2019 C L C 1781
[Balochistan]
Before Abdullah Baloch, J
UMER DIN----Petitioner
Versus
MAIRAJ -UD-DIN and another ----Respondents
Civil Revision No.49 of 2017, decided on 24th April, 2019.
Civil Procedure Code (V of 1908) ---
----S.96 ---Specific Relief Act (I of 1877), Ss. 42 & 54 ---Suit for declaration and permanent
injunction---Ex -parte decree---Appeal ---Limitation ---Condonation of delay--- Sufficient
cause---Defendant after filing written statement disappeared and was proceed ed against ex -
parte--- Suit of plaintiff was decreed ex -parte against which appeal was dismissed being time -
barred ---Validity ---Ex -parte order passed by the Trial Court was appealable within thirty
days ---Appellant did not prefer appeal against ex -parte ord er within time ---Application for
condonation of delay did not describe any plausible explanation and sufficient cause ---
Appellate Court had rightly dismissed the appeal being time barred--- No illegality, infirmity
or jurisdictional defect had been pointed out in the impugned judgment passed by the
Appellate Court ---Revision was dismissed, in circumstances.
Mehdi Hassan through Legal Heirs and others v. Punjab Co- operative Bank and
others 2019 YLR 1 and Mubarak Masih v. Muhammad Yaqoob 2019 CLC 321 rel.
Shah Jahan Khan for Petitioner.
Syed Iqbal Shah for Respondent.
Saifullah Sanjarani Assistant Advocate General for the State.
Date of hearing: 11th April, 2019.
JUDGMENT
ABDULLAH BALOCH, J .----This petition is directed against the ex -parte order dated
23rd December, 2015 passed by the Senior Civil Judge -I, Quetta (hereinafter referred as "the
trial Court") whereby the suit of respondent No.1 was decreed and judgment and decree
dated 20th February, 2017 (hereinafter referred as "the impugned Order") passed by the
learned Additional District Judge -II, Quetta (hereinafter referred as "the appellate Court")
dismissed the appeal of petitioner.
2. Relevant facts for disposal of the instant Petition are that the respondent
No.1/plaintiff filed a suit against the petitioner/defendant No.1 and another for declaration
and permanent injunction with the averments that the defendant No.1 is the real father of
plaintiff and co -owner and shareholder in the property situated at Mohal Chashma Habib,
Mouza Habib, Tappa Sadda r, Tehsil and District Quetta bearing Khasra
Nos.696/695/625/184, measuring 10- 1/4 pole 2781 sq.ft and constructed a plaza on the
disputed property. However, on 6th December, 2013, the petitioner/defendant No.1 without prior permission of respondent No.1/p laintiff published an advertisement in Daily Jang,
Quetta to sell the aforementioned property, as such, the respondent No.1 approached the petitioner/defendant No.1 and requested not to sell the property in question, but the respondent No.1/petitioner refused to do so and trying to sale out the plaza without going to partition the same. Hence the respondent No.1 filed the instant suit.
3. The suit was contested by the petitioner/defendant by means
of filing written statement.
4. After framing of issues, mat ter was fixed for recording of evidence, but time and
again the petitioner and his counsel have been failed to appear, as such, the statements of PWs could not be recorded, resultantly, the petitioner/defendant was proceeded against ex-parte and thereafter the respondent/plaintiff produced PW -1 Ali Ahmed (representative of
Qanungo) who produced revenue record Ex P/1- A, Dawood Khan, Wali Khan and also
recorded his own statement all of them supported the claim of plaintiff/respondent No.1, however, on account of absence of petitioner and his counsel, the witnesses were not cross -
examined. Thereafter, on many occasions, the petitioner as well as his counsel remained absent due to which, the statement of witnesses of respondent No.1/plaintiff could not be
cross -examined, finally the suit of respondent No.1/plaintiff was ex- parte decreed on 23rd
December, 2015.
5. Being aggrieved the petitioner assailed the order passed by the learned trial Court
before the appellate Court, the appeal being hopelessly time barred was dismissed.
