1. ' NAIMUDDIN. J.-This is an application under section 5 of the Limitation Act for condonation of delay of 15 days in filing the appeal under section 3 of the Law Reforms Ordinance, 1972, made in the following circumstances.
2. By the order, dated 20th April, 1982, a learned Single Judge of this Court on the original side, dismissed the appellant's application under Order IX, rule 13, C.P.C. For setting aside the ex parte decree. The appellant's Advocate applied for certified copy of the order on 25th May, 1982, which was supplied the same day. He however, filed the appeal on 26th May, 1982. After excluding the time of one day spent in obtaining the certified copy of the order, the appeal has been filed 15 days beyond the time prescribed in article 151 of the Limitation Act.
3. The ground stated for condonation of delay is contained in paragraph 2 of the application, which is that Mr. Ijaz Ali Subzwari, Advocate who was appearing for the appellant in the suit had applied for and obtained a certified copy of the impugned order on 27th April, 1982, but he did not inform the appellant about the passing of the order or of his having applied for and obtained the certified copy of the order and on coming to know of the dismissal of the application for setting aside the ex parte decree at a belated stage, the appellant engage new counsel to apply for certified copy and after obtaining the copy filed the appeal.
4. The learned counsel for the appellant has also relied on the affidavit of Mr. Aftab Gul, Advocate, filed on 14th May, 1983, almost a year after the making of the application wherein he has inter alia stated that originally the counsel for the appellant in the suit was Mr. Ijaz All Sabzwari, who did not inform the appellant of dismissal of the application on 20th April, 1982, due to certain differences which developed in the meantime between the appellant and Mr. Ijaz Ali Sabzwari, and on appellant's coming to know of the order the appellant immediately requested him to file appeal forthwith. According to the affidavit he enquired from Mr. Ijaz Ali Sabvwari as to the last date for filing of the appeal and was told that the period of limitation would expire on 27th May, 1982, and on the basis of the information he proceeded to prepare the appeal and' filed the same, on 26th May, 1982. It is submitted by Mr. Khalid Anwar that the appellant should not suffer on account of misconduct of his previous counsel, namely Mr. Ijaz Ali Sabzwari in not informing the appellant of the order and in not handing over the, first certified copy of the order obtained by him. In support of his contention he relied on a decision of Lahore High Court in Allah Wadhaya and another v. Haji Muhammad Ramzan, Amiruddin and others (1) and a decision of the Supreme Court in Seth Shivrattan G. Mohatta and another v. Messrs. Mohammadi Steamship Co., Ltd. (2).
2. ' In Lahore's case it was held that where an appeal was not presented in time due to fraud played by clerk of the counsel when there was no fault on the part of the client himself or the counsel, the period of limitation should be extended.
3. ' In the Supreme Court's case the Supreme Court concurring in the view taken by the appellate Bench of the High Court in reversing the order of the learned Single Judge held that though the counsel for the plaintiff had been negligent in the prosecution of the suit, yet it would be wrong to make the plaintiff to suffer on account of his professional misconduct.
4. ' On the other hand, it is submitted by Mr. Akhtar Mahmood, learned counsel for respondent No, 1 that even if the acts of omission or commission of Mr. Ijaz All Subzwari are ignored, there is no satisfactory explanation of delay of at least twelve days as admittedly the appellant had come to know of the order before 13th May, 1982, when he had filed an application for stay in the Court of Mr. Shaukat All Khan, Civil Judge, Lahore. He submitted that the appellant ought to have explained the delay of each day which he has failed and the explanation of his counsel is quite unsatisfactory and does not meet the requirements of the law. He relied on Mehar Khan v. Bakhat Bibi and others
(3) and Muhammad Hussain and others v. Settlement and Rehabilitation Commissioner and others (4).
5. ' Now, the appellant's case as stated in paragraph 2 of the application under section 5 of the Limitation Act is that Mr. Ijaz Ali Sabzwari, the learned counsel for the appellant in the proceeding before the learned Single Bench applied and obtained certified copy of the impugned order on 27th April, 1982, but he did not inform the appellant about it and on account of reasons best known to him he did not inform the appellant about the dismissal of the application to set aside the ex parte decree.
