1. ' Sole question for decision in the civil revision preferred by the petitioner from the judgment and decree of learned Additional District Judge, Gujrat dated 24-2-1994 was, whether delay of, four days in filing the appeal out of prescribed time was excusable in the facts and circumstances of the present case. The question arose out of the facts stated below: ' Petitioner was resident of Jaranwala. She was married to one Sheikh Muhammad Mansoor of Chakwal. He was in Government service. He expired on 21-11-1987, leaving behind him surviving his father namely Sheikh Abdul Ghafoor, a few brothers and sisters and also the petitioner as his widow. He left no issue.
2. ' On 9-10-1988, Sheikh Abdul Ghafoor applied to the Civil Court at Chakwal for grant of succession certificate in respect of the assets of his deceased son. Those were of considerable value. Petitioner was not shown as heir of the deceased in the application for grant of succession certificate. She applied to the Civil Court for becoming a party to the succession certificate proceedings. The then applicant to succession certificate resisted her application. The trial Court turned down the request on 28-3-1991, on the ground that she was divorced by the deceased in his lifetime. Eventually, succession certificate in respect of the total assets of the deceased Sheikh Muhammad Mansoor was granted to the applicant-Sheikh Abdul Ghafoor on 12-11-1988. Subsequent to it, vide order dated 28-3-1991, further amounts were added in the succession certificate.
3. ' On 30-6-1990, petitioner instituted a civil suit for her one-fourth share in the assets of her deceased husband. She denied divorce to her by her deceased husband in his lifetime and asserted that marital tie subsisted between them till the last. Sole defendant to the suit was Sheikh Abdul Ghafoor, father of the deceased Sheikh Muhammad Mansoor. He contested the suit and submitted that the petitioner was effectively divorced by his son in his lifetime and, therefore, she was not entitled to a share in his assets. A few preliminary objections were also raised to the maintainability of the suit. Issuance of succession certificate and turning down of the application for her impleadment as party to the succession certificate proceedings were termed as insuperable bars to the trial of the civil suit instituted by the petitioner. The trial Court raised appropriate issues for decision. Thereupon, it took evidence from the parties. At the end, it dismissed the suit, on 14-4-1993, on the ground that the petitioner was divorced by husband in her lifetime and, therefore, she could not be his heir for a share in his assets. It may be noticed that divorce was oral and was allegedly given in the year 1975.
4. ' Petitioner applied to the Copying Agency for obtaining certified copies of the impugned judgment and decree of the trial Court on 17-4-1993. Certified copies were prepared on 22-4-1993 and were shown to have been delivered on the same day. It was not known on the existing record as to who had taken the delivery of certified copies from the Copying Agency.
5. ' Memorandum of appeal was prepared by the learned counsel for the petitioner on 24-5-1993 but the same was actually presented to learned District Judge, Gujrat on 25-5-1993. As the appeal was barred by time by delay of four days, an application under section 5 of the Limitation Act, 1908 accompanied it for excusing the delay on account of illness of the appellant. A medical certificate from a Doctor was annexed with section 5 application. In addition, the averments in the application about illness were supported by her personal affidavit. Respondent controverted the averments contained in the application under section 5 of the Limitation Act. Learned Additional District Judge did not believe the plea of sickness; refused to condone the delay of four days and dismissed the appeal on this score as barred by limitation. In this view, he did not touch merits of the case before him. Against his decision, the petitioner has come up in revision to this Court. Revision petition was admitted to hearing on 5-4-1994 and was heard today in presence of learned counsel for the parties.
