1986 PLP 312 (MLD)

2. The application under section 5 of the Limitation Act on which this order has been passed was filed in an appeal which was preferred by the Government of Sind before the District Judge on 27‑5‑1978 against the judgment of Senior Civil Judge, Badin in suit No.54 of 1976. The appeal was admitted on 31‑5‑1978 subject to limitation which point was to be decided at a later stage. An application under section 5 of the Limitation supported by affidavit of Muhammad Izhar Khan was filed by the respondents, after an application under section 151, C.P.C was filed supported by the affidavit of Muhammad Alim in which a preliminary objection was taken to the maintainability of the appeal. It was stated in the affidavit of Muhammad Izhar Khan, S.D.O. that the delay was due to the fact that sanction for filing the appeal was not granted in time and lot of time was taken up in postal communication. It was also stated that the routine correspondence could not be completed in time in spite of all speed. Finally, it was stated that the delay was not intentional.

3. The learned District Judge after hearing the arguments of both the parties and after perusing the affidavits, came to the conclusion that the delay was sufficiently explained and, therefore, condoned the same and granted the application under section 5 of the Limitation Act.

4. I have heard Mr. Muhammad Ali Shaikh for the applicants. He has contended that where due to delay an appeal has become time‑barred, vested rights have been acquired by the other party, such vested rights cannot be taken away unless good cause is shown for condonation of the delay and each day's delay is satisfactorily explained. In this connection he has relied on 1976 S C M R

102. He further contended that an appellant, who comes with the request for condoning the delay under section 5 of the Limitation Act must show that his conduct throughout the period from passing of the judgment till the filing of the appeal has been one of reasonable diligence. In this connection he has placed reliance on P L D 1975 Kar. 503.

5. Finally it was argued by Mr. Muhammad Ali Shaikh, that standard of explanation for the delay for the Government as well as the private party is one and the same. The delay on the part of Government cannot be judged differently from the delay on the part of a private party. Hence the mere fact that the respondents have stated that the delay was due to time consumed in obtaining sanction and routine correspondence cannot be considered as a sufficient ground for condoning the period of limitation. In this behalf reliance is placed on P L D 1973 Kar. 618.

6. The above arguments of the counsel for the applicants supported by the rulings thus cited by him are unexceptionable and carry great weight. I have, therefore, no hesitation in holding that the learned District Judge was not justified in allowing the application under section 5 of the Limitation Act for condoning the delay. Hence I set aside the impugned order of the learned District Judge.

7. It may, however, be noted that on 23‑8‑1980 an application for early hearing of this revision application was heard by the Hon'ble Chief Justice and the following order was passed:‑

"The only ground urged is that the original case is pending before the District Court at Badin. It would on the contrary be better if the District Court heard the case so that the aggrieved party may come to this Court when this Revision Application will come up for hearing alongwith other case. I see no reason to grant early hearing to this case." It so happened that instead of giving an opportunity to District Court Badin to dispose of the appeal on merits, the R s P of the case was called by the Office of the Registrar by letter No.B/R.A.312/78, dated 11‑9‑1982. On inquiry from the Office I came to know that this letter was issued either by mistake or due to some misunderstanding, although no such order for calling R & P was passed by the Court. Obviously no such order could have been passed in the face of clear desire of the Hon'ble Chief Justice that the Revision Application be heard together with the appeal against the appellate judgment of the District Judge.

9. From the order of the learned District Judge it also appears that the suit was vigilantly contested before the Senior Civil Judge but the appeal was filed after delay. The learned District Judge has allowed the application under section 5 of the Limitation Act after taking into consideration the affidavits of Muhammad Alim and Muhammad Azhar alone which were filed in support of the application under section 151, C.P.C. filed by the applicants, and application under section 5 of the Limitation Act filed by the respondents. It would have been proper if the learned District Judge would have decided the application under section 5 of the Limitation Act alongwith the judgment in the main appeal, and after taking into consideration all the relevant facts and circumstances even if the parties had not asked for cross‑examination of the deponents or had not produced any other evidence in support or against the said application under section 5 of the Limitation Act.

10. Hence I remand the application under section 5 of the Limitation Act to the learned District Judge for decision alongwith the appeal. The R & P of the appeal should also be sent back to the learned District Judge, Badin to expeditiously dispose of the same appeal within a period of three months from today. M. Y. H. Case remanded.