Order Sheet

 

IN THE HIGH COURT OF SINDH AT KARACHI

 

IInd Appeal No. 91 of 2014

 

                                                                                    Before :

                                                                                    Mr. Justice Nadeem Akhtar

 

 

Applicant                   :  Zaheer Ahmed Khan,

              through M/S Umer Farooq Khan

   and Ijaz Farooq Khan Advocates.

 

Respondent No.1    :  Muhammad Eteshamuddolah Khan,

              through Mr. Shabbir Ahmed Shaikh Advocate.

 

Respondents 2 & 3  :  Called absent.

 

Date of hearing        :  29.08.2016. 

 

O R D E R

           

NADEEM AKHTAR, J. – Through this second appeal, the appellant has impugned the judgment delivered on 16.09.2014 and decree drawn on 18.09.2014 by the learned Vth Additional District Judge Karachi East in Civil Appeal No.165 of 2011, whereby the said appeal filed by him was dismissed and the judgment and decree of the learned trial Court against him were upheld.

 

2.         The relevant facts of the case are that respondent No.1 filed Suit No. 805/2005 against the appellant and respondent No.2 for declaration, permanent injunction, possession, cancellation of documents, mesne profits and damages ; and, the appellant filed Suit No.361/2006 against respondents 1, 2 and 3 for declaration, cancellation of documents and permanent injunction. Both the above Suits were consolidated by the learned trial Court and respondent No.1’s Suit No.805/2005 was treated as the leading Suit. Through a consolidated judgment and decree dated 30.04.2011, Suit No.805/2005 filed by respondent No.1 was decreed and Suit No.361/2006 filed by the appellant was dismissed. Being aggrieved by the judgment and decree of the trial Court, the appellant filed Civil Appeal No.165/2011, which was dismissed by the learned appellate Court through the impugned judgment and decree, which has been impugned in this second appeal. As the instant appeal was barred by time, an application bearing CMA No.7978/2014 was filed by the appellant under Section 5 of the Limitation Act, 1908, praying that the delay in filing this appeal be condoned.

 

3.            Mr. Umar Farooq Khan, learned counsel for the appellant, 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 appellant. He further contended that the appellant had fallen sick due to which he could not obtain certified copies for filing the appeal. He submitted that the appellant has disclosed valid and sufficient cause for not filing the appeal within time, and as such the delay is liable to be condoned. It was urged that the appeal should be decided on merits rather than on the technical ground of limitation as the appellant has all along contested the false claim of respondent No.1 in respect of the immovable property in question wherein valuable rights of the appellant are involved. In support of his submissions, the learned counsel relied upon Muhammad Amir V/S Khan Bahadur and another PLD 1996 S.C. 267, Muhammad Shoaib Alam and others V/S Muhammad Iqbal, 2000 SCMR 903, Trustees of the Port of Karachi V/S Messrs Fatima Sugar Mills Ltd. and 2 others, PLD 2011 Karachi 426, and Pakistan through Secretary Communication, Islamabad V/S Messrs Habib Insurance Company Ltd., Karachi, 1991 CLC 1270.

 

4.            On the other hand, Mr. Shabbir Ahmed Shaikh, learned counsel for respondent No.1, contended that this appeal has been filed with a considerable delay, which has not been explained by the appellant. He further contended that the appellant was required to explain the delay of each and every day, which has also not been done by him. He pointed out that no medical certificate has been filed by the appellant to substantiate that he was under some kind of disability during the period in question. It was urged that the application filed by the appellant for condoning the delay and the appeal are liable to be dismissed in such circumstances. In support of his submissions, he placed reliance upon Market Committee through Administrator / Secretary V/S Haji Abdul Karim and 3 others, PLD 2014 Sindh 624, Allah Dino V/S Haji Ahmed through Legal Heirs and 3 others, PLD 2006 Karachi 148 and Muhammad Yameen V/S District Executive Officer Schools and Literacy D. I. Khan, 2014 YLR 381.

 

5.            I have heard the learned counsel for the parties at length and with their able assistance have also examined the material available on record and the law cited at the bar. Record shows that the impugned judgment was delivered on 16.09.2014 and decree was drawn on 18.09.2014, the application for their certified copies was filed by the appellant on 09.12.2014, which were made ready on 15.12.2014 and were delivered to him on the same day. Thus, the prescribed period of limitation for filing the appeal had already expired when application for certified copies was filed. This appeal was presented by the appellant on 24.12.2014 after nine (09) days of obtaining certified copies from the learned appellate Court. In his application for condoning the delay and the affidavit filed in support thereof, the appellant has attempted to explain the long delay by making only a general and vague statement, that he had fallen sick, due to which he could not obtain certified copies for filing the appeal. However, no medical certificate or other document has been filed by him to show that he was under such disability that prevented him during the entire period in question from filing the application for certified copies or from obtaining them or from giving instructions to his counsel for filing the appeal. Moreover, the delay of each and every day has not been explained at all by the appellant in his said application or affidavit, nor has he explained the delay of nine (09) days in filing the appeal after obtaining certified copies. The vague statement given by the appellant regarding his alleged illness cannot be accepted, however, if this so-called justification for the delay prior to 15.12.2014 is accepted, even then the delay of nine (09) days in filing the appeal after obtaining certified copies still remains unexplained. Learned counsel for the appellant was not able to satisfy me as to how the application is maintainable in the absence of a valid explanation of the delay for each and every day, especially the delay of nine (09) days after obtaining certified copies.

 

6.         It is a well-established principle of law that in order to seek concession of condonation and discretion of the Court in this behalf, the party seeking condonation must explain the delay of each and every day, which has not been 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. 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 a mere 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 (supra), 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 instructions to his counsel to prefer an appeal. Thus, in the absence of a valid explanation of the delay for each and every day and medical certificate, the application filed by the appellant for condoning the delay is not maintainable.

 

7.            With profound respect to the learned counsel for the appellant, his contention that the appeal should be decided on merits rather than on the technical ground of limitation, cannot be accepted as it is well-settled that the question of limitation is not a mere technicality in view of the above-cited law laid down by the Hon’ble Supreme Court. In my humble opinion, no party is entitled to seek condonation of delay as a matter of right, no matter how strong the ground for condonation is. I am also of the view that whenever an application for condoning the delay in filing a time barred appeal or application 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 cases relied upon by the learned counsel for the appellant are, therefore, not relevant or applicable.

 

8.            As a result of the above discussion, CMA No.7978/2014 filed by the appellant for condoning the delay in filing the instant appeal, must fail. Resultantly, the appeal, being barred by time, and the pending stay application are liable to be dismissed.

 

9.            Foregoing are the reasons of the short order announced by me on 29.08.2016, whereby the application for condoning the delay as well as the appeal and pending stay application were dismissed with no order as to costs.

 

 

 

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                                                                       J U D G E