1. SHABBIR AHMED, J.---This order shall dispose of the application (C.M.A. No.438/2000) for condonation of delay in filing the appeal under the provisions of section 5 of the Limitation Act. In supporting affidavit of Muhammad Iqbal, the ground taken for condonation of delay, precisely is that notice for announcement of judgment was not given to the appellant and their counsel and on 28-8-1999, they came to know that the judgment was announced on 7-5-1999. The narration is as follows:-- "That on 3-12-1998 arguments were heard by the Court and the judgment was reserved. The case was listed again on 15-2-1999 for the same purpose and the judgment was again reserved. That on 7-5-1999, the learned Single Judge was pleased to pronounce judgment in the suit without giving any notice for the pronouncement of judgment and without the case being listed in regular cause list for that day. (The cause list dated 7-5-1999 was annexed with supporting affidavit). The judgment and decree passed on 7-5-1999 never came to his notice and to the notice of the appellants or their Advocate. Mr. Muhammad Naeem, appellant's Advocate enquired about the matter on a couple of occasions from him, which he could neither locate in the office of the Court at the relevant branch or in the chamber. After vacations on or about 28-8-1999, he again enquired from the branch and to his great surprise he was informed that the suit was disposed of earlier on 7-5-1999. He immediately informed Mr. Muhammad Naeem and also applied for certified copy of the judgment and decree immediately. The delay in filing the appeal thus occurred in the circumstance which were completely beyond the control of the appellants and their Advocate who never became aware of the date of the judgment and decree passed in the said Suit No.601/1987 and he informed that on 26-8-1999 and unless the delay in filing appeal is condoned the appellants will be seriously prejudiced and will suffer irreparable loss."
2. ' The respondent opposed the application by filing counter-affidavit of Mst. Asghari Begum, the respondent wherein it was pleaded that the assertions made in the supporting affidavit are contrary to the facts and as such are devoid of any force. The application is ill-founded merits dismissal. It was maintained that notice was given for the announcement of judgment through additional cause list of 7-5-1999, wherein the Suit No.601/1987 was shown for announcement of judgment at Sr. No.4 on page No.2 of the list before Mr. Justice Shaiq Usmani (as he then was). (The copy of the additional cause list dated 7-5-1999 was enclosed).
3. ' Additional affidavit was also filed by Mr. Muhammad Naeem, appellant's Advocate, reiterating the facts stated by Muhammad Iqbal in supporting affidavit. It was further averred by him that in counter-affidavit, filed by the respondent, it was pointed out that the Suit No.601 of 1987 was listed in the additional cause list of pronouncement of judgment on 7-5-1999, which was neither received in the office of Surridge and Beecheno nor was received by him and he never came to know that the learned Single Judge had pronounced judgment in the matter. It was further averred that the learned Judge shortly thereafter relinquished his office and the said suit remained untraceable. On frequent inquires made by him, the Court Clerk informed him that the file, of the case has not been received in the office and was not available. But he continued to remind his Court Clerk at least twice during vacations to trace the case and find out its status. The Court Cletk made inquiries during vacations but could not find the whereabouts of the case. He however, again made inquiries from the office on 28-8-1999 when he was informed by the Court Clerk that the suit had already been disposed of and decreed on 7-5-1999. He informed the appellant and took steps immediately to obtain certified copies of the judgment and decree and filed the appeal on 16-9-1999 even before the issuance of certified copies.
4. ' In rejoinder, the same fact was stated by Muhammad Iqbal, Court Clerk that the additional cause list of 7-5-1999 was not received in the office of Surridge and Beechen.
5. ' We have heard Mr. Muhammad Naeem, learned counsel for the appellant and Mr. Nasir Maqsood, learned counsel for the respondent.
6. ' Before dilating their respective contentions, it would be proper to recapitulate the provisions of section 5 of the Limitation. Act. Section 5 reads as follows:-- "(5) Extension of period in certain cases. Any appeal or application for a revision or a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefcr, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period."
7. ' The reading of the above provision would show that the appellant seeking the indulgence of the Court in condoning the delay in filing the appeal after the period of limitation prescribed, has to demonstrate `sufficient cause'.
8. ' Learned counsel for the appellant contended before us that the judgment was pronounced by the learned Single Judge without notice to the appellants or their counsel as the case was not listed in the daily cause list. His further contention was that the additional cause list was not received by him or in the office of Surridge and Beecheno, and thus according to him the judgment was pronounced contrary to the requirement of sub-rule(2) of rule 1 of Order XX, C.P.C. Which enjoins upon the Court to pronounce the judgment in open Court, after case has been heard either at once or on some future date not exceeding 30 days with due notice to the parties or their counsel. In support of his contentions, he referred the case of Fatima Bibi v. Noor Bibi (PLD 1951 Lahore 147), Full Bench judgment, wherein the delay in filing' of the appeal was condoned as the counsel for the plaintiff was not informed about the announcement of judgment. The observations read as follows:-- "It appears that the judgment was reversed in the lower Appellate Court after hearing the arguments but the result was never communicated to both the parties or their counsel, although there is endorsement towards the end of the judgment dated 27-10-1948 that the parties counsel should be informed. Apparently, counsel for the defendant only was informed but not the counsel for the plaintiff. An affidavit has been filed in this Court to the effect that the plaintiffs only came to know of the lower Appellate Court decision in the mid of January, 1949, through a Clerk of Additional District Judge office. In these circumstances, there is in my opinion sufficient ground for extension of time under section 5 of the Limitation Act and I accordingly extend the time."
