' MRS. ASHRAF JAHAN, J.--- This civil revision under section 115 of the Code of Civil Procedure, 1908, is directed against the Order dated 06.10.2001, passed in Civil Appeal No.125/2001, by the learned lInd Additional Sessions Judge, South Karachi, whereby it was dismissed being time barred, and the Judgment and Decree dated 30.09.2000 and 05.10.2000 respectively, passed by learned Xth Senior Civil Judge, South Karachi, whereby Suit No.2345/1996 was decreed, was maintained.
2. The factual background giving rise to the present Revision Application is that the Respondents Nos.1 and 2 had filed Civil Suit No.656/1991 for declaration and perpetual injunction before this Court on 27.05.1991. The Plaintiffs (hereinafter referred to as Respondents Nos.1 and 2) alleged in their suit that Respondent No.3 Captain Faizullah Naqvi of Pakistan Army (now Major) had sold a commercial plot bearing No.3-C, 5th Zamzama Street, Phase-V, Defence Housing Authority, Karachi admeasuring 200 Sq. Yards (hereinafter referred to as the "disputed property") to Mst. Hazara Bai (Respondent No.2) in the year 1977, for a total consideration of Rs.18,500/-. Subsequently, she submitted all the documents of transfer before the Defence Housing Authority ("D.H.A"), who demanded the outstanding dues of Rs.10,934/- including Rs.10,000/ - as development charges; She made the entire payment through Pay Order dated 20.06.1982 in favour of D.H.A, obtained membership of the D.H.A for getting transfer of the disputed property in her name. Thereafter she gifted the disputed property to Mrs. Shahida M. Amin (Respondent No.1 in the present revision) orally on 30.08.1986, such gift was accepted and transfer letter dated 22.08.1987 was issued in her name by the D.H.A. Both the ladies were in legal and constructive possession of the disputed property when after 14 years they received a show cause notice dated 05.05.1991 issued by the D.H.A, alleging therein that the allotment of the disputed property was issued without approval of Managing Committee of the Society and it was fraudulently transferred in the name of Respondents Nos.1 and 2. On 18.05.1991 they replied the show cause notice, but the D.H.A authorities categorically refused to give any hearing and indicated that the allotment would be cancelled shortly; therefore, the suit was filed with the following prayers: "1.(a). To declare that the Plaintiff No.2 was the bonafide purchaser for due consideration, transferee allottee of Plot No.3-C, 5th Zamzama Commercial Lane, Phase-V, Pakistan Defense Officers Housing Authority, Karachi and the Plaintiff No.1 is the bonafide subsequent transferee and allottee of the said Plot No.3-C, 5th Zamzama Commercial Lane, Phase-V, PDOHA, Karachi and has every right to enjoy the benefit of the said plot.
(b) to declare that the Show Cause Notice dated 5-5-1991 is illegal, void and against public policy as such is of no legal effect.
(c) to declare that the Defendant No.1 has no right or power to challenge its own transfer orders issued in favour of the Plaintiff No.1 and/ or Plaintiff No.2
2. To grant a perpetual injunction restraining the Defendants Nos.1 and 2 and their agents, attorneys, officers and/ or employees from cancelling the allotment, transfer orders and challenging the title of the Plaintiff No.2 and/ or the Plaintiff No.l. The Defendants Nos.1 and 2 further be restrained from selling, giving possession and/or allotting the said plot to the Defendant No.2 and/or to any other person.
3. To grant a temporary injunction in terms of the above against the Defendants Nos.1 and 2 till disposal of the suit.
4. To grant cost of the suit and any other reliefs which this Hon'ble Court may deem fit and proper in the circumstances of the case."
3. The Defendants in the above suit were served and Defendant No.1 (D.H.A) filed its written statement, denying the case of the Plaintiffs and taken the plea that the entire transaction had taken place fraudulently with the connivance of the staff of D.H.A; therefore, suit is liable to be dismissed. Simultaneously, Defendant No.2 Major Faizullah Naqvi also filed his written statement, wherein he had specifically stated that the allotment of plot in question, in his name was valid and genuine, but its transfer in the name of Plaintiffs had been obtained fraudulently; therefore, suit is liable to be dismissed. Both the sides filed their proposed issues, which were settled vide Order dated 11.12.1994. The suit was at the stage of evidence when it was transferred to the District Judge South on account of amendment in rules and change of pecuniary jurisdiction and was marked to Xth Senior Civil Judge for disposal in accordance with law. After receipt of suit fresh notices were issued to the parties. The counsel for Plaintiffs and Defendant No.1 waived Court motion notices on 24.04.1999 and 29.07.1999 respectively, whereas service upon Defendants Nos.2 and 3 was made by way of publication of notice in daily "Nawa-e-Waqat", dated 11.03.2000. The Court on 16.09.2000 examined the attorney of the Plaintiffs Nos.1 and 2, who produced documents as Exhibit P/1 to P/21 and case was adjourned for cross-examination by the learned counsel for the Defendants, but nobody appeared to cross examine him. The Plaintiffs further examined two witnesses in support of their case, but again their evidence was not challenged in cross examination. Subsequently case was fixed for evidence of the Defendants' side, but nobody turned up to adduce evidence on behalf of Defendants, thereafter their side was closed and case was adjourned to 30.09.2000 for final arguments. The Court after hearing the learned counsel for the Plaintiffs decreed the suit of the Plaintiffs on 30.09.2000. The appeal against the above judgment was filed by the D.H.A on 29.09.2001, which was dismissed being time barred vide order dated 06.10.2001, which is impugned before this Court by way of filing present revision application.
