P L D 2006 Karachi 126 (PLP)

KHILJI ARIF HUSSAIN, J.

This High Court Appeal has been filed against the judgment and decree passed by the learned Single Judge decreeing the suit in the sum of Rs.2,43,670 towards air fare plus US $17,928 on account of medical treatment and for general damages or non-pecuniary loss on account of physical and mental agonies, humiliation and defamation at US $ 500 per day for 30 days. Brief facts of the case are that the respondent No.1 filed suit for damage and compensation for Rs.10 million against the appellant and respondents Nos. 2, 3 and

4. The plaintiff filed the suit, as he had not been allowed boarding by the appellant against confirmed reservation on the tickets issued by the respondent No.2. Confirmed air tickets were issued for a journey originating from Karachi on 14th April, 1999 on Emirates Airline to Dubai and from Dubai to further destination on British Airways. On 14-4-1999 when respondent No.1 along with his son reported at check-in-counter of the appellant for obtaining their boarding cards, they were informed that they have no reservation and on showing computer slips about the confirmation of seats the check-in staff of the appellant changed the stance and informed that since the seats were not re-confirmed 72 hours before the start of the journey they could not be accommodated. Due to refusal of the appellant from boarding respondent No.1 and his son they could not avail the appointment with Dr. Earnest Methew fixed on 16-4-1999. The respondent No.1 on account of ailment of his son had to obtain alternate appointment from other consultants in USA for immediate relief. As per averments made in the plaint the plaintiff along with his wife travelled to USA, incurred heavy expenses in getting the interim treatment before he could see. Dr. Earnest Mathew by subsequent appointment. It is stated that respondent No.1 was denied boarding card by the appellant just to accommodate some high officials who wanted to go to see cricket tournament in Sharjah and attend trade festival in Dubai. After recording evidence and hearing the parties, learned Single Judge decreed the suit. Aggrieved by the judgment and ` decree passed by the learned Single Judge appellant preferred this appeal along with the application under section 5 of the Limitation Act for condonation of delay in filing the appeal. Heard Mr. Mahmud Alam, learned counsel for the appellant, Mr. Akhtar Hussain, learned counsel for respondent No.1, and Mr. Khalid Rehman, learned counsel for the respondent No.2. Mr. Mahmud Alam, learned counsel for the appellant argued in support of his application under section 5 of the Limitation Act that delay in filing of the appeal has been caused due to reason beyond the control of the appellant. It is contended by the learned Advocate for the appellant that the Advocate who was appearing in Suit No.530/2000 did not 'inform the appellant immediately after passing of the judgment and decree dated 3-3-2004 and he applied for the certified copy on 4-4-2004 which were made ready on 17-4-2004. It is further contended by the learned counsel for the appellant that the appellant received copy of judgment and decree after the judgment was reported in daily "Dawn" dated 13-4-2004 when for the first time appellant came to know about the judgment and decree passed by this Court. Learned counsel for the appellant in support of his contention relied upon the cases of Muhammad Bashir and another v. Province of Punjab 2003 SCMR 83; Managing Director Sui Sourhern Gas Company v. Ghulam Abbas and others PLD 2003 SC 724; Haji Hussain Haji Dawood and others v. M. Y. Khrati 2002 SCMR 343; Muhammad Shafi v. Muhammad Hussain 2001 SCMR 827; CGM (Compagine General Maritime) v. Hussain Akbar 2002 CLD 1528 (Karachi), Town Committee Kot Abdul Malik District Sheikhupura v. Province of Punjab 2001 YLR 1032 (Lahore) and Jinnah Sports Club (Regd.) v. Pakistan Cricket Board 2000 CLC 1790 (Lahore). On the other hand, Mr. Akhtar Hussain learned counsel for respondent No.1 opposed the application and argued that no plausible reason has been given for condonation of delay in filing the appeal. The application under section 5 of Limitation Act is not supported by the personal affidavit of the learned Advocate for the appellant. Learned Advocate for appellant pointed out from the judgment that the learned Single Judge has granted US $10,000 towards medical expenses whereas in fact respondent had claimed US $1,

