' Respondent No,1 filed a suit for possession of portion of the house situate in village Tulsa Hardo, Tehsil and District, Rawalpindi on the ground that Sardar Muhammad Alam, predecessor-in- interest of Saghir Ahmed and respondents Nos. 2 to 7 were given two rooms temporarily to be returned at the time when the plaintiff needs and requires the same, for the re-building of his house but subsequently he refused to hand over the possession of the said rooms, hence the suit for possession was filed by respondent No,1 in the Civil Court, Rawalpindi. This suit has been contested on the ground that the site of the said suit house was purchased in January, 1948 from one Ghulam Hussain whereupon the said construction was raised by the debt which is in possession of the defendant since 1952 and that the plaintiff has no title therein. On the basis of the pleading of the parties the following issues were framed:--
(1) Whether the plaintiff is owner of the disputed property and the defendant is occupying the same as licensee? a.P.P.
(2) Whether the plaintiff is estopped by his conduct to bring this suit? O.P.D.
(3) Whether the suit is time-barred? O.P.D.
(4) Whether the suit has been properly valued for the court-fee and jurisdiction? O.P. Parties.
(5) Whether the defendant has acquired the ownership over the suit property by virtue of adverse possession? O.P.D.
(6) Relief.
' After recording of evidence vide judgment and decree dated 9-6-1984 learned Trial Court dismissed the suit. Appeal filed by the respondent was accepted and the case was remanded for fresh trial by the learned District Court vide judgment and decree dated 11-12-1984. In post-remand proceedings further evidence was recorded on issues framed by the learned lower Appellate Court and ultimately vide judgment and decree dated 16-1-1986 the suit was decreed. The petitioner submitted an application for supply of certified copy of judgment and decree passed by the learned Trial Court on 19-1-1986. The copies were supplied to the petitioner on 22-1-1986 hence calculating the period of 30 days provided under Limitation Act for filing of First Appeal before the District Court plus the time requisite for supply of the certified copies of the judgment and decree passed by the learned Trial Court the last day for filing of the appeal was 19-2-1986. The appeal, however, was filed on 20-2-1986 which is accompanied by an application seeking condonation of delay on the ground of ailment of the appellant. This appeal was admitted subject to objection of limitation. At the time of final hearing of the appeal objection of limitation was pressed by the contesting respondent. The ground mentioned in the application for condonation of delay which is supported by an affidavit is that the applicant was a poor man and was a Government servant. He suddenly fell ill on 8-2-1986 and could not contact his counsel for filing of appeal. After recovery he contacted his counsel and filed the appeal when it transpired that the appeal was barred by time by one day. Appended certificate regarding the petitioner's ailment is issued on 8-2-1986. Whereas another certificate issued by the Audit Officer of the petitioner's department has been obtained on 23-2-1986, and is based upon the aforementioned medical certificate dated 8-2-1986. Appellate Court after recording of his statement and hearing arguments took the view that the petitioner could have contacted his counsel earlier to 20-2-1986. Therefore there was no sufficient cause to condone the delay in filing of the appeal, hence, the appeal has been dismissed vide judgment and decree dated 31-1-1993. This civil revision has been filed by the petitioner who was appellant before the learned lower Appellate Court whereas the other heirs of Mehboob Alam, deceased have been impleaded as respondents before the First Appellate Court and also before this Court.
Sh. Zamir Hussain, Advocate has appeared on behalf of the appellant whereas Mirza Anwar Baig, Advocate has appeared on behalf of the respondent No,1 and Mr. Bashir Ahmad Ansari, Advocate has appeared on behalf of Mr. Tanvir Bashir Ansari, Advocate for respondents Nos.2 to 7 who were co-defendants with the petitioner.
