2006 PLP 1413 (CLC)

SYED ZAHID HUSSAIN, J.

Marriage between the parties which took place in June, 2004 could not survive long and ended in dissolution thereof. A suit for recovery of dowry articles worth Rs.525,250 was filed by respondent No.3 which was decreed by the Family Court on 27-7-2005. The petitioner being aggrieved of the same, filed appeal which was dismissed by the learned Appellate Court on 28-1-2006. Since the appeal was admittedly barred by time, application for condonation of delay had been filed by the petitioner but the delay was not condoned by the Appellate Court. Consequently the appeal was dismissed as barred by time.

2. The same grounds are sought to be urged for assailing the judgment of the learned Appellate Court which were urged for seeking condonation of delay before lower Appellate Court. It is contended that the Appellate Court has wrongly dismissed the appeal as barred by limitation. The learned counsel for respondent No.3 supports the appellate judgment.

3. As mentioned above, the suit was decreed by the learned Family Court on 27-7-2005. The application for seeking condonation of delay was dealt with by the Appellate Court as under:-- "According to the affidavit furnished by Mr. Khan Beg Janjua, Advocate, he remained ill from 22-7-2005 to 5-8-2005, but this fact is of no help to the appellant, as the copy was applied on 26-8-2005 i.e. after 21 days of the recovery of the counsel as till A the delay which is sought to be condoned is from 10-9-2005 to 20-9-2005 and nothing has been placed on record to substantiate that the learned counsel for the appellant was ill during the above said span of time and was not in a position to file appeal, in time. Moreover, the question arises that if the attorney was at Lahore, then how she received certified copy of the judgment and decree. This fact by itself takes out the bottom from the version of the appellant. Similarly, nothing has been annexed with the affidavit of the attorney that she was away to Lahore. Even it she was at Lahore, she could instruct her counsel on phone or through other modes to apply for copy and obtain the same and prepare the appeal and through courier service, memorandum of appeal etc. could be sent to her at Lahore for signature, but all this lacking. No proof of illness of the sister of the attorney or travelling of the attorney has been placed on record and in absence of the same, mere filing of affidavits of the counsel or the attorney is of no help to the appellant. Under the law governing the subject, it was obligatory upon the appellant to explain each and every days satisfactory but in the instant case, the appellant has badly failed to discharge the liability of satisfactorily explaining the delay."???????? The perusal of the above would show that the learned Appellate Court had taken into consideration all aspects of the matter in coming to its conclusion that no case for condonation had been made out and the appeal was time-barred. Needless to reiterate that when the time runs out for approaching the relevant forum, each days delay is required to be explained through convincing explanation as valuable rights accrue in favour of the other side, with the expiry of limitation. Apart from the fact that in view of Irtiqa Rasool Hashmi v. Water and Power Development Authority and another 1980 SCMR 722 and Naseem Ahmad Chaudhry v. Chairman, Punjab Labour Appellate Tribunal, Lahore and 4 others 1995 SCMR 1655 the discretion so exercised by the Appellate Court in declining the condonation of delay does not warrant interference by this Court in writ jurisdiction as no illegality has been committed in doing so, I myself am not convinced of the explanation sought to be adumbrated in filing of the delayed appeal or seeking condonation of delay. No illegality thus, has been committed by the lower Court in dismissing the appeal. In such view of the matter, when the dismissal of the appeal by the Appellate Court as time-barred is not being interfered with by this Court, I feel no necessity of embarking upon the other aspects of the matter. The writ petition is dismissed accordingly, with no order as to costs. M.B.A./M-356/L???????????????????????????????????????????????????????????????????????????????? Petition dismissed.