The first question that arises in this Misc. Appeal is whether it has been filed in time and if not whether sufficient reason has been made out to allow condonation of the delay. The respondent is the wife of the appellant and has two children from him, namely, Zarina and Muhammad Aslam, who, at the date of the Institution of the appeal, were stated to be 10 years and 8 years cold respectively. She filed an application under the Jatardians and Wares Act in the Court of the District Judge, Larkana acting as a Family Court under the West Pakistan Family Courts Act, 1964. It is unnecessary at this sago to state the grounds upon which the application was made or those upon which it was resisted by the respondent; suffice it to say that on the 28 October 1971, the Judge granted the application and appointed the respondent as guardian of the minors.
2. An appeal was filed in this Court and there is no question. But that it lay to this Court though the question under what provision of law it lay will be a matter of major importance in this case. This appeal was pr, seated on the 5th of February 1972, it being to contention of the appellant or, at leapt as it is now argued before me, the understanding of the learned counsel that the period of limitation was 90 days. Even so the appeal was time---barred by one day. As against that it is argued that the period of limitation prescribed by law la really 30 days in which case of course it is time-barred by a very much longer period. Before I consider the application under section 5 for condonation it would be convenient to outline the argument upon which the rival contention as to the period prescribed are based. On behalf of the appellant it is asserted that the appeal lay under section 47' or' the Guardians and Wards Act and therefore the provisions of the Civil Procedure Code, and consequently of the Limitation Act, come into operation and it is of course undisputed that, if they do, then the period of limitation would be 90 days. Alternatively the learned counselth argues that such was his bona fide understanding of the law at that time although he now concedes that the position might well be different, and upon the basis of this period of 90 days be seeks condonation of the one day's delay by reason of facts which I shall state presently. As against that the argument of the respondent is that the period of limitation is governed by rule 22 of the West Pakistan Family Courts Rules, 1965 which prescribes a period of 30 days. If this be applicable section 5 of the Limitation At has no express application but the proviso to sub-rule (1) of rule 22 gives power to the appellate Court "for sufficient cause to extend the said period". Clearly, therefore, if a case is made out for condona--petition under section 5 of the Limitation Act there would be suffi--cient reason for extending the period under the proviso. There is of course this difference in the present case that the delay which would have to be explained, if rule 22 is applicable, is of a much longer period than would be the case if the period of Limitation is 90 days.
3. To start with learned counsel for the appellant relied upon the case of Muhammad Ismail v. Fazal Ahmad (PLD 1969 Lah. 834). Now the judgment in appeal in this case was by an Administrative Civil Judge and consequently, if no appeal lay by reason of section 47, then an appeal did not lie under the Family Courts Act, to the High Court at all. The learned Judges who composed the Division Bench which beard the case, however, came to the conclusion that under section 25 of the Family Courts Act a family Court has to be equated with the District Court for the purposes of cases under the Guardians and Wards Act and that, therefore, an appeal would lie to the High Court under section 47 of the Guardians and Wards Act. So far as it goes the decision clearly supports the contention put forward by learned counsel for the appellant. The same question arc: a in the case of Jumma Khan v. Gul Ferosha (PLD 1972 Pesh. 1), and Shah Zaman Babar, J, held that an appeal is a matter of procedure and a continuation of the suit and that, consequently, an appeal would tie under section 47 of the Guardians and Wards Act to the High Court. The learned Judge relied both upon the Lahore case which I have already quoted as also an earlier Lahore case namely, that reported in PLD 1967 Lah. 977.