2. Learned Counsel for the appellant has argued that medical certificate dated 8-2-1986 clearly proves that the appellant was suffering from serious ailment with effect from 8-2-1986 to 20-2- 1986, therefore, the period of limitation for filing of appeal having expired during ailment of the petitioner, it was a fit case for condonation of delay of one day and hence the discretion has not been judicially exercised in this case. Learned counsel further contended that the application seeking condonation of delay is accompanied by affidavit and no counter-affidavit has been filed and another certificate dated 23-2-1986 which has been issued by the Departmental Authorities with whom appellant was serving clearly proves that the appellant was on medical leave with effect from 8-2-1986 onward but the certificate has not at all been taken into consideration by the learned First Appellate Court, therefore, the impugned order is based upon misreading of evidence and hence is arbitrary and it is contended that certificate Exh.A1 has been issued by the Army Doctor who is, M.B.,B.S., F.R.C.S. And is Surgical Specialist and proves beyond doubt that the petitioner was seriously ill. The petitioner is also proved to be on medical leave with effect from 8- 2-1986 to 20-2-1986 as per certificate dated 23-2-1986 issued by Audit Officer therefore, the learned First Appellate Court should have exercised discretion in favour of the petitioner and at any rate if the Court was not satisfied about the sufficiently of cause of delay in filing of the appeal on the basis of present record an opportunity should have been given to the petitioner to lead evidence in support of his contention to the effect that the appeal was filed after delay of one day due to circumstances beyond the control of the petitioner. In support of his contention learned counsel has placed reliance on the law declared in the following cases:--Muhammad Hussain v.
Fateh Muhammad and another 1991 CLC 704, National Bank of Pakistan v. Muhammad Moiz and another 1991 CLC 1260, Pakistan through Secretary, Communication, Islamabad v. Messrs Habib Insurance Company Ltd., Karachi 1991 CLC 1270, Nazar Din and others v. The Secretary, Rural With Powers of the SC (L), Punjab, Lahore and others 1983 SCM R 1188, Subedar Muhammad Hussain v.
Mst. Shah Begum and others 1990 M LD 2100, Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 and Mst. Qabal Jan v. Mst. Habab Jan and 9 others 1992' SCMR 935.
3. Conversely, the learned counsel for the respondent has argued that as per statement made by the petitioner on the Court on 22-2-1986 which is reproduced earlier:-- {{URDU TEXT}} ' it is quite clear that the petitioner went to the Doctor on 19-2-1986 and that he was suffering from fever and stomach trouble hence it cannot be said that the petitioner was not in a position to visit the Court and to ask the learned counsel to file an appeal on 19-2-1986 which was the last date for filing of the appeal. The learned counsel further contends that in this statement it has been stated that the certificate was obtained on 19-2-1986 whereas the date of the certificate Exh-Al which has been relied upon in support of his contention besides being on a printed form and even not legible is dated 8-2-1986. It clearly shows that it is a fabricated document and no reliance could have been placed thereon. Similarly, the other certificate upon which reliance has been placed is issued, by some Audit Officer on 23-2-1986 during the pendency of the appeal and hence merely as per this certificate it cannot be said that the petitioner was actually suffering from ailment which could have prevented the appellant to file appeal within time. Learned counsel further contended that the certificate which is reproduced as under:-- ' BOARD OF INTERMEDIATE & SECONDARY EDUCATION RAWALPINDI.
' No,389/A ' Dated 23-2-1986.
' Audit Officer ' Certified that Mr. Saghir Ahmad, Naib-Qasid, remained on leave with effect from 8-2-1986 to 20-2- 1986 due to serious illness, as per medical certificate provided in support of his illness and under the advice of Medical Officer.
(Sd.)
(Raja Adalat Khan), Audit Officer. ' clearly shows that it has been issued on the basis of certificate dated 8-2-1986 issued by the Doctor referred to above and therefore, it has no independent evidentiary value and therefore, even if has not been specifically considered, it cannot be said that any prejudice is caused to the petitioner. According to the learned counsel the fact remains that the appeal has been filed after expiry of period of limitation and under section 3 of the Limitation Act, the same was liable to be dismissed. Unless and until sufficient cause for condonation of delay was shown, as a valuable right had accrued to the respondent by lapse of time, delay could not have been condoned, and as in this case sufficient cause was not shown the delay has rightly not been ,condoned by the learned First Appellate Court and hence the impugned order having been passed in exercise of discretion being not whimsical is not liable to be interfered with in exercise of revisional jurisdiction of this Court. In support of his contention learned counsel has placed reliance on the following cases: Chiragh Din v. Mushtaq Muhammad and another PLD 1975 Kar. 1025; MA. Hameed etc. v. Syed Hameed Hussain, Addl. S & R.C., Sargodha and 4 others 1976 SCM R 174, Syed Alamdar Hussain v.
Muhammad Ramzan and 5 others 1976 SCM R 347, Ghufran Ahmad Rana v. Punjab Labour Court No, 3 and others NLR 1983 SCJ 189, Mushtaq Ahmad Khan v. Nasimur Rehman (1981 CLC 137), WAPDA v.
