July is declared as summer vacation in District Naushehro Feroze, Sindh, therefore, the applicant should have filed the civil appeal on first opening day of the Court i.e. 1-8-2005 when he had received the certified copies during the vacation, but he did show any vigilance to file the appeal within time on the first opening day of the Court after summer vacation i.e. 1-8-2005, but he filed the same with delay of 23 days. As such, the contention of the learned counsel for the applicant that the appeal was time barred for 4 days is contrary to the facts available on record.

9. I have very humbly gone through the case law cited by the learned counsel for the applicant and I am of the opinion that the said case law are distinguishable from the facts of present case as in the case of Zulfiqar and others v. Shahadat Khan (supra) mistake in filing of a petition, instead of an appeal, was considered to be bona fide and since the appeal was beyond the prescribed period of limitation, when filed, the delay was condoned and it was held by the honourable Supreme Court of Pakistan that the petition was filed well within 30 days and no condonation was involved if the Office had pointed out on presentation thereof that the appeal, and not petition, was competent, the defect could be rectified. Thus, in fact, although a mistake was committed by the learned counsel in filing the petition instead of appeal yet its effect was aggravated by silence of the Office and it is well-settled principle of law that act of the Court or the act of the public functionary on the actions of whom a citizen has no control should not be allowed to prejudice anyone. In case of Taza Gul and others v. Haji Fazal Subhan (supra) in the same situation as that of the case of Zulifquar and others v. Shaukat Khan (supra), it has been held by the honourable Supreme Court of Pakistan that it is well-settled that no person should suffer for the mistake of the Court. In the said case the Office had also entertained the petition for leave to appeal without any exception and the same was converted into the direct appeal holding therein that the petitioners cannot be made to suffer on account of misconception of law and it was also observed that the petitioners were not guilty of negligence or recklessness in the matter of prosecution their remedy before Supreme Court. So far, the case of present applicant is concerned, it is obviously not the case of the applicant that he had filed any civil revision instead of civil appeal in the appellate Court. Had it been the case of applicant, the same would have been converted in to a civil appeal, without touching the point of limitation considering that is "mistake of the Court". But in present case the contention of applicant is that due to miscalculation of period, the civil appeal was filed with delay of 4 days.

10. It is well-settled principle of law that in order to succeed in application for condonation of delay, each and every day's delay is to be explained. In this regard Mr. Justice Saleem Akhter as Judge of High Court of Sindh (as his Lordship then was) has held in the case of The West Pakistan Agricultural Development Corporation and 2 others v. Soomar and 2 others (PLD 1984 Karachi 190), as under:-- "Under section 5 of the Limitation Act the Court is empowered to exercise its discretion for condoning the delay if from the facts and circumstances of the case it is satisfied that the appellant due to sufficient cause was prevented from preferring the appeal within the prescribed time. Sufficient cause has nowhere been defined nor can a fixed rule be laid down to determine what is sufficient cause. It entirely depends upon the facts and circumstances of each case which may differ from one case to another. Therefore, one has to examine the facts and ground set out by the appellant. The discretion to be exercised by the Court should be in a judicial manner. Neither it should be arbitrary nor very liberal. If the discretion is exercised on wrong notion of law it will not be an exercise of judicial discretion. The Court has to see that while exercising discretion no injustice is done to any party. The notions of justice are not to be extended only to comfort the appellant but there is another party before the Court and he is the respondent. The Court has, therefore, to see that justice is done to both the parties according to law. The best rule to guide the discretion is whether the appellant has acted with reasonable diligence in presenting the appeal. In an application under section 5 of the Limitation Act it is the duty of the party who is seeking condonation of delay, to explain the delay of each and every day and unless it is satisfactorily explained delay cannot be condoned. It is to be borne in mind that by lapse of times a vested right is accrued to the other party of which it cannot be deprived lightly". In the case of Muhammad Hussain v. Settlement and Rehabilitation Commissioner (1975 SCMR 304) the explanation founded on misconception was not accepted and it was observed that in civil matters a valuable right accrues to the other side by laps of time and it is necessary that each day's delay should be necessarily explained. Similar principle was laid down in the case of Muhammad Saeed v. Shaukat Ali (1982 SCMR 285) calling upon to appellant to explain each day's delay. In the case of Mst. Rukhsana Ahmed v. Tariq Attaullah (1980 SCMR 36), even one day's delay was not condoned, holding that even if the time requisite for obtaining the certified copy of the ejectment order is computed from date of application for grant of copy to date of its delivery, the first appeal filed by petitioner was barred by one day.

11. I am of the considered view that the miscalculation is no ground to condone the delay in filing of the appeal as by expiry of period of limitation, valuable right is vested in respondents of which, they cannot be deprived of. Further, the applicant has failed in showing any bona fide mistake in calculating period of limitation. Therefore, the explanation of applicant is unsound and illogical and is declined.

12. For the foregoing reasons, I do not find any jurisdictional error, factual or legal infirmity in the impugned order passed by the learned appellate Court. Therefore, this civil revision having no merit is dismissed in limine along with listed C.M.A. AG/H-19/K Revision dismissed.