6. Learned counsel for the petitioner mainly contended that the petitioner was
condemned un- heard as no opportunity was afforded to the petitioner to produce evidence in
support of his defense and to cross examine the witnesses of the plaintiff/respondent No.1; that the appellate Court was also failed to condone the delay of filing of appeal as the valuable rights of the petitioner are involved and he was deprived from his legal rights of defense; that the findings of both the Courts below are perverse, ridiculous and also suffers from mis -reading, non -reading and misappreciation of law are liable to be set aside.
7. Conversely, the learned counsel for the respondent as well as learned Assistant
Advocate General vehemently opposed the arguments so advanced by l earned counsel for the
petitioner.
8. Heard learned counsel for the parties and perused the record minutely with their
valuable assistance, which reveals that the petitioner and the respondent No.1 are father and
son and also joint recorded owners of the property bearing Mutation No.286 on equal shares,
which was transferred in their names in the year 1995 from the one Muhammad Ghafoor, Asaluddin and Salodin sons of Haji Sangeen Khan, according to the respondent No.1/plaintiff, when the suit land was gifted and transferred in the name of the parties the
plaintiff was minor; however, after gaining the age of majority his father i.e.
petitioner/defendant No.1 solemnized another marriage and thrown out his previous family
and also published an advertisement in daily Jang Quetta on 6th December, 2013 without
prior permission of respondent No.1 to sell the disputed property, on coming to know the
respondent No.1 filed a suit for declaration, permanent injunction and partition, which was duly contested by the petit ioner by means of filing written statement whereby totally denied
the claim of respondent/plaintiff, in support of his claim the respondent/plaintiff produced PW-1 Ali Ahmed (representative of Qanun- gou office), who produced the revenue record
(Fard) as Ex . P/1 -A and other witnesses; however, the counsel for the petitioner/defendant
remained absent and thereafter several opportunities were afforded to the petitioner/defendant, but time and again neither his counsel nor the defendant himself appeared to proc eed with the matter, resultantly the suit of respondents/plaintiff was ex- parte
decree vide impugned order 23rd December, 2015. Feeling aggrieved the petitioner filed an appeal before the learned appellate Court on 06th April, 2016 after delay of about 4- 1/2
months without any plausible explanation, as such, the same was dismissed.
9. Learned counsel for the petitioner mainly agitated that the petitioner being a laymen
does not know the intricate question of law and went to Karachi in order to spend winter vacations with the impression that his previous counsel is appearing before the learned trial Court on his behalf, but the previous counsel did not appear before the learned trial Court for the reasons best known to him nor inform the petitioner, but such plea of the petitioner does
not constitute sufficient cause to condone the inordinate delay of filing appeal, in this regard I am fortified by the judgment of, "Mehdi Hassan through Legal Heirs and others v. Punjab Co-operative Bank and others", 2019 YLR 1 relevant portion whereof is reproduced as
under:
"3. It is observed that the decree was passed by the Court on 23.05.2018 whereby the suit of the applicant was dismissed and this appeal has been filed on 04.09.2018 that is after 104 days. The limitation for filing the appeal was 30 days from the date of
decree. The applicant applied for obtaining certified copies on 29.05.2018 and the same were prepared on 23.07.2018 and delivered on 26.07.2018, which means that 56 days were required for preparation of t he certified copies and 59 days were consumed
on the date when copy was actually delivered to the petitioner. By deducting the afore -referred 89 days i.e. 30 days for limitation and 59 days required for obtaining
certified copies for filing appeal, the sam e still remains time barred by 15 days. The
petitioner could only be allowed further time for filing appeal had the appeal been filed on 03.09.2018 i.e. opening day after summer vacation, which time could then be excluded but the same was not done and appe al has been filed on 04.09.2018 thus the
period of summer vacation cannot be excluded from limitation. As regards the ground that Ghulam Haider Duggal, Advocate who had died on 18.08.2018, was engaged to file the appeal is concerned, suffice it to say that the applicant had not been able to
establish that the said Advocate had accepted the brief from the applicant. Furthermore, it was the duty of the applicant to keep in contact with the office of the
advocate to ensure that appeal was filed within time. The law does not help the
indolent and each and every day of delay in filing of appeal was required to be explained by the applicant which has not been done in the present case and where delay is not explained through a sufficient reason, the same cannot be condoned. Reliance in this behalf is placed on Lt. Col. Nasir Malik v. Additional District Judge
and others (2016 SCMR 1821). Thus, there is no merit in the application for
condonation of delay which is accordingly dismissed."
