' In this Civil appeal, appellant Muhammad Saeed Sheikh entered into a contract with Director of Remounts Veterinary and Farm, General Headquarter, Rawalpindi for supply of Bhoosa on 14-5- 1960. As the requisite supply of Bhoosa was not made by the Contractor, respondent, under the terms of the contract agreement, purcahsed the Bhoosa at the risk and cost of the said Contractor, after the contract was put an end to. In this risk purchase, the respondent incurred an extra expenditure of 37,249.95. After adjusting the security amount, a sum of Rs. 29,234.95 was claimed from the Contractor on the basis of the above-noted risk purchase. As the amount demanded was not paid and was disputed, the matter was referred to the Arbitration of Major-General Wasi-ud- Din, G.O.C. H.Q.10-Div. Lahore Cantonment in accordance with the arbitration clause contained in the contract agreement dated 14-5-1960. Named arbitrator entered upon reference, issued notice to the Contractor to appear and join the proceedings. Despite notices, when no appearance was made by the Contractor, the arbitrator, in an ex parte award, awarded a sum of Rs.29,934.95 against him to the respondent. Award made by the arbitrator, was thereafter, filed in Court with request to be made a rule of the Court. Contractor, in the civil Court, in response to notice appeared and filed objections to the correctness and validity of the award made by the arbitrator.
On the objections, learned District Judge, Lahore, late Mr.Salim Mazhar, subsequently a learned Judge of this Court, framed following issues:-
(1) Whether the award is invalid and liable to be set aside?
(2) Is the award liable to be set aside on account of misconduct of the parties or the Arbitrator?
(3) Relief.
2. Vide order dated 30-7-1968, learned District Judge, Lahore, disallowing objections, made award, the rule of the Court and consequently a decree for a sum of Rs.29,934.98 with costs followed in favour of the respondent No.l. The judgment was delivered on 30-7-1968 and an appeal from that judgment was presented to the High Court on 9-1-1969 that is to say 25 days out of time. A petition under section 5 of the Limitation Act, 1908 for condonation of delay in the preferment of the appeal has been made praying for admission of the appeal, after the prescribed period of limitation upon the sole ground that the appellant was seriously ill from 1-12-1968 to 7-1-1969 and this constituted a sufficient cause. Certificate in support of the stated illness which prevented the appellant from coming in appeal within the period of limitation prescribed for it has been appended. It reads:- "Dr. Capt. M. Fateh Alam. Campbellpur, date'6-1-1969.
' It is certified that Sh. Muhammad Saeed s/o Sh. Khan Bahadur, r/o Campbellpur is suffering from Ch. Bronchitis with Camplysene resulting in Asthama. He remained under my treatment from 1-12- 1968 todate. He was practically bedridden and unfit to move about during this period.
Sd/-Dr. Capt. Fateh Alam"
' In para. 2 of the application moved under section 5 of the Limitation Act, 1908, explaining the delay in preferring the appeal, the appellant stated "that on 16-11-1968, applicant fell seriously ill on account of a severe attack of Asthama. Applicant got bedridden and absolutely unable to move about. He remained in this state upto 7-1-1969 when for the first time, the Doctor who was treating him permitted the applicant to move out of his house. Even so because of his long ailment,i the applicant was so weak that he was able to travel to Lahore only with the physical support of two other persons. The applicant reached Lahore and appeal is being filed on 8-1-1969". Bar of limitation was left to be examined at the time of hearing of the first appeal.
In case delay of 25 days by which the appeal was barred by time is not condoned by the Court, then the merits of the case need not be gone into. It is only after the appellant successfully crosses the hurdle of limitation that inquiry into the merits of the case can be made. Both learned counsel, therefore, have been heard, to examine the question, whether the illness as pleaded in application under section 5 supported by a Medical Certificate could constitute a sufficient cause entitling the appellant for condonation .of delay of 25 days for filing of the appeal out of time.