6. ' On behalf of the petitioner, it was strenuously contended by her learned counsel that she had a strong case on merits inasmuch as in face of section 7 of Muslim Family Laws Ordinance, 1961, alleged oral divorce without a notice to the Chairman, Arbitration Council was ineffective to create any legal result and that the delay of four days in filing the appeal deserved to be overlooked on account of petitioner's sickness for saving the decision of the appeal on its merits. It was argued that section 7 ibid was a live provision of law and without recourse to it, divorce could not be rendered effective. He referred to the case of Mst. Kaneez Fatima v. Wali Muhammad and another PLD 1993 SC 901 to support his proposition. As far condonation of delay of four days, it was argued that the lower appellate Court erroneously turned aside the medical certificate without calling for its proof from the petitioner. As against it, learned counsel for respondent vehemently argued that in terms of decision in case of Allah Dad v. Mukhtar and another by Shariat Appellate Bench, Supreme Court of Pakistan reported as 1992 SCM R 1273, service of notice under section 7 of Muslim Family Laws Ordinance, 1961 was unnecessary. As regards delay of four days, it was urged that medical certificate was maneuvered to overcome the obvious delay that the petitioner was obliged in law to account for each day's delay after the expiry of the period of limitation prescribed for filing of appeal by her. Later judgment of the Supreme Court reported as PLD 1993 SC 901 supported the petitioner's case to the effect that section 7 of Muslim Family Laws Ordinance, 1961 was a live provision of law and was required to be observed in the matter of pronouncement of divorce for making it effective in accordance therewith.
7. ' Since the lower appellate Court did not decide merits of the case and confined itself merely to the question of delayed filing of appeal out of time, it was unnecessary to further comment of the proposition because if the delay of four days was excused, the matter shall have to be remitted to the lower appellate Court for its examination and decision afresh on merits of the cause. Therefore, I shall confine myself to the question of delay only and examine whether in the facts and circumstances of the case, it was excusable for decision of the appeal on merits. Medical Officer Tehsil Headquarters Hospital, Jaranwala gave a certificate that the petitioner was examined by him as an our-door patient on 17-4-1993 and found suffering from jaundice and advised her bed- rest for a period of six weeks with effect from the aforesaid date ending on 28th May 1993. On 22-5- 1993, she was examined by him again and found fit to resume work. Certified copies were found to have been delivered on 22-4-1993. Record did not show as to who had received the delivery of certified copies. Petitioner was a lone widow. She was a semiliterate village woman. She served as a house wife. She was resident of Jaranwala. Initially, civil suit was instituted by her in the Civil Court at Chakwal. Later, it was transferred to the Civil Court at Gujrat. Jaranwala was situated at considerable distance from city of Gujrat. The suit was tried at Gujrat. Petitioner herself prosecuted it diligently. Appeal from the decision lay to the District Court at Gujrat. Petitioner was expected to manage herself filing of the appeal at Gujrat. Soon after the pronouncement of the judgment by the trial Court, application for certified copies was made by or on her behalf. ' said above, certified copies were taken on 22-4-1993. That was the period of her sickness.
8. Obviously, she must have taken a few days after her recovery to collect the copies and to file the appeal from the judgment given against her. She merely lost four days beyond the prescribed period. Courts have taken the view that mere sickness was not a sufficient cause for excusing delay in filing an appeal or instituting other proceedings out of time unless the effect of the illness was such that as in the circumstances will afford reasonable excuse for delay. Whether the sickness was such was a question of fact to be decided in the circumstances of particular case.
9. Likewise, illiteracy of a party per se was not a sufficient cause for condoning delay. However, the fact that the party was a Pardahnashin lady may, in some cases furnish grounds for exercising discretionary powers contained in section 5 but the ground can be available only where this fact had prevented the party from presenting the appeal herself. In case of Union Territory of Tripura and others v. Umesh Chandra Das AIR 1970 Tripura 61, relying on the previous case-law, it was held by the Court that the expression "sufficient cause" in section 5 of the Limitation Act, 1908 should receive a liberal construction so as to advance cause of substantial justice. In view of this state of law and the facts and circumstances unfolded at the hearing and also presented before the lower appellate Court, I am convinced that subject of condonation of four days delay was not examined in the correct perspective with the consequence that a wrong conclusion was given on it.
10. ' In result, civil revision is allowed and on setting aside of the impugned judgment and decree of the lower appellate Court, delay of four days is condoned and the case is remanded to the Court below for hearing of the appeal afresh on merits. As for costs in this Court, parties shall bear their own. Records shall be returned.