' IRFAN SAADAT KHAN, J.---This IInd Appeal has been filed against the order passed by the IIIrd Additional District Judge, Malir, Karachi, dated 16-1-2013.
2. Briefly stated facts of the case are that the respondent filed a Suit bearing No,1/2004 for possession and mesne profit in respect of plot No,G-2/1, Survey No,VIII-G-12-278, Malir, Karachi, comprising of 933 sq. Yds. It was alleged in the said suit that the appellant had grabbed an area of 333 sq yds. By raising a boundary wall. The said suit proceeded before the 1st Senior Civil Judge, Malir, who through her detailed judgment dated 30-7-2010 allowed the suit by observing that since the respondent had ample documentary evidences in their possession that the property was leased out to them hence they are entitled to recover the possession of an area of 333 sq. Yds.
From the respondent. It was also observed by the learned Judge that the respondent is also entitled to receive the mesne profits from the present appellant. Being aggrieved with the said judgment and decree an appeal bearing No,50/2011 was filed and the learned Judge vide her 'order dated 16-1-2013 dismissed the appeal by observing that the said appeal, filed by the appellant, was hopelessly time-barred and the reason given for filing a belated appeal was neither found to be plausible nor reasonable. It is against this order that the present appeal has been filed.
3. Muhammad Nouman Jamali, Advocate has appeared on behalf of the appellant and submitted that the learned Judge was not justified in not considering the application filed under section 5 of the Limitation Act (the Act). Learned counsel submitted that there were plausible reasons for condonation of delay in filing the appeal, which had either been ignored or not been considered by the learned Judge in their true perspective. While elaborating his view point he submitted that it is the duty of the Court to consider the application for condonation of delay filed by the appellant. He submitted that an application under section 5 of the Act was duly filed by the appellant, which has not been considered on its merits by the learned Judge and in a very cursory manner not only the said application was dismissed but appeal too was dismissed. He submitted, that not only the affidavit of the appellant but also that of the advocate of the appellant were furnished, which have not been considered by the Court. He submitted that the counsel for the appellant went to his native place and remained there from 22-5-2010 to 4-8-2010 with the result that the said appeal could not be filed in time. He submitted that since the factors went beyond the control of the appellant hence the delay occurred, which the appellate Court should have considered and the delay ought to be condoned. Learned counsel further submitted that the then counsel of the appellant in fact was responsible for the delay and the appellant should not be penalized for an act committed by the counsel. He further submitted that the order passed by the trial Court was void ab initio and it is a settled proposition of law that in respect of void order no limitation runs. He further submitted that even if, for argument sake, it is assumed that a belated appeal was filed before the appellate Court but as the order of the trial Court was void, hence, keeping in view this factor, the appellate Court should have entertained the appeal and have disposed of the same on merits rather than summarily rejecting the same by observing that a time barred appeal has been filed. In support of his above contentions the learned counsel has relied upon the decision in the case of Muhammad Siddique and 8 others v. Hameedullah and 5 others (1993 SCM R 451).
4. I have heard the learned counsel, at considerable length, perused the record, the law and the decision relied upon.
5. It is seen from the record that the suit for possession and mesne profits was filed by the respondent and the decision was given on 30-7-2010 and the decree in this regard was prepared on 9-8-2010. As per the averments of the appellant his counsel went to his native place Chitral from 22-5-2010 and came back on 4-8-2010, however the application for certified copy was given as late as in the month of February 2011 and thereafter the appeal was filed. The affidavit of the appellant reveals that he has thrown all the burden upon his counsel for the delay caused in filing the appeal and in his affidavit has stated that the delay was caused because of the attitude of the counsel for the appellant, who did not inform him about the date of the decision and the decree and when the counsel informed the appellant about the decision in February, 2011, immediately the appeal was filed. Whereas, the affidavit of the counsel reveals that he has shifted the entire burden upon his Clerk by mentioning that his Clerk namely Ghulam Sarwar was looking after the matter, who did not inform him about the same and when he came to know he applied Tor the certified copy and filed the appeal. In the affidavit of the counsel it has categorically been mentioned that his. Clerk informed him that some other advocate had filed power in the instant case that is why he did not attend the case. He also mentioned in the affidavit that in some other case bearing some other number power was filed by some other advocate but his Clerk, by mistake, informed him that his power has been superseded in the present suit that is why, he did not attend the case. He has further mentioned in the said affidavit that his Clerk is a student and at present is not in Karachi and is not hi-contact with him. Learned counsel has further mentioned that after 22-5-2010 he had gone to his native village Chitral where there is no Phone facility. Learned counsel has further mentioned that his friend advocate was looking after his cases in his absence but since the instant case was not mentioned in the diary that is why his friend advocate could not attend the case.
