Order Sheet

IN THE HIGH COURT OF SINDH AT KARACHI

Revision Application No. 133 of 2014

Before :

                                                                                    Mr. Justice Nadeem Akhtar

Applicants 1 and 2   :  Shaikh Muhammad Sajid and Yaseen Shaheen,

   through Mrs. Tabassum Ghazanfar Advocate.

Respondent No.1    :  Roohullah Jan, through Mr. Abdul Karim Khan

   Advocate.

Respondents 2 & 3  :  Mst. Riffat Sultana and Tariq Saeed, called absent.

Respondents 4 & 5  :  Director Land & Management CDGK and the

                                       Sub-Registrar-V, through Ms. Nigar Afaq,

   State Counsel.

Date of hearing        :  24.08.2016. 

O R D E R

NADEEM AKHTAR, J. – This Civil revision Application has been filed by the applicants against the order passed on 14.11.2014 by the learned V^th Additional District Judge Karachi South in Civil Appeal No. 201 of 2014, whereby the said appeal filed by the present applicants was dismissed and the judgment and decree passed against them by the learned trial Court was maintained.

2.         The relevant facts of the case are that respondent No.1 filed Suit No. 401/2004 against the applicants and respondents 2 to 5 for declaration, permanent injunction, cancellation of documents, possession and accounts. The Suit was contested by the applicants, however vide judgment and decree dated 01.03.2013, it was decreed by the learned trial Court against the applicants as prayed by respondent No.1 / plaintiff. The applicants challenged the said judgment and decree by filing Civil Appeal No.201/2014 on 05.11.2014 before the learned appellate Court. As the appeal was hopelessly barred by time, an application was filed by the applicants under Section 5 of the Limitation Act, 1908, praying that the delay in filing the appeal be condoned. After hearing the counsel for the applicants, the application for condoning the delay as well as the appeal were dismissed by the learned appellate Court through the impugned order.

3.            Learned counsel for the applicants contended that the delay in filing the appeal was not deliberate or intentional, but was caused due to unavoidable circumstances which were beyond the control of the applicants. She further contended that the applicants had sufficiently explained the reason for such delay in their application, which was not appreciated by the learned appellate Court. She submitted that the learned appellate Court ought to have decided the appeal on merits rather than on the technical ground of limitation as valuable rights of the applicants in the suit property were involved. She argued that the application for condoning the delay was wrongly dismissed as no limitation has been prescribed therefor and as such the said application could be filed within three years under Article 181 of the Limitation Act, 1908. It was urged that the impugned order is against the well-settled principles of natural justice and law. In support of her submissions, the learned counsel relied upon Messrs United Bank Ltd. V/S Mrs. Rehmat and another, 1991 MLD 1803.

4.            Perusal of the application filed by the applicants before the learned appellate Court for condoning the delay shows that applicant No.1 had attempted to explain the long delay of more than 18 months by stating that he suffered an attack of paralysis on 20.07.2011 ; he was discharged from the hospital on 23.07.2011 and thereafter he was confined to bed ; and, he lost his memory which returned on 30.10.2014, when he contacted his counsel and came to know about the judgment and decree. It is pertinent to mention here that the medical certificates filed by applicant No.1 along with his application were silent about his alleged loss of memory. Moreover, there was no explanation at all by or on behalf of applicant No.2 as he did not file his affidavit in support of the application for condoning the delay, and no explanation whatsoever was offered on his behalf by applicant No.1 in the application or affidavit. It is important to note that the delay of each and every day was not explained by applicant No.1 in his said application or affidavit. Learned counsel for the applicants was not able to satisfy me as to how the application was maintainable in the absence of an explanation by applicant No.2 as well as a valid explanation of the delay for each and every day. It is a well-established principle of law that in order to seek concession of condonation and discretion of Court in this behalf, the party seeking condonation must explain the delay of each and every day, which was not done in this case. It is also well-settled that where an appeal is not filed within time and valuable rights accrue in favour of the opposite party, such valuable rights cannot be taken away unless very strong, convincing and solid grounds are shown for condoning the delay.

5.         In Imtiaz Ali V/S Atta Muhammad and another, PLD 2008 S.C. 462, it was held by the Hon’ble Supreme Court that the appeal, having been filed after one day of the period of limitation, had created valuable right in favour of the respondents, and as such even the delay of only one day was not condoned by the Hon’ble Supreme Court as no sufficient cause was found for filing the appeal beyond the period of limitation. In Government of Pakistan through Ministry of Works and another V/S Messrs Malbrow Builders, Contractor, Sialkot, 2006 SCMR 1248, the Hon’ble Supreme Court was pleased to hold that the question of limitation being not mere a technicality cannot be taken lightly and the rights accrued to the other party due to limitation cannot be snatched away without sufficient cause and lawful justification. In Allah Dino V/S Haji Ahmed through Legal Heirs and 3 others, PLD 2006 Karachi 148, the medical certificate filed with the application for condonation of delay was not accepted by this Court as it did not state that the party concerned was bedridden for the entire period and he was unable to move or even communicate the instructions to his counsel to prefer an appeal.

6.            The contention of the learned counsel for the applicants that the application for condoning the delay could not be dismissed as limitation thereof was three years under Article 181 of the Limitation Act, 1908, is misconceived and not tenable. The application was not dismissed on the ground of limitation, but was dismissed on merits as the long delay of 19 months in filing the appeal had not been explained. In my humble opinion, whenever an application for condoning the delay in filing a time barred appeal is filed, irrespective of the length or period of the delay, the only test would be whether or not the delay of each and every day has been explained in a satisfactory manner to enable the Court to exercise discretion in favour of the party seeking condonation of delay. The case of Messrs United Bank Ltd. (supra) relied upon by the counsel is, therefore, not relevant or applicable. In any event, the cited case, being a Single Bench decision, is not binding on me.

7.            In the impugned order, the learned appellate Court has given valid and sound reasons for dismissing the application and appeal filed by the applicants, which do not require interference by this Court. As a result of the above discussion, this revision application has no merit and is liable to be dismissed.

8.            Foregoing are the reasons of the short order announced by me on 24.08.2016, whereby this Civil Revision Application was dismissed with costs of Rs.10,000.00 ; the applicants were directed to deposit the said amount with the Nazir of this Court within thirty (30) days ; and, the Nazir was directed to utilize the same towards the benevolent fund of the employees of this Court.

                                                                               J U D G E