2001 SCMR 1459 (PLP)

DEEDAR HUSSAIN SHAH, J. ‑‑‑Petitioners seek leave to appeal against the order of learned High Court of Sindh Bench at Sukkur dated 27‑8‑1999 whereby Civil Revision No.32 of 1997 filed by the petitioners was dismissed.

2. Brief facts of the petition are that respondent No.5 Mst: Azizunnisa filed suit for mandatory and permanent injunction against respondents Nos. l to 4 and two others. As against respondents Nos. l to 4 as well as private respondent‑Naveed sort of Masroor, suit was dismissed due to non‑deposit of process fee while remaining defendants though filed written statements did not contest the suit with the result that it was decreed in her favour. The petitioners preferred appeal before the District Judge, Shikarpur which was transferred to IVth Additional District Judge who without going into factual controversies dismissed the appeal as barred by limitation. The petitioners assailed the judgment of the Additional District Judge in Revision before the learned High Court of Sindh Bench at Sukkur, but the same was also dismissed vide judgment dated l‑2-1999.

3. Mr. G.M. Qureshi, learned counsel for the petitioners that on the point of limitation notice was not issued to the petitioners and they had been condemned unheard, therefore, leave to appeal may be granted and the case may 'be remanded .to the IVth Additional District Judge for rehearing.

4. Mr. Kadir Bakhsh Bhutto, learned counsel for respondent No.5 has contended that it is borne out from the record that trial Court decreed the suit vide judgment dated 20‑6‑1996, formal decree was drawn on 27‑6‑1996 whereas memo., of appeal before the District Court was filed on 18‑8‑1996, Petitioners applied copy of the judgment on 5‑8‑1996 which was delivered to them on 8-8‑1996.

5. Mr. Sarwar Khan, learned A.A.‑G. appearing on behalf of respondents Nos. l to 4 supports the impugned judgment and further submits that this petition is without merit and substance which is liable to be dismissed.

6. It is borne out from the impugned judgment that as the decree was drawn on 27‑6‑1996, the period of limitation for filing the appeal commenced to run from 28‑6‑1996 and computing a period of 30 days it expired on 27‑7‑1996. The Civil Courts were closed on account of summer vacations in the month of July, 1996 and in all fairness appeal under the provisions of law could have been filed on first reopening day i.e. 1st A August, 1996. It is also an admitted fact that the petitioners applied for certified copy on 5‑8‑1996 which was delivered to them on 8‑8‑1996. From this it is crystal clear that petitioners applied for grant of copies of judgment and decree after expiry of period of thirty days prescribed under Article 152 of Limitation Act. No application under section 5 of the Limitation Act, 1908 was either moved before the appellate Court nor any sufficient cause was shown before the Courts below. Section 3 of Limitation Act provides that subject to provision contained in sections 4 to 25, every suit instituted, appeal preferred and application made after the period of limitation prescribed, therefore, by the. First Schedule shall be dismissed although limitation has not been set up as defence. Reference may be made to (i) Hakim Muhammad Boota v. Habib Ahmed PLD 1995 SC 153 and (ii) Nasir Raza Jafri v. Macter Pharmacutical (Pvt.) Ltd. PLD 1994 SC 147 (sic). A vested right is created in favour of the respondents which cannot be taken away on the flimsy ground that the petitioner was not heard. The petitioner B failed to appear and submit his case before the appellate Court, therefore. He should blame himself. There is no infirmity with the impugned order. We in the circumstances stated find no merit and substance in this petition, consequently leave is refused and petition is dismissed. Q.M.H./S‑101/S Petition Dismissed.