3. Mr. Ehsan-ul-Haq, Advocate, learned counsel for the appellant contended that the appellant fell ill, was down with severe Asthama and could not at all move about. The appellant remained under the treatment of the Medical Officer from 1-12-1968 to 7-1-1969. The moment, the appellant recovered, he rushed to Lahore to file the appeal. Severe illness prevented him from coming in time, to Court. Delay that has occurred, therefore, was unavoidable and beyond his control. Stated illness, therefore, did constitute a sufficient cause and the appellant was entitled to exclusion of this period.
4. Mr.Maqbool Elahi Malik-II, learned counsel for the respondent, however refuted the contentions raised by learned counsel for the appellant. He forcefully contended that though "sufficient cause" is not susceptible of any precise definition applicable to all sets of circum stances, yet, by all standards, it must be a cause beyond the control of the party invoking the aid of the Court for condoning the delay. Delay in filing appeal which could have been avoided by due care and attention by the concerned party cannot in law be considered to be a good and sufficient cause for treating the appeal in time. He further submitted that serious illness no doubt may furnish a sufficient cause but then it must be of such a serious nature so as to totally incapacitate its sufferer from attending to his normal vocations of life. In the instant case, disease attributed was not of such a serious nature so as to incapacitate the appellant altogether. Even so, alternate arrangements could have been made by the appellant for filing the appeal in time. Learned counsel also contended that the appellant applied for copies on 21-8-1968. Copies were made ready and obtained on 7-10-1968. He waited till he allegedly became seriously ill. Deligence could well have been shown by the appellant in filling the appeal earlier and the habit of postponing the event till the last moment should not go to the benefit of the appellant. Learned counsel stated that with lapse of time, the appeal has become time-barred by 25 days and a valuable right has accrued to the respondent of which it could not be lightly deprived of. In this, the law protects him.
No premium should be placed upon the negligence and inaction of the appellant which otherwise is visible from his conduct in coming late to the Court for no valid reason.
5. After hearing learned counsel for the parties, I have reached the conclusion that the appeal is out of time by 25 days and the delay has not been satisfactorily explained. It is the duty of the appellant to explain the delay of each day that passes after the limitation for filing the appeal has expired by strong and convincing proof in support of the sufficient cause, for, with the expiry of period of limitation, the other party becomes vested with a legal right to defend the decree passed in his favour which has become unimpeachable by expiry of limitation. In Ramlal and others v.
Rewa Coalfields Ltd. AIR 1962 SC 361, the Supreme Court of India speaking on section 5 of the Limitation Act, 1908 observed:- "7 In construing section 5, it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-hear'edly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order, that judicial power and discretion in that behalf should be exercised to advance substantial justice."
' In the same report, in the later part of the judgment, the Supreme Court also observed:- "8 Now, what do the words 'within such period' denote? It is possible that the expression "within such period" may some time mean during such period. But the question is: Does the context in which the expression occurs in section 5 justify the said interpretation. If the Limitation Act or any other. appropriate statute prescribes different periods of limitation either for appeals or applications to which section 5 applies that normally means that liberty is given to the party intending to make the appeal or to file an application to act within the period prescribed in that behalf. It would be reasonable to require a party to take the necessary action on the very first day after the cause of action accrues. In view of the period of limitation prescribed the party would be entitled to take its time and to file the appeal on any day during the said period; and so prima facie it appears unreasonble that when delay has been made by the party in filing the appeal it should be called upon to explain its conduct during the whole of the period of limitation prescribed. In our opinion, it would be immaterial and even irrelevant to invoke general considerations of diligence of parties in construing the words of section 5. The context seems to suggest that 'within such period' means within the period which ends with the last day of limitation prescribed. In other words, in all cases falling under section 5 what the party has to show is why he did not file an appeal on the last day of limitation prescribed. That may inevitably mean that the party will have to show sufficient cause not only for not filing the appeal on the last day but to explain the delay made thereafter day by day. In other words, in showing sufficient cause for condoning the delay the party may be called upon to explain for the whole of the delay covered by the period between the last day prescribed for filing the appeal and the day on which the appeal is filed. To hold that the expression 'within such period' means during such period would, in our opinion, be repugnant in the contexts"
' So, the short question that arises for decision is whether the appellant has succeeded in showing sufficient cause for not coming in time prescribed by law. He has relied on ground of illness and in its support he produced a certificate which has already been reproduced above. In S.M. Ally v.
