' SYED MUHAMMAD FAROOQ SHAH, J.--- Applicants above named assailed the impugned order dated 17-9-2011 passed by learned Additional District Judge, Umerkot in a Civil Appeal No, Nil of 2011, passed on application under section 5 of Limitation Act, whereby appeal preferred by the applicants, against judgment dated 31-3-2011 by the learned trial Court, in Suit No,74 of 2009 (Old)- 157 of 2010 (New) was dismissed as barred by time in light of citation PLD 2006 Karachi 126. The learned appellate Court observed that no reasonable cause for condonation of delay was shown, merely saying that appellants were residing at Khyber Pakhtoon Khwah is not the reasonable cause for condonation of delay of more than four months period.
2. Perusal of the record transpires that during first round, plaint of Suit No,74 of 2009, filed by the respondent No,1 had been rejected under Order VII, Rule 11, C.P.C. By an order dated 9-9-2010 and Appeal No,15 of 2010 preferred against the mentioned order was allowed by judgment dated 6-11- 2010. In second round, the judgment was delivered by learned trial Court on merits, whereby suit was decreed and appeal filed by the applicants was dismissed hence the present revision application has been filed against the concurrent findings of both learned lower Courts.
3. Mr. Ejaz Ali Hakro, representing the applicants argued at length while elaborating chequerred history of the case from its beginning though the only point for determination involved before this Court is that as to whether the learned appellate Court has rightly or wrongly dismissed the application filed under section 5 of Limitation Act and Civil Appeal as well.
4. On the other hand, Mr. Abdul Aziz Memon, on concluding arguments on the point of limitation, has also responded the arguments advanced by Mr. Ejaz Ali Hakro on merits of the case.
5. In my humble view, it would be sheer wastage of time to discuss the merits/demerits of the appeal and suit as well, particularly the impugned order is pertaining to question as to whether the appeal is time-barred by more than four months or not.
6. The grounds of instant revision application have been reiterated by the learned counsel for the applicant and stated that on the date of announcement of judgment on 11-11-2010, both the parties were absent and the order was not passed in their presence as they had no notice of the date of hearing before the trial Court and the learned trial Court without service of notice illegally proceeded ex parte while passing the decree. The learned Advocate for the applicant much emphasized on merits of the case and stated that learned lower appellate Court has illegally relied upon PLD 2006 Karachi 126 which is not applicable to the present suit as the judgment of the trial Court was erroneous and the appeal lies against such judgment, even it was found time-barred appeal.
7. I have taken into consideration worthy arguments advanced by learned advocates for the respective parties and also gone through the case-law relied upon them. It is now an admitted fact that appeal filed before the learned lower appellate Court was obviously time-barred under section 5 of Limitation Act and the discretion has to be exercised judiciously and not arbitrarily where sufficient cause has not been shown for filing the appeal at belated stage, after about four months period. It is settled that each and every day was to be explained with justification to make out the case for condonation of delay.
8. In Nazakat Ali v. WAPDA (2004 SCMR 145), the honourable apex Court held that "law would support vigilant and not indolent".
9. In the case of Khan Sahib Sher Muhammad Mir v. Islamic Republic of Pakistan (1987 SCMR 1992), the honourable apex Court held (in the case of Service Tribuna) that "while dismissing appeal as time-barred, Service Tribunal made remarks about merits of the case and in peculiar circumstances of the case, any remarks about merits of the case should not have been made", therefore in light of the mentioned citations, when an appeal is required to be dismissed on limitation, its merits need not to be discussed.
10. In the instant revision application no sufficient reason or plausible cause for condonation of delay in filing the appeal at belated stage of four months has been satisfactorily explained excepting that notice of date of announcement of judgment has not been served upon the parties which was not necessary requirement of the law as duty cast upon the party and his counsel is to be vigilant to pursue their case, therefore, apparently, there is no illegality or irregularity found in the order of Court below refusing condonation of delay. Revisional jurisdiction, obviously cannot be invoked merely on procedural defects or technical defect for interfering with the order which otherwise are legal and justified as held in the case of Gul Baran and others v. Abdul Zahir (1988 CLC 65).
11. In the case of Messrs Emirates Airlines v. Dr. Professor Haroon Ahmed and others (PLD 2006 Karachi 126), a Division Bench of this Court held as under:--- "We have taken into consideration arguments advanced by the learned Advocate for the respective parties and also gone through the case-law relied upon by them. By section 5 of the Limitation Act legislature gives exception to the party who for sufficient cause could not approach Court within the time fixed by law, and being an exception clause, the same has to construe liberally. The expression "sufficient cause" used in section 5 of the Limitation Act should be given liberal construction so as to advance substantial justice. However, discretion given has to be exercised judicially and not arbitrarily. Section 3 of the Limitation Act provides that subject to sections 4 to 25 every suit instituted, appeal preferred and application made after the period of limitation prescribed therefore by the First Schedule shall be dismissed even if limitation has not been set up as defence. It is by now settled that the party who is seeking indulgence of Court for condonation of delay has to explain satisfactorily each and every day of delay and further that the delay has been caused by the reason beyond his control."
12. In the case of Kalim-ur-Rehman v. Mst. Hashiman and others (2009 YLR 1846) Karachi, it was held that "delay of each and every day was to be explained with justification to make out the case for condonation of delay".
13. In the case of Muhammad Islam v. Inspector-General of Police Islamabad (2011 SCMR 8), it was held that "question of limitation cannot be considered a "technicality" simplicitor it has got its own "significance and would have substantial bearing on merits of the case." Reliance has also been placed on the case of Muhammad Sami v. Additional District Judge (2007 SCMR 621); NED University of Engineering and Technology v. Ashfaq Hussain Shah (2006 SCMR 453) and in State Bank of Pakistan v. Khyber Zaman (2004 SCMR 1426), their lordships held at relevant pages 10 and 11 that the law of limitation must be followed strictly and reliance is being placed on, Chairman, District Screening Committee, Lahore and another v. Sharif Ahmed Hashmi (PLD 1976 SC 258), S. Sharif Ahmed Hashmi v. Chairman, Screening Committee Lahore and another (1978 SCMR 367), Yousaf Ali v. Muhammad Aslam Zia (PLD 1958 SC (Pak) 104), Punjab Province v. The Federation of Pakistan (PLD 1956 FC 72) and Fazal Elahi Siddiqi v. Pakistan (PLD 1990 SC 692).
14. Suffice to say that in view of the facts and circumstances of the case and in light of the aforementioned citations, I reached at the conclusion that there is absolutely no error, illegality or impropriety, in the conclusion arrived at by the learned appellate Court, particularly revisional jurisdiction, obviously cannot be invoked merely on procedural defects or technical defects, for interfering with the order which otherwise is proper, legal and justified.
15. For the foregoing reasons, the impugned order is upheld, resultantly, the revision application is dismissed with no order as to costs.