4. I have heard the learned counsel for the parties. It is argued by the learned counsel for the Applicant that the orders passed by the first Appellate Court as well as trial Court are illegal and void, therefore, liable to be set aside. It is added that no limitation applies in respect of illegal judgment/decree as the trial Court had not given the judgment in the light of adopted issues. Per learned counsel, the suit before the trial Court was contested by the present Applicant, but unfortunately the advocate who was appearing before the trial Court did not pursue the matter diligently and remained absent before the trial Court, therefore, on account of negligence of the counsel, party should not be penalized. To a specific query by this Court about the delay in filing the appeal, he failed to give any plausible explanation except that it was all due to the negligence of the counsel.
5. Conversely, it is contended by learned counsel for Respondents Nos.1 and 2 that the trial Court had passed the judgment in accordance with law as per evidence available on record; the Plaintiffs in the suit have not only given the evidence with regard to their case, but have also produced all the relevant documents in respect of disputed property. The evidence brought on record was not challenged at all in cross examination, therefore, the trial Court after examining the available material had rightly passed the judgment. He further submitted that the judgment was passed on 30.09.2000, while 1st Appeal was filed on 29.09.2001 after the delay of about one year without any explanation. Per learned counsel, even if the contention raised by the learned counsel for the Applicant is taken as correct that he got information about the judgment on 16.07.2001, then they applied for certified copy on 22.09.2001 after a period of more than two months and no plausible explanation in respect of this inordinate delay has been submitted by the Applicant's side. Thus, in such situation appeal filed before the 1st Appellate Court was hopelessly time barred, which was dismissed in limine. In support of his contentions he further submitted that though an application under section 5 of the Limitation Act was filed by the present Applicant's attorney, but not a single reason for condonation of delay in filing of appeal was given in such affidavit. Per learned counsel, it is now well settled principle of law that the party who fails to pursue their case diligently, is not entitled for any condonation of delay in filing of appeal. Besides, he submitted that no special treatment is to be given to the Government functionaries in case of delay. In support of his contentions he placed reliance upon the case of Muhammad Nawaz and 3 others v. Mst. Sakina Bibi and 3 others (1974 SCMR 223), Dhanjishaw Bahramji Ghadialy and another v. Abdul Latif (PLD 1983 Karachi 121) and Mst. Mah Bibi v. Mst. Hameeda Begum ( PLD 1976 Karachi 811).
6. I have carefully examined the contentions raised by the learned counsel for the parties and have perused the record. The perusal of impugned order reveals that it had been passed on the sole ground of being time barred. Therefore, this revision is to be examined with this specific background of the case and no finding regarding merits of civil suit are required to be given in the above circums!Ances. It is an admitted position that the Judgment of the trial court was passed on 30.09.2000 and Decree was prepared on 05.10.2000, whereas appeal under section 96 of C.P.C.
Before the District Judge, South Karachi was filed on 29.09.2001. Alongwith appeal before the first appellate court an application under section 5 of the Limitation Act, r/w section 151, C.P.C. Was also filed for condonation of delay in filing of the appeal. The affidavit annexed with the above application reveals the reasons of delay in filing this appeal. For ready reference para 3 of the same is reproduced as under: "That the appellant authority has only come to know about the impugned judgment and decree passed by the learned trial Court. The appellant authority with the respondent No.1 wrote a letter dated 12.07.2001 and enclosed the copy of the impugned judgment and decree. Photocopy of the letter dated 12.07.2001 and received by the authority on 16.07.2001 written by Respondent No.1 is attached. That this learned Court may kindly accept the appeal on the ground that appellant authority only came to know on 16.07.2001. Hence there is in fact no delay in filing the appeal, but the application has been filed as an abundant caution."
' The perusal of above referred paragraph reveals that no specific, cogent or plausible explanation was assigned by the present applicant for condonation of delay in filing of appeal, while during the arguments before this Court, the only ground taken is the negligence of the counsel. In this regard, it will suffice to say that by this time it is well settled legal position that no party can take the advantage of negligence or carelessness of his lawyer/counsel. In many cases Honourable Apex Court in clear terms has held that it is the duty of the Applicant/ Petitioner to get himself informed about the fate of the case and the negligence on the part of counsel to give necessary information would not per see constitute sufficient ground for condonation of delay when valuable rights have accrued to the opposite party by efflux of time. Reference in this regard can be made to the following cases, which in my humble view apply with full force to the facts of the present case.
1. Muhammad Din v. Member (Consolidation) Board of Revenue, Punjab and another (2003 SC MR 1304).
2. Sher Muhammad v. Said Muhammad Shah (1981 SCMR 212)
3. Muhammad Nawaz and 3 others. v. Mst. Sakina Bibi and 3 others (1974 SCMR 223)
4. Dhanjishaw Bahramji Chadialy and another v. Abdul Latif (PLD 1974 SC 31)
5 Mst. Mah Bibi v. Mst. Hamida Begum (PLD 1976 Karachi 811)
7. Reverting back to the question of delay, it will be relevant to observe that delay in filing of appeal can only be condoned if delay of each day is explained, which factor is totally lacking in the instant case. As even after getting knowledge of the judgment of the civil suit as per applicant's own case they applied for certified copy after more than two months, when under the law they were supposed to file appeal immediately after getting the knowledge of judgment within a period of 30 days. Further, it is well established principle laid down by the Apex Court in number of judgments that the Government functionaries have to strictly follow the limitation provided under law and no special treatment can be given to them. Reliance in this regard is placed on the case of Member Board of Revenue v. Farooq Ahmed and others (2000 SCMR 706).
8. In the light of above discussion and relying upon the case law cited above, I am of the view that the present applicant has miserably failed to make out the case in its favour, therefore, present revision application merits no consideration and is dismissed accordingly.