IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

 

 

2nd Civil Appeal S-01 of 2022               Haji Muhammad Yaqoob &        Another vs.

                                                          Ghulam Nabi & Others

                    

For the Appellants                     :         Mr. Waheed Ahmed Shaikh  

Advocate

                                                         

Date of hearing                         :         14.02.2022

 

Date of announcement              :         14.02.2022

 

ORDER

 

Agha Faisal, J.         (1) Overruled (2) Granted; subject to all just exceptions (3) The appellant has impugned the judgment dated 19.11.2021, whereby the learned V-Additional District Judge, Shikarpur had been pleased to dismiss the appeal on account of limitation. It is considered appropriate to reproduce the operative findings herein below:

                "Perusal of record shows that both the appellants failed to participate into the proceedings after filing their written statement in the suit. It is also an admitted fact that both were being represented by their counsel. After getting information about institution of suit, a party is required to get himself in touch with Court and proceedings of the suit either by himself or through his legal representative and then if he/they have failed to appear before Court and to participate into the proceedings with their own will and wish, then they cannot subsequently blame their absence upon any of the circumstances which are not available on the record. For a while if we consider the grounds taken in application U/S 5 of Limitation Act to be true, that appellants have no knowledge about passing of impugned judgment and decree on the relevant date but soon after passing of judgment and decree they obtained its certified to be true copies on 11.3.2020. The record shows that the certified to be true copies of judgment and decree were applied by appellants on 11.3.2020 and on the same date cost was paid, stamps were supplied and copies were made ready and delivered to appellants but both the appellants have miserably failed to file the instant appeal within period of 30 days after getting certified to be true copies from trial Court, but they have filed the instant appeal on 24.8.2020 after reasonable delay of 5 months and 13 days, for which no explanation has been advanced that why such delay is caused even after getting the knowledge and obtaining certified to be true copies of impugned judgment and decree. In all there is delay of about 6 months and 23 days and law of limitation demands reasonable explanation for the delay of each day. The law is very much clear and settled that after described period of limitation elapsed, the door of justice is closed and no plea of injustice and hardship or ignorance can be of any avail unless the delay is properly explained and accounted for.

                   For the forgoing circumstances, appellants have failed to urge reasonable grounds for consideration of delay. So for the question of merits are concerned, it is settled principle of law enunciated by the Honourable Supreme Court of Pakistan in a case of Khan Sahib Sher Muhammad reported as 1987 SCMR 92 that when the appeal is required to be dismissed on limitation then its merits need not to be discussed. So keeping in view of settled principle of law, I do not go into merits and discuss the same. The appeal in hand is hereby dismissed in limini being time barred."

2.            Appellants' counsel submits that the learned appellate court ought to have considered the case on merits and not relied on mere technicalities to non-suit the appellants.

 

3.            Heard and perused. The learned counsel was confronted with the findings of the appellate Court, as particularized supra, and asked as to whether they were commensurate with the facts and he replied in the affirmative. Learned counsel was then asked to demonstrate any infirmity in the appellate judgment meriting interference under Section 100 of the Code of Civil Procedure, however, he remained unable to do so.

 

4.            It is the considered opinion of the Court that the prescriptions of limitation are not mere technicalities and disregard thereof would render entire law of limitation redundant[1]. It has been maintained by the Superior Courts consistently that it is incumbent upon the Courts to first determine whether the proceedings filed there before were within time and the Courts are mandated to conduct such an exercise regardless of whether or not an objection has been taken in such regard[2]. It has been maintained by the honorable Supreme Court[3] that each day of delay had to be explained and that in the absence thereof the proceedings ought not to be entertained. In the present facts and circumstances the delay could obviously not be justified.

 

5.            It is settled law that a second appeal may only lie if a decision is demonstrated to be contrary to the law; a decision having been failed to determine some material issues; and / or a substantial error in the procedure is pointed out. It is categorically observed that none of the aforesaid ingredients have been identified by the learned counsel.

 

6.            In such regard it is also important to advert to section 101 of CPC, which provides that no appeal shall lie except on the grounds mentioned in the Section 100 of CPC. While this Court is cognizant of Order 41 Rule 31 CPC, yet at this stage no case has been set forthwith to entertain the present appeal in view of the reasoning stated above. As a consequence hereof this appeal is hereby dismissed in limine.

 

 

JUDGE



[1] Mehmood Khan Mahar vs. Qamar Hussain Puri & Others reported as 2019 MLD 249.

[2] Awan Apparels (Private) Limited & Others vs. United Bank Limited & Others reported as 2004 CLD 732.

[3] Lt. Col. Nasir Malik vs. ADJ Lahore & Others reported as 2016 SCMR 1821.