10. Similar view was also tak en in the case titled as, "Mubarak Masih v. Muhammad
Yaqoob, 2019 CLC 321" wherein it was held that:
"10. The precise ground that petitioner has for the filing the appeal, after a delay of
537 days, was/is that it was on account of negligence of the couns el. The said reasons,
asserted by the petitioner for none filing of civil appeal for such a long period of more than five hundred days could only be attributed as slackness on the part of the petitioner. Whereas it is a settled proposition of law that law helps the vigilant and not
the indolent. Furthermore, the negligence of a counsel would not constitute sufficient ground for condonation of delay. In this regard reliance can be placed in the case of Jhanda v. Maqbool Hussain and others (1981 SCMR 126). The only remedy available
to the petitioner, in respect of negligence of his counsel for not filing the appeal in
time, is to file a suit for damages against the counsel. Reference in this regard may be made to the decisions in the cases of Mirza Muhammad Sa eed v. Shahabuddin and 8
others (PLD 1983 SC 385), Nek Muhammad v. A.C. Jhelum (1986 SCMR 1493) and WAPDA through its Chairman, and 4 others v. Karam Din (2005 YLR 341).
11. It is also well settled that filing an application condonation of delay under Sec tion
5 of the Limitation Act each day's delay has to be explained, as after the expiry of limitation a vested right is created in favour of the other side and once limitation starts running no subsequent event could stop the same. One can take guidance from the decision in the case of Commissioner of Income Tax v. Rais Pir Ahmad Khan (1981 SCMR 37). Furthermore, condonation of the delay is always a prerogative of the Court which has to be exercised rationally and judicially, which in the present case has been done and if the order passed by an authority is neither perverse nor tainted with malice but based on sound reasons for rejecting the application for condonation of delay, that said order cannot be interfered with.
It is also well settled that the Cour t is under a bounden duty to dismiss the suit, appeal
or application, if the same is found to be barred by limitation that is why the law framers had used the word "shall" in section 3 of the Limitation Act, however, there are certain exceptions to this law as well. Normally, the Court condone the delay where a plausible explanation constituting a sufficient cause for not approaching the Court within time has been mentioned. In the present case, the assertions made in the affidavit filed by the petitioner ( appellant before the lower appellate court) in support
of limitation application had been strongly controverted by filing the objections counter affidavit etc. by the respondent No.1 before the appellate -Court. The Hon'ble
Supreme Court in the case of Ali Muhammad v. Chief Settlement Commissioner (2001 SCMR 1822) has held as under:
"because limitation creates a right in favour of one of the parties, therefore, delay in
filing of proceedings cannot be condoned lightly unless it is shown that there are suffi cient reasons to do so or the impugned order is coram non judice or is a void
order for any strong legal reason delay cannot be condoned".
In view of the above we find that application for condonation of delay was deficient in many respects and the lower appellate Court has rightly dismissed the appeal as barred by time."
11. In view of dictum laid down by the Hon'ble apex Court, facts and circumstances of
the case it is apparent that ex -parte order passed by the learned trial Court on 23rd December,
2015 was appealable within 30 days, but admittedly the petitioner did not prefer any appeal
against the ex -parte order well within time and application for condonation of delay filed by
the petitioner does not describe any plausible explanation and sufficient c ause, the learned
appellate Court had rightly dismissed the appeal of the petitioner being time barred.
12. Learned counsel for the petitioner has failed to point out any illegality, infirmity or
jurisdictional defect in the concurrent finds of the Courts below to warrant interference by this Court in revisional jurisdiction.
Thus, the petition being devoid of merits is dismissed with no order as to cost.
ZC/25/Bal
Revision dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.