4. Reliance was finally placed upon the decision of the-- Supreme Court reported as Khizr Hayat Khan Tiwana v. Zenab Begum (PLD 1967 SC 402). I have considered this case carefully and I do not think that it really applies in the circumstances of the present case. The respondent in that case had made an application under section 25 of the Guardians and Wards Act but this was dismissed for default of appearance. After the Family Courts Act came into force she moved a fresh application which came up before a Civil Judge hearing the petition as a family Court, and was dismissed by him. The order of dismissal was upheld in appeal by the learned District Judge, Lahore and against this decision the High Court was moved under Article 98 of the Constitution of 1962. The High Court allowed the petition, the question before it mainly being whether, in view of the earlier petition before the Guardian Judge having been dismissed, the fresh proceedings before the Civil Judge as a Family Court were maintainable. The High Court held that they were and consequently came to the conclusion that the petition under Article 98 of the Constitution had to be allowed inasmuch as the Family Court bad declined jurisdiction upon an erroneous view of the law. The argument before the Supreme Court in support of the Appeal was that as far as the Guardians and Wards Act is concerned the provisions of the Code of Civil Procedure applied to proceedings thereunder by reason op section 141 of the C. P. C. For the Guardians and Wards Act did not itself prescribe any particular procedure but only pro--vided that a Court under that Act is a District Court. As against that the judgment of the High Court was sought to be maintained upon the ground that where the Legislature intended that the procedure prescribed by the Code of Civil Procedure should be followed in proceedings under the Guardians and Wards Act it has expressly so prescribed.
Upon that basis it was argued that Order IX, rule 8 of the C. P. Code was inapplicable and it is in context of these argu--ments that the Supreme Court upholding judgment of the High Court made the following observations:- "This argument is not without force. Even if the procedure of the Code can be said to be attracted to proceedings under the Act where no specific provision has been made in the Act itself that must be under the terms of section 141 of the Code itself only" as far as it can be no blind or rigid adherence if she nature of the cause or matter itself gives a contrary indication. Apart from the scheme of the Act itself to which the learned counsel for the respondent has with reason adverted we are also of the view that in a proceeding under the Act the Court should not lose sight of the fact that the over--riding consideration is always the welfare of the minor. The Court in such cases is really exercising a parental juris--diction as if it were in loco parentis to the minor. This is not a jurisdiction, therefore, in which there can, by its very nature, be any scope for any undue adherence to the technicalities.
I can, therefore see nothing in the judgment of the Supreme Court which should have induced any belief in the mind of learned counsel that in the matter of limitation rule 22 of the Family Courts Rules has no application to the present case. When the second of the passages which I have reproduced has reference to proceedings under section 25 of the Guardians and Wards Act and not section 7 thereof. Nevertheless I will assume -for the purposes of the present case that learned counsel entertained a reasonable belief that 90 days was the period prescribed.
5. Learned counsel then referred me to the decision in Mst. Pans Bibi v. Mahla (AIR 1928 Lah. 488) for the proposition that an appeal under section 47 is properly presented if filed within 90 days of the judgment, the correct Article of the Limitation Act which is applicable being Article 156. This proposition, however, is not in question; concededly if rule 22 of the Family Courts Rules was not in the field 90 days would be proper period.
6. After that, however, came the decision of a Full Bench of this Court reported as Zeibunnissa v.
Mohammad Muzammil (PLD 1972 Kar. 410) and that admittedly is binding on me unless it was contrary to a decision of the Supreme Court. It may be noted, however, that the decision of the Full Bench is much later than the decision of the Supreme Court in PLD 1967 SC 402 and, although that is of course not a conclusive factor, considering that the Full 'Bench case was decided after elaborate arguments were heard not only from counsel for the parties but also from three learned Advocates appearing as amicus curiae one would expect that the decision of the Supreme Court would have been brought to the novice of this Court if it was relevant. In that case it was held that the effect of section 25 of the Guardians and Wards Act merely was to provide that a Family Court shall be deemed to be a Civil Court and that it was a deeming clause creating a legal fiction; regard bring had to the language in which section 14 of the Family Courts Act is couched, namely that it starts with the words "notwithstanding anything provided in any other law for the time being in force" the effect, it was held, was to exclude any provisions of the Guardians and Wards Act which would be contrary to section 14. It was held further that in any event section 25 was one which related only to procedure and A 'that procedure did not include a right of appeal. A right of appeal, it was held, was a creature of the statute, and, therefore, for our present purposes a creature of section 14 of the Family Courts Act. Now clearly upon this view of the law the appeal itself being provided for by section 14 the period of limitation is that which is stated in rule 22, namely, 30 days. Indeed learned counsel agreed that that is the correct legal position and did not attempt to argue otherwise; his contention merely was that ,until this decision of the High Court he was under.-r the erroneous but bona fide belief that 90 days was the proper period of limitation. I have, therefore, no hesitation in holding that appeals of the present kind lie under section 14 of the Family Courts Act B and that the proper period of limitation in regard to them is 30 days as prescribed by rule 22.
