' MEHMOOD MAQBOOL BAJWA, J. --- Through present petition, prayer has been made for condonation of seven days' delay in preferring service appeal calling in dated 24th of August, 2009 whereby representation of appellant -appellant for grant of proforma promotion as Senior Civil Judge was declined by the competent authority.
2. Reasons for delay in filing the appeal have been set out in paras (3) and (4) of the Civil Miscellaneous, according to which delay was neither intentional nor deliberate. -appellant is a patient of "gout" and during Eid vacation, he suffered from swelling of joints due to which appeal could not be filed within the period of limitation. In para (5) of the petition, it has been asserted that after recovery from illness, appeal was filed by the counsel without wastage of time.
3. Seeking condonation of delay, highlighting the nature of illness, banking upon an affidavit sworn by learned counsel for the appellant -appellant, reiterating the contents of paras (3) to (5) of the petition, it was contended that that there is a sufficient cause for condonation of delay. Further submitted that if delay is not condoned, appellant -appellant shall suffer irreparable loss.
' To substantiate the contentions, help was sought from the dictum laid down in "DEFENCE HOUSING AUTHORITY LAHORE v. Lt. Col. (R) MUHAMMAD ASLAM" (2007 YLR 135), "AL-WAQAR CORPORATION v.
RICE EXPORT CORPORATION and another" (2011 M LD 266), "Mrs. ZUBAIDA BEGUM v. Mrs. S.T. NAQVI"
(1986 SCM R 261), "HASSAN ABBAS v. 1ST ADDITIONAL DISTRICT AND SESSIONS JUDGE and 2 others"
(2014 YLR 2042) and "MUHAMMAD MALIK v. CHAIRMAN, MIRPUR DEVELOPMENT AUTHORITY, MIRPUR and 9 others" (1997 CLC 480).
4. Controverting the arguments, it was submitted by learned counsel for the respondent that illness highlighted in the petition cannot be recognized as a ground to grant premium. Further contended that each day's delay was to be explained but the application is totally silent in this regard. Argued that in the circumstances, indulgence cannot be shown in favour of appellant -appellant.
5. Provisions of Section 5 of The Limitation Act, 1908 (IX of 1908) (hereinafter called "Act IX of 1908") are applicable to the appeals in view of Section 7 of The Punjab Subordinate Judiciary Service Tribunal Act, 1991 (XII of 1991).
6. The term "sufficient cause" has not been defined in The Act IX of 1908 and each case has to be decided keeping in view its own facts and circumstances.
' However, the expression under reference suggests a cause beyond control of the party. It rules out inaction, culpable slackness and negligence. Want of due care if appears would be sufficient to non-suit the party seeking indulgence.
7. Dealing with the expression, the apex Court held in "ATA ULLAH MALIK v. THE CUSTODIAN EVACUEE PROPERTY, WEST PAKISTAN, ETC." (PLD 1964 S.C. 236) that sufficient cause shall be construed as cause beyond the control of a party. Referring to the provisions of Order IX, Rules 3 & 8 of The Code of Civil Procedure, 1908, it was further held that the Courts had been lenient and had been condoning some negligence i,e, negligence to the extent to which it is regarded as human though they never condoned gross negligence. Rule of law enunciated in the Report was endorsed in "ABDUL GHANI V. GHULAM SARWAR" (PLD 1977 S.C. 102).
In "REHMAT BIB!, ETC. v. GHAZANFAR HUSSAIN" (NLR 1983 SCJ 336) while dealing with the expression, the Supreme Court of Azad Jammu and Kashmir held that sufficient cause means a genuine cause which is beyond the control of the party or a cause which is unavoidable despite care and attention.
' In "JHANDA v. MAQBOOL HUSSAIN, ETC." (1981 SCM R 126) and "Sheikh MUHAMMAD SALEEM v. FAIZ AHMAD" (PLD 2003 Supreme Court 628), it was held that a cause in order to treat it as sufficient cause must rule out element of negligence and carelessness.
8. In order to get benefit of Section 5 of The Act IX of 1908, it is also the duty of the party seeking premium to explain each day's delay after expiry of period of appeal. Reference may be made to "ATA ULLAH MALIK v. THE CUSTODIAN EVACUEE PROPERTY, WEST PAKISTAN AND KARACHI, ETC." (PLD 1964 Supreme Court 236), "Mst. SIRAJUN-MUNIRA v. PAKISTAN through Assistant Deputy Director- General (Admn.), Islamabad" (1998 SCM R 785), "Mian ABDUL RAHIM SETHI and others v. FEDERATION OF PAKISTAN through Minister of Defence and another" (2000 SCM R 1197), "Messrs TRIBAL FRIENDS CO. v. Province OF BALOCHISTAN" (2002 SCM R 1903) and "Sheikh MUHAMMAD SALEEM v. FAIZ AHMAD"
9. Keeping in view the above yardstick, now contentions raised by learned counsel for the parties are to be examined.
10. As referred earlier, it is the case of appellant that learned counsel engaged by him is spring from "gout" and during Eid vacation, he suffered from swelling of joints and as such, appeal could not be filed within the period of limitation.
"Gout" is hereditary meta-bolic disease that is a form of acute arthritis and is marked by inflammation of the joints. In the disease, joints affected may be at any location but gout usually begins in the knee or foot."
11. Though nothing has been placed on record in the form of any proof that counsel for the appellant was suffering from gout but as rightly pointed out by learned counsel for the appellant that he has sworn an affidavit disclosing his disease and in the absence of any counter-affidavit, same has to be respected.
' As no counter affidavit has been filed on behalf of respondent, therefore, no other evidence is required to substantiate the contention of learned counsel for the appellant regarding nature of ailment with which he was suffering.
' However, the fact by itself would not be sufficient to grant premium to the appellant for two-fold reasons.
' According to para (4) of the application and affidavit, counsel for the appellant suffered swelling of joints during Eid vacation. Contents of the application as well as affidavit are totally silent regarding number of Eid holidays and commencement of same.
' Perusal of the calendar for the year 2009 suggests that 21st and 22nd of September, 2009 were declared gazetted holidays for Eid-ul-Fitr while appeal was preferred on 2n of October, 2009 bearing Diary No, 24.
' It is further to be noted that perusal of contents of the memorandum of appeal reveals that appeal was ready for filing prior to Eid-ul-Fitr holidays as is evident from the date of attestation of affidavits appended to substantiate the contents of memorandum of appeal and C.M. No, 1 of 2009.
' Affidavits were sworn before the Oath Commissioner, Lahore by the appellant on 19th of September, 2009 which was Saturday. Even after excluding Sunday and Eid holidays, there was ample time with the appellant to prefer the appeal in the office but no attempt was made to submit the memorandum of appeal.
12. It is to be noted that for filing of appeal, actual and physical presence of counsel for the appellant was not IN COMPLET