6. We would have on the authority of Seth Shivrattan G. Mohatta and another v. Messrs. Muhammadi Steamship Co. Condoned the delay in filing the appeal, had the appellant been vigilant for the initial obligation to enquire about the decision on the application was that of A the appellant and if his counsel had failed to supply him the copy he should have applied for the same immediately, and had he satisfactorily explained the delay of each day. We are fortified in our view by a decision of the Supreme Court in Muhammad Nawaz and 3. Others v. Mst. Sakina Bi and 3 others (5). In this case the relevant facts were that after
(1) AIR 1934 Lab. 986 (2) PLD 1965 SC 669
(3) 1974 SCM R 423 (4)1975 SCM R 304
(5) 1974 SCMR 223 ' the conclusion of the arguments in appeal in the High Court, the judgment was reserved on 10th February, 1972 and delivered on 22nd June, 1972 of which no intimation was given to them by their counsel Mr. Fazle Hussain. It was only on 12th September, 1972 when one of the petitioners came to enquire from the counsel, that he was informed that the appeal had been decided. But even then counsel did not inform him about the actual date of the decision. Later, on obtaining copy of the judgment it transpired that the judgment in the appeal was announced on 22nd June, 1972. It was further stated that Mr. Fazle Hussain initially did not return the brief on the plea that it had been misplaced. It was only after obtaining in writing from the petitioners that they would not make any claim against him in respect of the case that the brief was returned to them.
7. ' On these facts it was observed by the Supreme Court as follows :- "Even if the above explanation is to be taken at its face value, it would not constitute a sufficient cause for the condonation of long delay that has taken place in the instant case.The initial obligation was of the petitioners to enquire about the decision in their appeal, or to arrange with their counsel to inform them about the decision if it is announced in their absence. Even if it be assumed that their counsel neglected to inform them per se it would not be sufficient ground for condonation of delay, when a valuable right has accrued to respondents Nos. 1 to 3. We are not satisfied that the petitioners were diligent or too k due care in the matter."
8. ' The only explanation given by Mr. Aftab Gul for not filing the appeal immediately is that he enquired from Mr. Sabzwari as to the last date for filing the appeal and he was told that the period of limitation would expire on 27th May, 1982, but since the appellant and Mr. Sabzwari were not, as alleged by the appellant, on good terms, there was no reason to enquire from Mr. Sabzwari as to the last date of filing the appeal and further there: was no reason to believe his statement, if he made such statement without verifying the same by inspection of the record in view of the dispute between him and the appellant, if the statement of the appellant in this regard is true. Then we fail to understand how Mr. Sabzwari could make such a statement and how Mr. Aftab Gul could accept the same even if any of them could take 27th April, 1982, as the date from which the time started running, as the period of limitation for present appeal is 20 days and not 30 days. In our view this is a case of gross negligence. In any case, it was initially appellant's duty to find out the date of passing of the order and his negligence cannot be condoned for he has not acted with due care and attention and he therefore, lacks good faith.
9. Further, the rule that delay of each day must be satisfactorily explained for condonation of delay is so well-established that it needs n citation of any authority. Nonetheless Mr. Akhtar Mahmood has cited' some of them which have been mentioned by us hereinbefore.
10. ' Examining the facts in the light of above stated rule we find that neither the appellant nor his new counsel Mr. Aftab Gul has stated as to when the appellant came to know of the impugned order.
11. Nor has Mr. Aftab Gul stated that when he was engaged and when he enquired from Mr. Sabzwari as to the last date for filing the appeal. However, it is clear from the contents of paragraph 7 of the affidavit of Mr. Aftab Gul that the appellant had, in any case, come to know of the order before 13th May, 1982, when he had filed an application for stay in the Court of Mr. Shaukat Ali Khan, Civil Judge, at Lahore on 13th May, 1982, as stated before. We may reproduce herein below the contents of paragraph 7 of the affidavit of Mr. Aftab Gul as we do not find the application and the affidavit stated to have been annexed to the affidavit of Mr. Aftab Gul on record, It reads as follows : "7. That a perusal of the above facts would reveal that the appellant throughout acted bona fide and with due diligence and cannot be blamed in any manner whatsoever for the delay in filing the appeal. Documentary evidence exists which clearly establishes that the appellant was bona fide under the belief that the last date for filing the appeal was 27th May, 1982. This can be seen by a perusal of the application for stay filed by the appellant in the Court of Mr. Shaukat Ali Khan, Civil Judge, Lahore on 13th May, 1982. In paragraph 5 of this affidavit it has been clearly stated that the appellant had instructed his new counsel. (I myself) to file an appeal against the order of the learned Single Judge. It is further stated therein that the period of limitation for filing of the appeal would expire on 27th May, 1982 and that the appeal would be filed prior to the said date. (True copies of the stay application and affidavit are attached herewith as Annexures A & B, respectively."
12. We are, therefore, of the view that delay at least from 13th May, 1982 to 25th May, 1982, has remained unexplained satisfactorily.
13. ' As regards Allah Wadhaya's case cited by Mr. Khalid Anwar it is of no help to his case for it itself lays down that there should be no fault on the part of the applicant or his counsel.
14. Accordingly, we find no merits in this application and dismiss it with costs.