7. Now in this view of the matter the appeal is of course hopelessly out of time and the affidavit filed in support of the application under section 5 of the Limitation Act, which I am treating as if it was an application under the proviso to rule 22 (1), does not even attempt to explain the delay except on the basis that there has been only one day's delay; that is to say, it assumes that the period of limitation is 90 days. Judgment In this case was delivered on the 28th October 1971, and upon the third of November 1971 copies were applied for and delivered upon the 11th November 1971. The appeal itself was presented on the 5th February 1972. Learned counsel for the respondents points out that the Full Bench decision was published in the Law Reports in September 1972, and he argues, therefore, that at least from that time onwards the appellant could have had no reasonable ground to believe that the period of limita--petition was 90 days. I do not think this really matters since the appeal had already been filed on the 5th of February. If, therefore, the consideration that there was a Bona fide belief that the limitation period was longer is relevant then the fact that belief could not be entertained in that view of law after September 1972, is clearly besides the point.
8. Now the affidavit filed in support of the application under section 5 of the Limitation Act states that the appellant, who was serving at the relevant time at Hyderabad, had gone to his village in the District of Larkana for the purpose of celebrating Eid which in that year fell on the 25th of January. According to him there were heavy rains between the 30th of January and the god of February 1972, and it was accordingly difficult for him to come to Karachi before the 3rd February 1972. He reached Karachi on the 4th and contacted his lawyer on the same day in the afternoon and the appeal was filed on the 5th. It is, therefore, argued that one day's delay is satis--factorily explained. I have already held that in this case it was not a question of one day's delay but 61 days.
Assuming, however, even that the period of limitation was 90 days I still do not agree that it is for the appellant to explain a delay of one day only. The whole purpose of the law in prescribing a period of limitation for appeal is to provide the appellant a reasonable period of time within which he should make prepara--tions for filing of the appeal. From this period it is to be remembered that the time requisite for obtaining certified copies of the judgment is excluded by the law. To argue, therefore, that in cases of the kind that I am considering now it suffices to explain the delay of one day ii to assume that the appellant may entirely waste the whole period of limitation given to him for the purpose of preparing an appeal and then rely merely upon the fact that the one or two days that have elapsed since the period of limitation were not capable of being utilized for the purpose. The proper approach, to my mind, is that the appellant must show that his conduct throughout the period from the passing of the judgment until the filing of the appeal has been one of reasonable diligence and if, despite such reasonable diligence, he has not been able to file an appeal in time then a Court can and should condone the delay. In the present case there is not a word of explanation as to what was being done from the 11 of November 1971, when the copies were supplied up to the date, which incidentally is not specified, when the appellant left Hyderabad for his native place in order to celebrate Bid. In any view of the matter, therefore, even if I were to hold that the period of limitation was 90 days or that learned counsel bona fide so believed and that is a valid ground of condonation there Is still a large period of time in regard to which the appellant's conduct has not been explained; indeed not even an attempt has been made to explain it. I am, therefore, constrained to hold that the present appeal is time-barred.
9. I accordingly dismiss this appeal with costs.