6. The respondent in this regard has also submitted his counter affidavit wherein all the above reasons given for condonation of delay have been vehemently refuted.
7. The appellate Court also has considered the affidavits of both the sides and thereafter came to the conclusion that the appellant had failed to satisfy the huge gap of delay in filing the appeal and thereafter cogent reasons dismissed the appeal as hopelessly time barred 8. In my view, before giving a final verdict, the following questions arise in the instant case:--
(1) When admittedly the counsel came back on 4-8-2010 and decree was passed on 9-8-2010, which is the date after his arrival, what efforts were made by him to enquire about the case?
(2) When admittedly the counsel came back in August, 2010, why he applied for certified copy as late as in February 2011, of which no plausible explanation is available?
(3) When the appellant was in knowledge that his counsel has gone to his native place, what efforts were made by him in pursuing the matter? It appears that the appellant had remained indolent in pursuing the matter when admittedly his counsel had gone to his native place, he should have been remained vigilant to pursue the matter. No such effort appears to have been made by the appellant in this regard either for pursing the matter himself or far making alternate arrangement.
(4) How many times had the appellant visited the Court during the period when his counsel was out of station?
(5) How many times had the appellant contacted his counsel on his mobile phone about the progress of the case, when admittedly phone facility was not available in the village?
(6) How many times the appellant had contacted the Clerk of his counsel for enquiring about the development in the case, when admittedly his counsel was not in Karachi?
(7) How many times had the counsel contacted his Clerk, who was looking after the case in his absence, to enquire about the progress of his eases, when admittedly he came back in August 2010?
(8) What efforts were mode by the counsel to enquire whether vakalatnama in the instant case, if any, had been filed by some other counsel or not?
(9) Why the counsel had remained so lethargic in relying upon his Court Clerk and instead of making efforts by himself had left the entire matters to be dealt by his Court Clerk?
(10) Why no affidavit of the aforesaid Court Clerk has been filed before the appellate Court?
(11) Why no affidavit of his friend advocate has been filed by the counsel for the appellant before the appellate Court?
(12) Whether any application far general adjournment was given by the counsel for the appellant when he was out of station?
9. Above are the questions the answers to which are not available with the record. It appears that the appellant had thrown the whole burden upon his counsel who in turn had shifted the same to his Court Clerk.
10. It is a settled proposition of law that law helps the vigilant and not the indolent. While filing an application for condonation of delay under section 5 of the Act each day's delay has to be explained, as after the expiry of limitation a vested right is created in favour of the other side and once limitation starts running no subsequent event could stop the same. Condonation of the delay is always a prerogative of the Court which has to be exercised rationally and judicially. If the order passed by an authority is neither perverse nor tainted with malice but based on sound reasons for rejecting the application for condonation of delay, this order, in my view, could not be interfered with. The Court is under a bounden duty to dismiss the suit, appeal or application, if the same is found to be barred by limitation that is why the law framers had used the word "shall" in section 3 of the Act, however, there are certain exceptions to this law as well.