Rana Aslam Ice Factory PLD 1991 Lah. 132 and Wasal alias Nil v. Muhammad Amjad PLD 1985 Lah.
56. Learned counsel has further contended that the delay was not condoned even in those cases whereof delay was only for one day and medical certificate of printed form was not relied upon by the Hon'ble Supreme Court. In support of his contention learned counsel has placed reliance on the cases of Manzoor Hussain v. Sajawal 1983 SCM R 465, Nazar Din v. The Secretary, Rural with powers of the S.C. (L) Punjab, Lahore 1983 SCM R 1188, Muhammad Nawaz v. I.-G. Of Police, Punjab 1981 PLC (C.S.) 492 and Bhoop Khan v. Additional Settlement Commissioner 1980 SCM R 782.
4. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. The petitioner as well as respondents Nos.2 to 7 were im pleaded as defendant in the main case as their predecessor during the pendency of suit died. The decree for possession which was passed against the appellant and the respondents Nos.2 to 7 should have been challenged ordinarily by all the judgment-debtors. It is not the case of the petitioner that he was not on good terms with the other defendants/respondents who are his brothers and sisters.
The certified copies were obtained by the petitioner on 22-1-1986. Last date for filing of the appeal was 19-2-1986 on which date he has said to have been suffering from fever and stomach trouble.
As per his own statement recorded before the learned first appellate Court he went to the Doctor to get medicine on 19-2-1986. Consequently as per his own statement it cannot be said that the petitioner was incapacitated to such an extent that he could neither have approached his advocate himself nor could have authorised or instructed any one of his brothers and sisters against whom a decree has also been passed, to file the appeal in the Court even on the last date of limitation. Even if it is presumed that the petitioner was suffering from fever and stomach trouble it cannot be said that non-filing of the appeal on 19-2-1986 was for the reason beyond the control of the petitioner. The certificate issued by the doctor is dated 8-2-1986 whereas in his statement the petitioner has stated that he obtained the certificate on 19-2-1986 therefore, no reliance can be placed on the said certificate which besides being on printed form is also not legible and appears to be a fabricated document. The certificate issued by the Audit Officer is based upon the above- referred medical certificate. No extract from the record of the department has been produced which could show that the petitioner was on medical leave during the period from 8-2-1986 to 20- 2-1986. Merely because an affidavit filed by the petitioner has not been controverted will not prove that the delayed appeal was filed on account of a sufficient cause. The cases cited by the learned counsel for the petitioner in support of his case are distinguishable on facts and law declared therein and are not attracted to the facts and circumstances of the case. There is no cavil with the proposition that period of even more than one day can be condoned for sufficient cause and if necessary the Court could hold inquiry regarding the sufficient cause of delay. But there is also no cavil with the proposition that gross negligence delay cannot be and should not be condoned even for one day. As per law declared in cases cited by the learned counsel for the respondents it stands established that the delay of each day is to be explained by the litigant and condonation of delay is not to be granted as of right. In case where condonation is sought on account of ailment it has to be shown that the litigant was incapacitated to such an extent that he could not have approached the Court himself or through agents. Stereo type medical certificates on printed form are not to be relied upon. Passing of and relating to condonation of delay order being discretionary in nature is not liable to be interfered with in revisional jurisdiction of this Court unless and until the same is shown to have been passed arbitrarily and whimsically as held in case Secretary, Finance Division, Government of Pakistan and 2 others v. Muhammad Iqbal Solangi 1993 SCM R 837 = 1993 PLC (C.S.) 877. In the case in hand keeping in view the facts and circumstances of the case it was not at all necessary to hold further inquiry as even as per position taken by the petitioner himself, he was not suffering from ailment of the type which could have prevented him from approaching the Court and filing appeal within time. It is very strange that he could approach the doctor on 19- 2-1986, which was the last day for filing of the appeal, but could not approach the Court or his lawyer himself or through his agent or brother to file an appeal. This is a case of gross negligence on part of the petitioner and hence learned first appellate Court in exercise of his discretion has rightly refused to condone the delay on judicious grounds. The impugned order therefore, cannot be said to be arbitrary or whimsical, hence, no case is made out for interference in exercise of revisional jurisdiction of this Court.
' Revision petition is, therefore, dismissed. The parties are left to bear their own costs.