' This Regular Second Appeal assails the judgment/decree of reversal, dated 28-11-1985 of, the lower Appellat Court whereby the respondent/plaintiff's suit for pre-emption was decreed.
2. The sole point urged was that the first appeal before the learned Additional District Judge was, barred by time and that the condonation of delay in filing the same was not supported by any grounds whatsoever.
3. The application for copies was made on the very date, namely, 12-5-1985 when the judgment was announced by the Trial Court. The copies were ready on 17-6-1985 but were received on 22-6- 1985. The appeal was filed on 22-7-1985 being accompanied by an application under section 5 of the Limitation Act seeking condonation of the delay. However, it did not state any reasons how the respondent was prevented from filing the appeal in time. The learned Additional District Judge sent for the record of the Copying Agency and examined the Copies Muhammad Afzal to see if any hard date had been given to the respondent for collecting the copies. The official stated that though initially a period of ten days was allowed to him for collection of the copies, yet those were in fact collected on 22-6-1985, but was not able to indicate if the latter date was actually fixed for delivering the copies. He further disclosed that no formal notice was given to the respondent informing him that the copies were ready for delivery. It was inferred from his statement that the respondent was right in maintaining that he was required to collect the copies on 22-6-1985.
4. Mr. Naveed Shahryar for the appellant stressed that the delay could be condoned only if a ground is pleaded therefore, in the relevant application and that the learned Additional District Judge proceeded to allow the same on a ground which was never taken up by the respondent either in his application or the affidavit. He further, submitted that ordinarily dates were noted down on the Chit issued by the Copying Agency to the applicants and that in this case, the respondent failed to produce it in proof of his claim that 22-6-1985 was the last date fixed for delivery of the copies. Still further he vehemently urged that the time allowed to lapse after preparation of the copies was to be utilized with due diligence but in this case the respondent did not reveal if he had been making efforts for collection of the copies. Mst. Jamila Khatoon etc. v. Mst. Tajunnisa etc. PLD 1984 SC 208 was cited to support the plea that if due diligence is not shown after preparation of the copies in collecting them, the time lost thereby will not be condoned. Such was the ratio also in Abdullah Khan etc. v. Khalil Ahmad etc. 1972 SCMR 332. Lastly, he criticised the procedure adopted by the learned Additional District Judge in drawing a presumption from the statement of the official of the Copying Agency that 22-6-1985 was the date fixed for delivery of copies. He canvassed that an opportunity to cross-examine this witness was denied to the appellant and, therefore, drawing any inference from his statement as a witness was neither here nor there. According to him, it was possible to have elicited some information in favour of the appellant but denial of opportunity +r cross-examine him was rather fatal.
5. Two features are too conspicuous to be ignored. Firstly, there is no reason shown in the application under section 5 of the Limitation Act as to why the delay, if any, be condoned. Perhaps it was necessary to state the precise delay and also the exact reason which prevented the respondent from filing the appeal within usual time. The application being bereft of these ma'tters obviously appears to be blank. There was reason to agree with the submission that the learned Additional District Judge rested to condone the delay on a ground which had never been taken.
Such a suo motu exercise of jurisdiction was rightly claimed to be exceptionable. Secondly, the copies were deliverable on 17-6-1985, and under section 5 of the Limitation Act, the time requisite for obtaining copies has to be excluded for the purpose of appeal. Evidently, it meant the time till the copies were made ready for delivery, and conversely did not include the time which may have been lost by negligence in failing to collect them. This was the purport of the rule laid down in the two cases cited above. The duty to explain away five days lost by the respondent in this case in collecting copies on 22-6-1985, lay on him. In fact, each day had to be explained by showing how assiduously he had been exercising due diligence in the matter of their collection. As already remarked, his application-as also the affidavit did not state any reason whatsoever as to why he failed to avail those five days. The mere fact that section 5 of the Limitation Act was invoked and an affidavit was sworn in order to seek condonation, pre-supposed that he was conscious of having suffered it and was in a way trying to justify it. Unfortunately for him, he did not adduce any reason and rested content in making a bare request for condonation. The learned Additional District Judge tried to help him on a ground which was not pleaded. The condonation so allowed was on legal plane, open to exception. The method adopted by even examining the Copies! Without affording an opportunity to the appellant to cross-examine him, would vitiate it.
6. The argument advanced on behalf of the respondent that the appeal was within time as no hard date was given for collection of the certified copies, could not be entertained. Usually, a chit is given to the applicants showing various dates fixed for collection of copies. In this case, the respondent failed to produce the same before the lower Appellate Court and the copiest examined to help him being non-committal on the point did not do him much service.
7. For all these reasons, the appeal is accepted, the impugned decree is set aside and that of the dismissal of the suit passed by the trial Court is restored.
9. In the circumstances of the case, the parties are left to bear their own costs.