Order Sheet

THE HIGH COURT OF SINDH KARACHI

High Court Appeal No. 47 of 2017

Date	Order with Signature of Judge

Hearing (priority) case :

1.         For hearing of CMA No. 200/2017.

2.         For hearing of main case.

13.11.2018

                        Mr. Muhammad Nooruddin advocate for the appellant.

                        Mr. Mohsin Kadir Shahwani advocate for respondent No.1.

                        Mirza Aatif Baig advocate for the intervener / applicant.

Chief Executive Officer Cantonment Board, Malir Cantt. Karachi, Province of Sindh and Tapedar Deh Dozan, Tapo Gujro, Malir, called absent

NADEEM AKHTAR, J. – This appeal is directed against the order passed on 21.12.2016 in Suit No.907/2015 whereby CMA No.8636/2015 filed in the said Suit by the appellant under Order XXXIX Rules 1 and 2 CPC was dismissed. The appellant has filed CMA No.200/2017 under Section 5 of the Limitation Act, 1908, praying that the delay of one day in filing the present appeal be condoned. The said application is supported by the affidavit of the appellant’s counsel, and the only ground on which he is seeking condonation of delay is that he could not file the appeal within time as he was out of station due to winter holidays and had “seasonal fever”. Despite this admitted position, he has claimed that the admitted delay on his part was not wilful. The above statement is self contradictory because if the counsel was indisposed, he could not have travelled and since he admittedly went out of station, he must have been physically fit. It may be noted that details of the place where he went during winter holidays, the duration of his stay at such place and medical certificate have not been submitted by him in support of his above contention. In any event, delay cannot be condoned on such flimsy and vague ground. Moreover, the appellant has not filed his own affidavit in support the application for condonation of delay and there is no explanation whatsoever on record as to why the appeal was not filed within time by the appellant himself.

In the above context, we may refer to the case of Imtiaz Ali V/S Atta Muhammad and another, PLD 2008 Supreme Court 462, wherein it was held by the Hon’ble Supreme Court that the appeal, having been filed after one day of the prescribed period of limitation, had created valuable right in favour of the respondents, and no sufficient cause was found for filing the appeal beyond the period of limitation. The delay of only one day was not condoned by the Hon’ble Supreme Court in the cited case.

In view of the above, CMA No.200/2017 is dismissed, and resultantly the appeal is also dismissed with no order as to costs.

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