000. We have taken into consideration arguments advanced by the learned Advocate for the respective parties and also gone through the case-law relied upon by them. By section 5 of the Limitation Act legislature gives exemption to the party who for sufficient cause could not approach Court within the time fixed by law, and being an exception clause, the same has to construe liberally. The expression "sufficient A cause" used in section 5 of the Limitation Act should be given liberal construction so as to advance substantial justice. However, discretion given has to be exercised judicially and not arbitrarily. Section 3 of the Limitation Act provides that subject to sections 4 to 25 every suit instituted, appeal preferred and application made after the period of limitation prescribed therefor by the First Schedule shall be dismissed even if limitation has not been set up as defence. It is by now settled that the party who is seeking indulgence of Court for condonation of delay has to explain satisfactorily each and every day of delay and further that the delay has been caused by the reason beyond his control. Keeping in view the above principle of law we will now examine whether appellant has explained satisfactory delay in filing the appeal, and appeal could not be preferred within the period of limitation for the reason beyond the control of appellant. The judgment and decree in the suit was passed on 3-3-2004. The appellant tiled application for certified copy of judgment and decree dated 4-4-2004. Copies of judgment and decree were made and delivered to the appellant on 17-4-2004 and the appeal has been filed on 8-5-2004. The appellant tried to shift the entire burden on the shoulder of the Advocate who was representing the appellant before the learned Single Judge. Affidavit of the learned Advocate for the appellant who was appearing before the learned Single Judge has not been filed that the delay has been caused due to act of the Advocate. Be that as it may, it is an admitted fact that the copy of the judgment and decree was delivered on 17-4-2004 and same has been received by the appellant on 19-4-2004. Sufficient time was available for filing the appeal within the period of limitation when appellant received the copy, but appellant chooses not to file the appeal within the prescribed period of time. No explanation has been given why the appellant has not preferred the appeal immediately after receiving certified copy of judgment and decree particularly when sufficient time for filing the appeal was available at that time. The decree in the instant case was drawn on 16-4-2004 accordingly time starts to run from the date of preparation other decree and till the copy delivered has to be excluded, while computing the period for filing the appeal. The appellant after receiving certified copy on 17-4-2004 had to file the appeal within 20 days from the said date, which expired on 5-5-2005, whereas the appellant had filed the appeal on 8-5-2005. Article 156 of the Limitation Act prescribes twenty days from the date of decree for an appeal against the order/judgment of Single Judge of High Court in exercise of its original Civil Jurisdiction. Rule 7 of Order XX of Civil Procedure Code specifically deals with the "date of decree" and lays down that it shall bear the date and the day on which the judgment was pronounced. Order XLI, Rule 1 required that every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader, and such memorandum while presented to the Court or to such officer as it appoints in this behalf shall be accompanied by a copy of the decree appealed and of the judgment unless the Appellate Court dispenses therewith on which it is founded. Rule 162 of Sindh Civil Court Rules (O.S.), like Rule 185 Sindh Chief Court Rules provides that the Judge when signing the decree shall write below his signature also the date, month and year on which the decree is actually signed by him. Accordingly time started to run for the purposes of limitation against the appellant from the date of signing of the decree. The appellant has failed to give any explanation, what to say plausible, for not filing appeal within the prescribed period of time after receiving certified copy of judgment and decree except that the matter was under consideration before the higher authority of the appellant. It is by now settled that merely because matter remained under examination before the higher authority is not a valid ground for extension of period of limitation. If any case-law is required, it is available in the case of Commissioner of Income Tax v. Rais Pir Ahmad Khan 1981 SCMR

37. For the foregoing reasons application under section 5 of the Limitation Act is dismissed and consequently appeal is also dismissed as barred by time. Before parting we would like to observe that the appellant's Advocate pointed out certain typographical error in the judgment which can be rectified, if so advised, by filing application under section 152, C.P.C. These are the reasons of our short order dated 19-10-2005 by which we have dismissed the appeal along with the listed application. M.H./E-14/K?????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.