ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

H.C.A. No. 32 of 2009

     Date           Order with signature of Judge        

Date of hearing           :    12^th November 2009.

Appellant through    :    Mr. Khalid Mehmood Awan,

Advocate.

Respondent through   :    Mr. Qamar Muhammad Khan,

Advocate.

>>>>>>>> <<<<<<<

GULZAR AHMED, J.:- The appellant has filed this appeal on 10.1.2009 against the order dated 04.12.2008, passed by learned Single Judge of this Court in Suit No. 606 of 2008, by which the respondent’s application for granting him leave to defend the suit was allowed on his furnishing in one month Bank Guarantee in the sum of Rs. 20 Millions with the Nazir of this Court.

It seems that office has raised number of objections on the appeal including that of non-filing of certified copy of impugned order and how the appeal is in time. The appellant’s counsel had replied on the objection memo that “All objections complied” and signed the objection memo with the date of 02.6.2009.

It seems from the order dated 13.5.2009 that the appellant’s counsel sought time from the Court to file an application for condonation of delay, which he was allowed to do within a week time. On 25.5.2009, the appellant filed an application under Section 5 of the Limitation Act, seeking condonation of delay in filing of the appeal. The respondent had filed counter affidavit to which no rejoinder is filed by the appellant.

The only contention of learned counsel for the appellant was that the impugned order was passed on 04.12.2008 and the time for filing of the appeal of 20 days was upto 24.12.2008 and 25.12.2008 being public holiday and winter holidays of the Court had started until 9.1.2009, he has filed this appeal on the opening day on 10.1.2009, which was within time. He has further contended that there was no mandatory requirement of filing of certified copy along with appeal.

Learned counsel for the respondent, however, contended that appeal is time barred and application is liable to be dismissed.

We have considered the submissions made by learned counsel and have gone through the record.

The appellant appears to have filed the appeal without certified copy of impugned order on 10.1.2009. The filing of the appeal on 10.1.2009 itself was time barred as the last date for filing of the appeal as per appellant’s own saying in his affidavit was 24.12.2008 and therefore the question of availing the benefit of winter holidays does not arise which admittedly commenced from 25.12.2008.

What we find from the record is that the appellant had filed the application for obtaining of certified copy of impugned order on 13.1.2009 which was much after the expiry of limitation period for filing of appeal itself. Nothing was said by the counsel for the appellant as to why he applied for certified copy of impugned order after the expiry of limitation period for filing of the appeal nor any reason is given by the appellant in his affidavit filed in support of the application. The law requires that an appeal is to be presented in Court along with impugned order and that it has to be done within prescribed limitation period of 20 days.  The limitation period for filing of this appeal expired on 24.12.2008 and filing of appeal on 10.1.2009, without the copy of impugned order, was not a valid presentation of the appeal. Reference in this respect be made to case of COOPERATIVE MODEL TOWN SOCIETY through Secretary versus Mst. ASGHARI SAFDAR (2005 SCMR 931). The appellant applied for obtaining certified copy of impugned order on 13.1.2009 which was supplied to him on 14.1.2009. This exercise of appellant was very much out of time and therefore his appeal is hopelessly time barred and no sufficient cause has been shown by the appellant for such delay in filing of the appeal.

No ground having been made out for condonation of delay, consequently, after hearing the learned counsel for the parties on 12.11.2009, by our short order we had dismissed the appellant’s application for condonation of delay in filing of the appeal; and consequently dismissed the appeal as time barred.  Above are the reasons for the said short order.

        J U D G E

J U D G E

Aamir/PS