11. The delays are normally condoned where a plausible explanation B constituting a sufficient cause for not approaching the Court within time has been mentioned. The assertions made in the affidavit by the appellant had been strongly controverted by filing the objections counter affidavit etc. By the respondent before the appellate-Court. It was held by the Hon'ble Supreme Court of Pakistan in the decision given in the case of Ali Muhammad v. Chief Settlement Commissioner (2001 SCM R 1822) that "because limitation creates a right in favour of one of the parties, therefore, delay in filing of proceedings cannot be condoned lightly unless it is shown that there are sufficient reasons to do so or the impugned order is coram non judice or is a void order for any strong legal reason delay cannot be condoned". I am afraid that none of the said stipulations has been pointed out by the learned counsel for the appellant. Not knowing about the decision given in the instant case could only be attributed as slackness on the part of the appellant. Though in section 5 of the Act the law makers had used the word "sufficient cause" but these words are not be confused with the words "wilful or intentional". "Sufficient cause" has to be interpreted keeping in view the facts and circumstances of each case, as what is sufficient cause in one case may not be in other case.
As no two sun rise are same so as the peculiar facts and circumstances of each case. It is seen from the study of some cases that delay of even one day was not condoned, whereas in some cases delay comprising of years had been excused, depending upon the facts and Circumstances of the case.
12. Apropos the plea of wrong advice is concerned, suffice it to say that no lease could be given to the appellant on a wrong advice and the only remedy, in my view, available with him is to file a suit for damages against the counsel for his negligence, if any. Reference in this regard may be made to the decisions in the cases of Mirza Muhammad Saeed v. Shahabuddin and 8 others (PLD 1983 SC 385, Nek Muhammad v. A.C. Jehlum (1986 SCM R 1493) and WAPDA through its Chairman, and 4 others v. Karam Din (2005 YLR 341).
13. It is also a settled proposition of law that negligence of counsel would not constitute sufficient ground for condonation of delay. In this regard I am fortified with a decision given by the Hon'ble Supreme Court in the case of Jhanda v. Maqbool Hussain and others (1981 SCM R 126). It is also a trite proposition of law that delay defeats the equity hence if a delay occurred in a case as stated above, it creates a vested right in favour of the other side, which cannot be taken away lightly.
Reference in this respect may be made to the decision in the case of Muhammad Nawaz and 3 others v. Sakina Bihi and 3 others (1974 SCM R 223). In an another decision given by the Hon'ble.
Supreme Court of Pakistan in the case of Mustafa v. Settlement Commissioner Bahwalpur (1974 SCM R 104) it was observed that if the petitioner has been negligent in not keeping himself informed about the fate of his case no grievance can be made on this account by him. So far as shifting of burden of responsibility on the.Clerk is concerned the same is also not a plausible ground for condonation of delay. Reference in this behalf may be made to the decision of the Hon'ble Supreme Court in the case of Collector Land Acquisition v. Fazal-ur-Rehman (2009 SCM R 767) wherein it has been held as under:-- "Ground for condonation of delay mentioned was that clerk of the counsel far the appellants did not bring this fact to his knowledge and that later the counsel came to know that the file was lying on the record of the disposed of cases which was procured on 3-4-2003. We find that application for condonation of delay was deficient in many respects. Delay from 3-4-2000 to 10-6-2000 was not counted for. It was also for the appellants to have remained in contact with their counsel to ascertain the result of their appeal which was not done in this case. The High Court has rightly dismissed the appeal as barred by time".
14. With regard to the settled proposition of law that while filing the limitation application each day's delay has to be explained, one can take guidance from the decision in the case of Commissioner of Income Tax v. Rais Pir Ahmad Khan (1981 SCM R 37).
15. The decision relied upon by the learned counsel is found to be quite distinguishable as in that case the counsel appeared unauthorizedly on the date fixed for hearing and his presence was noted by the Court due to some confusion. The record reflected that since the case was transferred, no notice was received by the appellant from the transferee Court. The Hon'ble apex Court, by looking at the facts and circumstances of the case, set aside the order of the High Court and remanded the matter back to the learned Additional District Judge for disposal of application for restoration according to the merits whereas in the case in hand such is not the position.
16. The accumulative perusal of the facts of the case reveals that firstly a belated appeal has been filed and secondly no plausible explanation and sufficient reason had been given for such delay, as elaborately discussed above. Hence, in my view, the learned appellate Court was fully justified in dismissing the application under section 5 of the Act as well as appeal filed by the appellant. The instant appeal is, therefore, dismissed in limine along with the applications.
' Above are the reasons of my short order. in limine.