Maung San Nyein AIR 1936 Rang. 183, the learned Chief Justice of the Rangoon High Court, speaking on section 5 of the Limitation Act, 1908, observed:- "Now, the ground upon which he bases the present application is a mere plea of sickness, and that in itself, in my opinion, unelss the effect of the sickness was such that in the circum stances it would afford reasonable excuse for the delay in resenting the appeal would not justify the Court in exercising its discretion in admitting the appeal under section 5. That was laid down as long ago as 1864 in 1 W R Misc. 23(3). In 2 U S R 451(4), Burges J.C. observed that: "There are general grounds why a plea of sickness should only be accepted upon the very strongest proof of entire disability to attend to any duty if accepted at all, as an excuse for delay in the presentation of an appeal. In a case of paralysis, for instance it might happen to a man to be struck down by a stroke the moment judgment against him was delivered and to remain in an unconscious state thereafter continuously till after the expiry of the period allowed for appeal. In such an extreme case there might be good cause for extending the time under section 5 Limitation Act. But it can very rarely happen that a man should thus be rendered incapable by malady of exercising his powers of mind at all, and though he may not be physically able to attend Court and present an appeal, it might be possible for him to arrange for this to be done by another.
' In my opinion these observations of Burgess J.C., are too wide. It is a matter for the Court to consider in each case whether the effect of illness as proved is such that it afforded sufficient cause for the failure to present the appeal within the time prescribed by law. In the present case, there does not appear to me to be any reason shown by the applicant during the time when be alleges that he was at Toungoo should not have given instructions to his learned Advocate in Rangoon which would have enabled him to present the appeal within time."
6. In Chiragh Din v. Mushtaq Muhammad and another PLD 1975 Kar. 1025, learned Judge, speaking on section 5 of the Limitation Act observed:- "The exercise of discretion is always to be reasonable and based on sound footings and not whimsical or arbitrary. In this case 13 days delay has been condoned simply on the basis of a certificate of a private practitioner without taking into consideration that the respondent No.1 could authorise anybody else on his behalf to obtain the copies or at least he could ask his counsel to do the same for him. It is a matter of common knowledge that typhoid is not such disease which may suspend or paralyse the senses of its victim to such an extent that he may not be able to think of such an important matter. Not appointing of an agent to obtain the copy of the order, therefore, seems to be a deliberate act, the advantage of which should not accrue to the respondent No.1."
' Certificate of illness when examined in the light of standards laid down by law does not at all show that the appellant was incapacitated to an extent that he was prevented altogether from attending to and following normal advocations of life. Further, even if this be taken to be true, the appellant could well have made alternate arrangements for filing the appeal within time.
Necessary documents were already with him. A look at the certificate shows that in figure (6), attempt has been made to make some alteration. This in a way also casts doubt on its correctness. Be that as it may, the appellant has not succeeded in explaining satisfactorily the cause for not coming to Court within prescribed period of limitation. Delay of 25 days is long enough and in law a very heavy burden was placed upon the appellant to explain the delay of each and every day which expired after the period of limitation fixed for filing an appeal. This he has failed. No good grounds exist, thetefore, for condonation of this long delay. Delay, therefore, is not condoned. Petition under section 5 of the Limitation Act, 1908 is dismissed. Consequently, the Civil Appeal being out of time by 25 days for the same reason is also dismissed being barred by time. In the circumstances, parties are directed to bear their own costs.