ORDER CH. KHURSHI AHMAD, J.- Short legal question for decision in civil revision was whether the appeal filed in the Court below was barred by limitation and its delayed institution deserved to be condoned under Section .5 of the Limitation Act, 1908. Lower Court held it barred by limitation and declined to overlook its delayed filing out of time.
2. Relevant facts bearing on the decision of the question briefly set out were these:- Respondents No. 1 and 2, namely, Muhammad Ibrahim and Muhammad Yasin instituted a civil suit for partition for separating their share from a residential house. They claimed ownership of 3394/4338 share in it. Defendant No.2-Muhammad Nawaz petitioner resisted the suit. Necessary issues were raised in it. On examination of the evidence adduced at the trial, the suit was decreed on 143.1993, ^nd, a preliminary decree for separation of the plaintiffs share in the house was made. A Local Commissioner was appointed to suggest its mode of partition.
3. Aggrieved of the preliminary decree, defendant No.2-Muhammad Nawaz preferred an appeal in the District Court at Kasur on 5.6.1993. It . Was assigned to a learned Additional District Judge in the district for its hearing.- Memorandum of appeal was accompanied by an application under Section 5 of the Limitation Act, 1908 for condonation of the filing of the appeal out of time.' Ground of illness was taken in it for excusing of the delay. In support of illness, a medical certificate was annexed with it. Plea of illness was not considered sufficient cause by the Court hearing the appeal.
It dismissed it as barred by limitation on 14.9.1994. The judgment given in appeal was in revision before this Court. So, the crucial point for decision was the bar of limitation and condonation of delayed filing of appeal on account of illness of the petitioner.
4. Reference to material dates shall be helpful. The trial Court gave the judgment, on 143.1993. It was pronounced in open Court, appellant applied to the Copying Agency for certified copies of the judgment and decree of the trial Court, on 15.3.1993. These were prepared on 21.4.1993. Delivery of certified copies was taken on 22.4.1993. The appeal was actually filed, on 5.6.1993. Upon deducting the time requisite for obtaining certified copies of the judgment and decree appealed from, the last day for filing the appeal fell, on 22.5.1993, in case date of actual delivery of the certified copies was included in the time-requisite." In case, the date of preparation of certified copies was taken as the time-requisite," the appeal was required to be filed on 21.5.1993. By Limitation (Amendment)Act, 1991 (Act xm of 1991), subsection (5) was added after subsection (4) to Section 12 of the Limitation Act, 1908. It reads:- "(5) for the purposes of subsections (2), (3) and (4), the time requisite for obtaining a copy of the decree, sentence, order, judgment or award shall be deemed to be the time intervening between the day on which an application for the copy is made and the day actually intimated to the applicant to be the day on which the copy will be ready for delivery."
It was not case of the appellant that the Copying Agency, had not intimated any day to him for the preparation and delivery of certified copies by it. Therefore, the time requisite rightly deductible under Section 12 of the' Limitation Act commenced from the date of the application for copies and their preparation- by the Copying Agency, i.e, 15.3.1993 to 21.4.1993. In Fateh Muhammad and others v. Malik Qadir Bakhsh - 1975 S.C.M.R. 157, their lordships of the Supreme Court observed, "It is well settled that the time requisite for obtaining copy of order within the meaning of section 12 of the Limitation Act, 1908 means only the interval between the date of application for supply of copy and the date when it is ready for delivery. Even during this interval, due diligence on the part of the litigant is required by law, and no delay, unless such as was caused by circumstance over which he had no control and which he could not by due diligence be avoided, can form part of time "requisite" for obtaining the copy. The time between the date on which the copy is ready for delivery, and the date on which the applicant chooses to take delivery thereof is not a portion of the time."requisite" for obtaining a copy." In the later portion of the judgment, it was observed that delay of each day, after expiry of the prescribed period of limitation, unless satisfactorily explained, was fatal. In para 3 of the application for condonation of delay, the appellant averred that he had applied for copies on 153.1993 and these were received by him on 21.4.1993. His statement about delivery of the certified copies on 21.4.1993 did not coincide with the date of delivery given in the endorsement by the Copying Agency on the judgment and decree of the trial Court. It showed that delivery was taken on 22.4,1993. Para 4 of the petition under Section 5 of the Limitation Act averred that the appellant fell ill, on 163.1993, and upon recovery ness filed the appeal. He further added that upon his recovery from illness, holidays for Eid-ul-Azha followed and the appeal was filed on expiry of these holidays. These averments were supported by his affidavit. His alleged illness was supported by the medical certificate from a private medical practitioner of Kot Murad Khan, district Kasur. Medical practitioner was Dr. Munir Ahmad Gohar, M.B.B.S.,R.M.D.C. It was issued on 163.1993 by him. Illness described in it was "fever for days". The certificate prescribed medicines and advised rest till recovery from fever. Nature of fever and its severity was not disclosed. Precise date or recovery from fever was also not divulged in the application for condonation of delay. Certified copies of the judgment and decree of the trial Court were taken, on 22.4.1993. Presence of the appellant before the local commissioner appointed by the trial Court was noticed by him, on 233.1993. Appellant appended his signatures on the report against him name at serial No.4(on page 137 of the trial Courts i.e;. Obviously, by then he must have recovered from 'fever'. His presence before the local commissioner on 23.5.1993 reinforced it. Therefore, assuming that the appellant was ill for some period and on account of illness was precluded to prefer the appeal earlier, there was no bar for him to i.e his appeal on 233.1993 or the day following it. As far holidays on account of Eid-ul-Azha, the Courts were closed from It to 3rd June, 1993, vide, notification from the High Court dated 203.1993. 4th June, 1993 was Friday. After Eid-ul-Azha holidays, the Civil Courts reopened on 5.6.1993 i.e.i.e Saturday. In order to avail of the benefit under Section 5 of the Limitation Act, 1908 for overlooking the delay on account of sufficient cause, the party in default was required to satisfy the Court that he had sufficient cause for not filing the appeal right up to the date on which the appeal was actually presented. In other words, he was obliged to satisfactorily account for each day's delay. Unless, the delay was properly accounted for to the satisfaction of the Court, it had no authority in law to condone it. Sickness per-se was not a sufficient cause for overlooking the delay in filing an appeal or application, unless the effect of it was