PLJ 2019 Quetta 77
Present : A BDULLAH BALOCH , J
UMER DIN--Petitioner.
versus
MAIRAJ -UD-DIN & others --Respondents
Civil Revision No. 49 of 2017, decided on 24.4.2019.
Specific Relief Act, 1877 (I of 1877) --
----Ss. 42 & 54--Suit for declaration and permanent injunction--Joint recorded owner --Suit land
was gifted and transferred --Plaintiff was minor at time of transfer --Advertisement for sale
without consent of co- owner --Suit was decreed ex- parte --Appeal --Dism issed --Time barred --
Learned counsel for petitioner mainly agitated that petitioner being a laymen does not know intricate question of law and went to Karachi in order to spend winter vacations with impression that his previous counsel is appearing before l earned trial Court on his behalf, but previous
counsel did not appear before learned trial Court for reasons best known to him nor inform petitioner, but such plea of petitioner does not constitute sufficient cause to condone inordinate delay of filing appeal --In view of dictum laid down by Hon'ble apex Court, facts and
circumstances of case it is apparent that ex -parte order passed by learned trial Court on 23rd
December, 2015 was appealable within 30 days, but admittedly petitioner did not prefer any appe al against ex-parte order well within time and application for condonation of delay filed by
petitioner does not describe any plausible explanation and sufficient cause, learned appellate Court had rightly dismissed appeal of petitioner being time barred-- Learned counsel for
petitioner has failed to point out any illegality, infirmity or jurisdictional defect in concurrent finds of Courts below to warrant interference by this Court in revisional jurisdiction--Civil Revision was dismissed. [Pp. 80 & 82] A, B & C
2019 YLR 1, 2019 CLC 321 & 2016 SCMR 1821, ref .
Mr. Shah Jahan Khan, Advocate for Petitioner(s)
Mr. Syed Iqbal Shah, Advocate for Private Respondents. Mr. Saifullah Sanjarani , Assistant Advocate General for State
Date of hearing: 11.4.2019. J
UDGMENT
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 & 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 Saddar, Tehsil and District Quetta bearing Khasra No. 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 Petitio ner/Defendant No. 1 without prior permission of Respondent No. 1/plaintiff 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 se ll 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, matter 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 pr oduce 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 wa s 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 t he respondent as well as learned Assistant Advocate
General vehemently opposed the arguments so advanced by learned 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/Def endant 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 Res pondent No. 1 filed a suit for declaration, permanent
injunction and partition, which was duly contested by the petitioner 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 af forded to
the petitioner/defendant, but time and again neither his counsel nor the defendant himself appeared to proceed with the matter, resultantly the suit of respondent/plaintiff was ex -parte
decreed vide impugned order 23
rd December, 2015. Feeling aggrieved the petitioner filed an
appeal before the learned appellate Court on 06th April, 2016 after delay of about 4½ 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 w ere
prepared on 23.07.2018 and delivered on 26.07.018, which means that 56 days were required for preparation of the 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 same 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 appeal has been filed on 04.09.2018 thus the period of summer vacation cannot be excluded from limitation. As regards the ground that Ghulam Haide r 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 taken 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 counsel. 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 d amages against the counsel. Reference in this regard may be made to the
decisions in the cases of Mirza Muhammad Saeed 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 YIR 341). 11. It is also well settled that filing an application for condonation of delay under Section
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 Court 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 t hat there are
sufficient 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 respe cts 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 explanati on and sufficient cause, 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. (Y.A.) Petition dismissedThis 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,
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