9. ' Learned counsel for the appellant also referred the view taken by the learned Single Judge of this Court, wherein the Rent Appeal dismissed for non-prosecution was restored in Anwar Muhammad v. Inamur Rahim Khan (1983 CLC 376), on the ground that through oversight he (counsel) missed the case in the daily cause list and therefore he could not attend the case on the date of hearing.
10. Such statement of the Advocate on oath was not denied. The appeal was re-admitted with the observations that 'although this conduct of the Advocate was somewhat 'negligent' but it was not contumacious and nonappearance on the date of hearing was though bona fide mistake and his nonappearance was neither intentional nor deliberate'.
11. We may state that 'negligence' is not a sufficient cause for condonation of delay in filing the appeal.
12. ' On the other hand, learned counsel for the respondent vehemently opposed the application for condonation of delay by maintaining that the appellant has to explain each day's delay as a valuable right has accrued in favour of the respondent, same cannot be withdrawn. His further contention was that the provisions of rule 1 of Order XX, C.P.C. Is not applicable to the proceedings in High Court by virtue of rule 3 of Order XLIX, C.P.C. Sub-rule (3) excludes, inter alia, the application of rules to 8 of Order XX, C.P.C. It may be noted that the Order XLIX originally was applicable to the 'chartered High Courts' but the word 'Chartered' was omitted by the Central Law (Statute Reform)
13. Ordinance, 1960 (XX of 1960). After the deletion of word 'chartered', the provisions of Order XX, rule 1, C.P.C. Are inapplicable to the proceedings of this Court.
14. ' Learned counsel for the respondent also argued that the appellant being negligent, the delay cannot be condoned in terms of section 5 of the Limitation Act. In support of his contention, he referred two judgments; (1) Mustafa v. Settlement Commissioner, Bahawalpur Division, Bahawalpur (1974 SCMR 104) and (2) Muhammad Nawaz and 3 others v. Mst. Sakina Bibi and 3 others (1974 SCMR 223). In first case, the ground for condonation of delay was that intimation letter sent by petitioner's counsel has not reached to him due to the disturbed conditions in the District. In second case, plea taken was that his counsel was negligent in informing them about the decision.
15. Such grounds were not found to be 'sufficient cause' for condonation of delay.
16. ' In both cases, the judgment was announced in presence of the counsel. Therefore the two cases are inapt to the facts of the present case.
17. ' No doubt, the provisions of rule 1 of Order XX, C.P.C. Are not applicable to this Court.
18. Notwithstanding the non-application of rule 1 of Order XX, C.P.C., it is long-standing practice of this Court that the counsel are noticed for announcement of orders/judgments by listing of cases in cause list, in accordance with provision of rule 28 of Sindh. Chief Court (O.S.) Rules. The Sindh Chief Court (O.S) Rules override the rule contained in First Schedule to the Code by virtue of rule 7 of the said rules. In cases where the parties are being represented by counsel, the cases are listed in cause list, which is sufficient notice to the counsel or the party through counsel. In the instant case admittedly the case was not listed in the daily cause list but in additional cause list. The affidavit filed in support of the application by Mr. Muhammad Naeem, learned counsel for the appellant, has stated that the case was not listed in daily cause list and the additional cause list was not received by him nor by the office of Surridge and Beecheno, such statement on oath has not been disputed by the other side.
19. ' There is a discrepancy about the date of knowledge of pronouncement of the judgment on 28-8- 1999 or 26-8-1999. The sequence of the events suggest that date of knowledge on i.e. 26-8-1999, for the reason that the appellant applied for certified copy on 27-8-1999, subsequent to the knowledge of pronouncement and not before the pronouncement of judgment. Therefore 26-8- 1999 is taken the date of knowledge.
20. The expression 'sufficient cause' is very wide and comprehensive. What is sufficient cause within the meaning of this section is dependent upon all the circumstances of each particular case.
21. Sufficient cause' seems to mean not only those circumstances as are expressly recognized, but also those which appear to the Court to be reasonable, looking to the fact of the case. The words 'sufficient cause' should therefore be given a liberal construction, so as to advance substantial justice, when no negligence nor inaction nor want of bona fide is imputable to the appellant.
22. ' In the instant case, the ground for condonation of delay is that neither the case was listed in daily cause list nor the additional cause list dated 7-5-1999 was received by the Advocate. Such fact stated on oath has not been denied by the opposite-party. Omission to print the name of the counsel in the cause list has been held to be sufficient cause in V. Rajamani v. The Co-operative Sugars Ltd. (1983 HLR (Madras) 345), by Division Bench of Madras High Court. Non-receipt of cause list, in our view is 'sufficient cause', for condonation of delay in filing the appeal and we condone the delay till the date of knowledge i.e. 26-8-1999.
23. ' The appeal is required to be accompanied by certified copies of the judgment and decree. The application for certified copy was filed on next day viz. 27-8-1999 and copy was supplied on 4-10- 1999. Though the appeal was filed on 16-9-1999, appeal remained under office objection, which was complied with on next day viz. 5-10-1999. The appellant is also entitled for exclusion of time spent between 27-8-1999 to 4-10-1999 in obtaining the certified copies of the judgment and decree under section 12 of the Limitation Act. If any reference is required, the case of Karachi Municipal Corporation v. M/s. Karimi & Company (PLD 1967 Karachi 537) can be referred, wherein the view taken by five members of Full Bench of the Lahore High Court in Punjab Cooperative Bank Lahore v.
24. Official Liquidator (AIR 1941 Lahore 253) was followed.
25. After condonation of delay under section 5 of the Limitation Act and exclusion of the period spent in obtaining certified copies under section 12 of the Limitation Act, we are of the view that appeal is within time under Article 151 of the Limitation Act.
26. ' Resultantly, the C.M.A. No.438 of 2000 is allowed.