C .M . A. No.6182/2005 ' MIAN SAQIB NISAR, J.---Regular First Appeal, filed by the respondents against the applicant (the appellant herein), was accepted by the Lahore High Court vide judgment and decree dated 16-12- 2004. Under the law against the above, a direct appeal was competent before this Court, but for the reasons best known to him, the applicant opted otherwise and initiated civil petition for leave to appeal, in which C.M.A. No.192-L of 2005 was moved, seeking its (C.P.L.A.) conversion into an appeal.
The application came up for hearing before the Court on 9-5-2005 when the following order was passed:- "We have not been able to appreciate the conduct of the applicant for first filing a petition under Article 185(3) of the Constitution and then asking this Court to treat the same as an appeal when the petitioner could have, under the law, himself filed an appeal. This C.M.A. No.192-L/2005 is, therefore, dismissed. The petitioner may, if he so chooses, file an appeal which is competent in the matter-subject to all just exceptions." (emphasis supplied)
2. The applicant never sought the review of the above order, rather filed the noted direct appeal 6- 6-2005 in which the instant application under Order V Rule 2(14) of the Supreme Court Rules, 1980 read with Section 5 of the Limitation Act seeking condonation of delay, has been moved. In paragraph 2 of the application, it has been unequivocally admitted that "since the amount claimed in suit was more than Rs.50,000 i.e. Rs.83,00,000 direct appeal was competent under Article 185(2)
(d)(e) of the Constitution (1973). Since, the direct appeal was barred by approximately 28 days, therefore, C.P.L.A. Was filed and all these facts were narrated in Para No.11 of the said Petition. It was prayed therein that if the Court found that direct appeal was competent, the C.P.L.A. Be treated as direct appeal and delay in filing such appeal, if any, be graciously condoned". From the order of this Court dated 9-5-2005, reproduced above, it is clear that the request of the applicant to allow the conversion of the C.P.L.A. Into an appeal or treat it as such was rejected. It is not mentioned in the order that the applicant may be entitled to seek the condonation of the delay, if the direct appeal is so filed, rather the initiation thereof was made subject to all just exceptions. Be that as it may, in the instant application, no specific reason has been given or sufficient cause has been set out on account of which the condonation of delay is being hereby sought. Rather after narrating the facts, as given above, it is stated, in that such circumstances, the delay in filing the direct appeal was neither intentional nor deliberate and has occasioned due to certain circumstances beyond the control of the applicant. However, such circumstances which prevented and precluded the applicant from filing the direct appeal within the prescribed period of limitation have neither been stated nor explained, which is a vital and conspicuous omission in this regard.
3. The applicant in his plaint himself has fixed the value of the suit as Rs.8.3 millions and the decree to the tune of the said amount was passed by the trial Court in his favour, undoubtedly in the situation, when the decree of the trial Court was reversed by the High Court, the proper remedy available to the applicant was to file direct appeal before this Court in terms of Article 185(2)(d)(e) of the Constitution and that too within the prescribed period of limitation. It is not the case of the applicant that the needful could not be done on account of any wrong legal advice rendered to him. Now when the applicant was well aware as admitted in para. 2 of the noted application that the judgment and decree of the trial Court had been set aside by the appellate Court (the High Court); the pecuniary jurisdiction of the lis was above Rs.50,000 to be precise more than 8 millions and in case of reversal of the decision of the trial Court, the direct appeal was the only proper remedy of the applicant then there must be some good reasons or sufficient cause forthcoming which prevented the applicant to avail the proper remedy and he got misdirected but there are/is none. The fact that the applicant himself for unexplained reasons allowed his appeal to become time barred, thus filed the C.P.L.A., in which his request for the conversion etc. Was specifically disallowed, can by no stretch of any factual or legal imagination be considered a ground for the condonation of delay. We are not convinced, if the case of the applicant is covered by the cases reported as Zulfiqar and others v. Shandat Khan (PLD 2007 SC 582) as in that case the Court for certain reasons allowed the conversion of C.P.L.A. Into an appeal or treated alike, whereas in the present matter the situation is converse, due to the order dated 9-5-2005 whereby the Court declined the request of conversion, rather it was observed that the direct appeal so initiated by the applicant shall be subject to all just exceptions (emphasis supplied). This order as mentioned above has attained finality, therefore it cannot be directly or indirectly revisited. The question thus now to be resolved is not about the conversion of the C.P.L.A. Into an appeal or vis-a-viz, but whether for the un-disclosed, unexplained and abstract reasons, which the applicant still has described in this application as beyond his control (emphasis supplied), the delay can be condoned. In my considered view, this in the given circumstances of the case is not permissible, as it shall amount in an indirect manner, to provide vantage and gain to the delinquent party for its unexplained inaction in approaching this Court in proper remedy, which he could not achieve in the earlier C.P.L.A., (see order dated 9-5-2005), over the other side which has earned a right for such lapse of the applicant; the other judgment reported as Chairman, N.-W.F.P. Forest Development Corporation and others v. Khurshid Anwar Khan and others (1992 SCM R 1202) cited by the applicant's counsel is also inapt to the present case and is distinguishable on its own facts.
4. During the course of arguments, learned counsel for the applicant pointed out that the R.F.A.
When pending before the High Court was dismissed for non prosecution which was illegally restored by the Court after the lapse of about 07 months. This order has been challenged by the applicant through a separate C.P.L.A., which is presently pending before this Court, thus, in view of the noted position, the applicant is entitled to the condonation of delay. We are afraid that neither this has been a ground set out in the application nor this can be considered as a sufficient cause for the condonation of delay in filing of present appeal. The pending C.P.L.A. Has no nexus to the impugned judgment and decree or the limitation in which the appeal had to be filed before this Court.
5. Considering all the facts and circumstances, particularly the lapse of the applicant to approach this Court within the prescribed period of limitation by filing the direct appeal; the dismissal of his C.M.A.192-L/2005 by this Court vide order dated 9-5-2005 disallowing the applicant's request for the conversion of C.P.L.A. Into an appeal; no direction was issued that the time should be condoned if the direct appeal is filed by the applicant, rather the applicant's choice in this regard was subjected to all just exceptions; no mention of any sufficient cause in the application for the condonation of delay which is evasive and vague; no explanation has been given why the applicant waited till 4-6-2005 for filing this appeal after the order dated 9-5-2005 as the appeal was not promptly and immediately instituted and there is no explanation for each and every day's delay in this behalf. We do not find this to be a fit case where discretion for the condonation of delay of 142 days should be exercised.
6. In the light of what has been stated above, this application being unfounded is dismissed with the result that the civil appeal also stands dismissed as being barred by time.