1. ' The lower Court was barred by limitation and the delay in its filing deserved condonation.
2. ' Relevant facts giving rise to this revision, briefly put are:---Mst. Mussarat Bibi respondent was wife of Abid Ali, petitioner. They were wedded together some years ago. They lived together for a few months only and then separated. Mst. Mussarat Bibi brought a suit for divorce against the petitioner. It was decreed on Khula in her favour. Thereafter, she brought the present suit for recovery of an equivalent price of her articles of dowry retained by the petitioner. The value of dowry was assessed at Rs,24,000. Suit was instituted on 28-4-1992. Earlier to it, a similar suit was brought at Khushab but was withdrawn with permission for re-filing it on the same subject-matter.
3. ' Petitioner resisted the suit. In result of contested trial, the trial Court decreed the suit in favour of respondent on 26-5-1993. In order to file an appeal from the decree passed against him, petitioner applied for certified copies of judgment and decree of the trial Court on 27-5-1993. Certified copies of the aforesaid two documents were delivered to him on 8-61993. Exact date for preparation of certified copies was not available on present record.
4. ' Petitioner gave the certified copies of the judgment and decree of the trial Court alongwith other necessary papers to the Clerk of an Advocate at Sargodha on 8-6-1993 and also gave him Rs,500 as remuneration for filing of an appeal. He asked the petitioner to visit him two days later.
5. Thereupon, the Clerk of the counsel informed the petitioner that the appeal was filed and it was also admitted to hearing and that the petitioner need not attend on every date of hearing. He promised to appear on his behalf. However, it turned out to be a wrong information. The Clerk gave fictitious dates of hearing fixed in the appeal but when the petitioner contacted Malik Khalid Mehmood, Advocate, true facts were disclosed to him, whereupon the intervention of Malik Khalid Mehmood, Advocate, papers were returned to the petitioner by Clerk of the counsel, on 8-6-1993, and the appeal was filed then and there, through another counsel.
6. ' From the above, it shall be seen that the appeal was filed out of time and an application under section 5 of the Limitation Act, 1908 grounded upon the above explanation of facts was submitted alongwith the memorandum of appeal for condonation of delay. Presumably, application under section 5 of the Limitation Act had the support of an affidavit on facts by the petitioner. Learned Additional District Judge was not convinced of the explanation given for condonation of delay and consequently, dismissed the appeal in limine, on account of bar of limitation. Thereupon, the instant revision petition was filed in this Court.
7. ' The point for consideration would be, whether the explanation given was satisfactory and was acceptable in law for excusing the delayed filing of appeal out of time for treating it to have been presented in time for its hearing on merits. There was no dispute that the appeal was much barred by limitation. It was duty of the petitioner to explain delay of each day after the expiry of limitation prescribed for filing of appeal. It is held by the Courts that fundamental rule of guidance for exercise of discretion under section 5 of the Limitation Act for condoning delay was to see, whether the party in default claiming indulgence had been reasonably diligent in prosecuting its appeal.
8. Necessary corollary of it was that litigant who was not vigilant was not entitled to an indulgent treatment for exercise of discretion under section 5 of the Limitation Act for overlooking the act of out of time filing of appeal. No doubt, the discretion has to be exercised judicially. This requirement does not permits being swa yed by sympathy or benevolence.
9. ' Petitioner gave the papers to a Clerk of the counsel for purpose of filing of an appeal. He reposed confidence in him. He was shown to have betrayed his trust. The Clerk put off the petitioner by supplying false information. Nonetheless, the petitioner never tried to contact the counsel, nor the Court of appeal for finding out the fate of his appeal. Petitioner appeared to be negligent. There was no explanation for not caring to attend the Court hearings on the relevant dates. Ordinarily, the negligence of the agent of a party was, in law, the negligence of the party itself and will not furnish a sufficient cause for delay. A party's pleader or his counsel will for this purpose stand on the same footing as an agent and consequently, his negligence, on principle, shall give rise to the same consequences, as the negligence of the party itself and shall not furnish or constitute a sufficient cause for excusing delay. In exceptional circumstances, the negligence of the agent of a party may not always be a negligence of the party. If the party itself was diligent and vigilant, the negligence of the agent may not be its own negligence. In this case, however, the negligence was double.
10. Petitioner and his agent both suffered from carelessness, casualness and were grossly remiss.
11. Upon this view of the conduct of the petitioner, he failed to make out a sufficient cause for condonation of delay. Further, lower Court exercised the discretion against the petitioner and declined to condone the delay. Where an order was passed by the lower Court in exercise of discretion either allowing or refusing an application to extend the time, it ought not to be interfered in revision, unless the lower Court came to its conclusion on a wrong view of law or had omitted to consider relevant material bearing upon proper exercise of discretion, whether there was sufficient case for late presentation of the appeal or application. Seen in the above perspective, lower appellate Court took a correct view of law and also the circumstances bearing upon the exercise of discretion for holding that the delay was not condonable. There was no jurisdictional defect in the order of the lower Court.
12. ' In result, civil revision fails and is dismissed in limine.