IN THE HIGH COURT OF SINDH
CIRCUIT COURT LARKANA
Civil R.A.S- 52 of 2023 : Syed Akbar Ali Shah vs. Nihal Ogahi and others.
For the Applicant : Mr. Imdad Ali Mashori, Advocate
For Respondents : Nemo
Date of hearing : 02.05.2024
Date of Judgment : 02.05.2024
ORDER
Agha Faisal, J. This Revision assails Order dated 13.01.2023 passed in Civil Appeal No.60/2022 by the Court of District Judge, Kashmore at Kandhkot. Operative part is reproduced herein below:
"Thus, In view of the above discussion, it is clear that the period of limitation is to be calculated as under:
A). Number of days from date of impugned judgment (24.06.2022) till the payment of cost (17.08.2022)
B). Number of days from date of receiving certified copy of the impugned order (17.08.2022) till date of filing appeal (31.08.2022)
In the instant case, after calculating the number days, commencing from the date passing of impugned judgment, it transpire that total number of days consumed in the entire process has been more than sixty (60) days Whereas period of limitation provided by the law is 30 days, thus the civil appeal in hand is time barred by more than sixty (60) days. The plea taken by the appellant for delayed filing of appeal has been feeble condition of the appellant and ailment of his attorney. However, no medical certificate or documents, showing ailment of the attorney of the appellant, has been produced by the appellant in support of his claim. There is no cavil to the proposition that a party who seeks condonation of delay in respect of period of limitation is bound to show that the delay was caused by the reason which was beyond his/ her control and such condonation is sought in good faith. It is well settled principle that law favors vigilant and not the indolent, who sleep over their claim.
There is nothing on record showing details of facts and the period justifying appellant’s inability to timely file instant appeal. Thus, I am of the humble view that the appellant has not been able to make out a cause for condonation of delay in filing of instant appeal. It is also well settled that an aggrieved person has to pursue his/her legal remedies with due diligence and in case any suit/appeal is filed beyond limitation then delay of each day has to be explained. Reliance in this regard is placed on the case reported as Sher Afzal versus Jangi Bahadur, 2020 MLD 1546.
For the foregoing reasons, I am of the humble view that the appellant has failed to give any plausible reason depicting that the circumstances were beyond his control and restricted him from filing appeal within the limitation, prescribed by the law, therefore, the appellant is not entitled for any indulgence. Hence, the application under section 5 of the Limitation Act, being devoid of merits, is dismissed. Resultantly, the civil appeal in hand stands dismissed alongwith listed applications, being time-barred. However, there are no orders as to the costs".
The appeal was dismissed on account of limitation and absolutely no effort has been expended by the counsel to controvert the findings. On the contrary, despite repeated requests, learned counsel for the applicant professes his inability to proceed with the matter.
The delay in preferring the appeal has not been denied. In so far as the issue of limitation is concerned, it is the considered opinion of the Court that the same cannot be considered to be mere technicalities as disregard thereof would render entire law of limitation otiose[1]. The Superior Courts have consistently maintained 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]. The Superior Courts have held that proceedings barred by even a day could be dismissed[3]; once time begins to run, it runs continuously[4]; a bar of limitation creates vested rights in favour of the other party[5]; if a matter was time barred then it is to be dismissed without touching upon merits[6]; and once limitation has lapsed the door of adjudication is closed irrespective of pleas of hardship, injustice or ignorance[7]. It has been maintained by the honorable Supreme Court[8] that each day of delay had to be explained in an application seeking condoning of delay and that in the absence of such an explanation the said application was liable to be dismissed. It is pertinent to observe that the preponderant bar of limitation could not be dispelled by the appellants’ counsel before the appellate court and no effort in such regard was endeavored today. Even otherwise nothing has been articulated before the Court to befall the applicant’s case within the confines of section 115 CPC.
In view hereof, this revision is found to be without merit, hence, 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]2001 PLC 272; 2001 PLC 143; 2001 PLC 156; 2020 PLC 82.
[4]Shafaatullah Qureshi vs. Pakistan reported as PLD 2001 SC 142; Khizar Hayat vs. Pakistan Railways reported as 1993 PLC 106.
[5]Dr. Anwar Ali Sahito vs. Pakistan reported as 2002 PLC CS 526; DPO vs. Punjab Labour Tribunal reported as NLR 1987 Labour 212.
[6]Muhammad Tufail Danish vs. Deputy Director FIA reported as 1991 SCMR 1841; Mirza Muhammad Saeed vs. Shahabudin reported as PLD 1983 SC 385; Ch Muhammad Sharif vs. Muhammad Ali Khan reported as 1975 SCMR 259.
[7]WAPDA vs. Aurangzeb reported as 1988 SCMR 1354.
[8]Lt. Col. Nasir Malik vs. ADJ Lahore & Others reported as 2016 SCMR 1821; Qamar Jahan vs. United Liner Agencies reported as 2004 PLC 155.