KHADIM HUSSAIN M. SHAIKH, J.--- This appeal is directed against the Judgment dated 25.10.2016, passed by the Election Tribunal in Election Petition 12/2015 re-Abdul Sattar and others v. Provincial Election Commissioner Sindh and others, whereby the aforesaid Election petition was dismissed.
2. Record reflects that the instant appeal was filed on 30.11.2016 i,e, after 34 days of the impugned judgment dated 25.10.2016 although subsection (1) of Section 54 of the Sindh Local Government Act, 2013, provides period of thirty days for filing the appeal by any person aggrieved by a final order, passed by a Tribunal, to the High Court. For the sake of convenience Section 54 of the Act, 2013 is reproduced here:-
54. Appeal against the orders of Tribunal.--- (1) Any person aggrieved by a final order of a Tribunal may, within thirty days of the communication of such order, prefer an appeal to the High Court.
(2) ........................................................
3. Learned counsel for the appellant re-iterated his assertion made in application for condoning the delay in filing the appeal that due to personal bonafide reasons this appeal could not be filed in time; and, that the delay in filing the instant appeal can be condoned under the provisions of section 5 of the Limitation Act, (IX of 1908). He, therefore prays that the delay in filing appeal may be condoned.
4. In order to appreciate, if the provisions of Section 5 of the Act, 1908, is applicable to this case, it would be advantageous to reproduce Section 29 of the Act, 1908, which is the relevant provision of law regarding applicability or otherwise of provisions of the Act, 1908, when a special law or statute itself provides period of Limitation for filing any suit, appeal or application:- "29. Savings (1) Nothing in this Act shall affect section 25 of the Contract Act, 1872.
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law (a)the provisions contained in section 4, sections 9 to 18 and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and
(b) the remaining provisions of this Act shall not apply."
5. A plain reading of they above provisions of law, reveals that for the purpose of determining period of limitation prescribed for any Suit, Appeal or Application by any special or local law, the provisions contained in section 4, sections 9 to 18 and 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; Section 29(2)(b), lays down that the remaining provisions of the Act, 1908, shall not apply. Thus in my humble view the provisions of Section 5 of the Act, 1908, are not applicable to the appeals filed under Section 54 of the Act, 2013, which itself specifically provides period of limitation for filing the appeal to the High Court against a final order passed by the Election Tribunal.
6. From a perusal of the certified copy of the impugned judgment annexed with the appeal, it would be seen that the impugned judgment was passed on 25.10.2016 and copy thereof was applied for by the appellant on 27.10.2016 i,e, after two days of passing the impugned judgment and whereas the copy was prepared and delivered to the appellant on the same date viz. 27.10.2016, but the appeal was filed on 30.11.2016 i,e, after 32 days of the receiving of copy of the impugned judgment; and 34 days of passing the impugned judgment; and thus the instant appeal is barred by four days; even otherwise the ground urged by the learned counsel for the appellant, which is patently absurd and vague in nature, could hardly be a ground for the appellant to seek condonation of delay of four days in filing the appeal even in a case attracting provisions of Section 5 of the Act, 1908, as the delay of each and every day with justification was to be explained in such a case in view of well settled law, what to state about the case one in hand in which the provisions of Section 5 of the Act, 1908, are inapplicable as discussed by me in, paragraph-5 supra.
Reference can be made to case of Messrs S. Malik Traders and another v. Saudi PAK Leasing Company Ltd. (2009 CLD 171), wherein an Hon'ble Division Bench of this Court has held that:- "2. Today, we have heard the learned counsel for the appellant and with his assistance gone through the certified copy of the judgment and decree placed on record by the appellant. It shows that if the period of limitation is computed from the date of signing of decree and the period consumed in obtaining certified true copy of the judgment and the decree i,e, two days is also excluded still the appeal is time-barred by one day. This being the position and considering the fact that section 5 of the Limitation Act is also not applicable to this appeal, having been preferred under a special statute, it is dismissed being time-barred. "
In case of Allah Dino and another v. Muhammad Shah and others (2001 SCM R 286), the Hon'ble Supreme Court has held that:-- "5.... where the law under which proceedings have been launched prescribes itself a period of limitation ... then benefit of section 5 of the Limitation Act cannot be availed unless it has been made applicable as per section 29(2) of the Limitation Act,..."
7. In view of what has been stated above, I am of the considered view that the instant application bearing CMA No,924 of 2016, seeking condonation of delay in fling appeal, being not maintainable, is dismissed and resultantly the appeal is dismissed as time barred.