1. This Miscellaneous Appeal No,22 of 1997 filed, under section 64(2} of the Provincial Employees Social Security Ordinance, 1965 is directed against an order dated 30-1-1997 passed by Social Security Court.
2. The facts of this appeal need not be reproduced as the same have been stated in the memo of appeal as well as in the impugned order.
3. Today C.M.A.S. Nos. 474 of 1997 and 475 of 1997 are fixed for hearing. The first one is an application under section 5 of the Limitation Act, for condoning the delay in filing appeal while the later is under Order 39 rules 1 and 2, C.P.C. read with section 151, C.P.C. for .suspension of impugned order pending decision of this appeal; I would like to take up the first one because as per said application it is to be decided whether the delay in presenting appeal after the prescribed period limitation could be condoned in the circumstances of the case.
4. The admitted position is that the impugned order was passed on 30-1-1997, while application for grant of certified true copy of impugned order was made on 30-1-1997, true copy of the said order was made ready on 15-2-1997 and it was delivered on 26-2-1997 when the appeal was presented and filed on 14-5-1997.
5. Under section 64(3) of Provinicial Employees Social Security Ordinance, 1965, the period of limitation for filing an appeal shall be thirty days and under subsection (4) of section 64 of the said law provision of sections 5 and 12 of the Limitation Act shall apply to appeals. Admittedly, this appeal was filed after 46 days after the bxpiry of thirty days even after the recipt of the impugned order. In the circumstances, the appellant also filed application under section 5 of Limitation Act for condoning the delay in filing appeal, which application is supported by an affidavit of Major (Retd.)
6. Tariq Saeed, the Manager of the appellant's company. learned counsel for appellants has referred to paras. 3/4 of the said affidavit for the purpose of condoning the delay in filing the appeal. Paras.
7. 3 and 4 run :-- "3. That there was change in the overall set up of the Executives inasmuch as the Finance Director and the Company Secretary. Furthermore the then Human Resources Director Mr. Moughal also . retired. Since these two Executives were dealing with the matter, and were well-conversant with the facts of the case the files and papers were in their possession and hence not readily available to the appellant company for filing of the ( appeal within time.
4. That these papers were made available to the appellant in the first week of May, 1997 and it is thereafter that the present appeal is being filed before this Humble Court."
8. Learned counsel for appellants has argued that because of the retirement of the Company's Directors, the appeal could not be filed within prescribed period of limitation which according to him would be sufficient cause within the meaning of section 5 of Limitation Act for condo nation of delay in filing the instant appeal.
9. Learned counsel for respondents has argued that admittedly, the appeal has been filed after 46 days of delay and the appellants have not accounted for each day's delay and the affidavit filed was vague and it did not contain any material which could account for 46 days delay. He further argued that there was no material to show as to when the said Directors retired and who succeeded there and when and how the company's business was being run in absence of those two Directors or that there was none except the said directors who retired to pursue the proceedings of the case when admittedly the copy of the impugned order was supplied to the appellants on 26-2-1997. Learned counsel further argued that no suficient cause has been made out, therefore, the application for condo nation of delay for filing appeal is liable to be dismissed, consequently, the appeal as well. Reliance is placed upon Khairoo and another v. Muhammad Yaqoob and 7 others (1987 SCM R 1910) wherein their Lordships or Supreme Court have observed that because of the delay, a valuable right has accrued to the respondent in filing the petition for which there has been no valid justification; (ii) Province of Baluchistan v. Sardar Muhammad Usman Khan Jogezai (1986 SCM R 2010) wherein their Lordships of Supreme Court have observed that delay of 20 days in filing petition has given precious rights to the opposite party for the lapses on the part of the petitioner and in the stated circumstances no case for condonation of delay has been made out; (iii) Wali Muhammad and others v. Inamul Hassan Khan and others (1985 SCM R 352) wherein their Lordships of Supreme Court have observed that period of 20 days' delay in filing petition without explaining the each day's delay would not be sufficient ground for condo nation of delay, considering that the valuable right in the meanwhile had been created in favour of respondent, which could not be lightly interfered with by accepting the time-barred appeal of the appellants (iv) Province of East Pakistan v. Abdul Hamid. Darji and others (1970 SCM R 558) wherein their Lordships of Supreme Court have observed: "As to what is or is not sufficient cause for the purposes of an application under section 5 of the Limitation Act, it is manifest that no hard and fast rule can be laid down nor is it desirable that this should be done. Each case has to be considered on its own facts. What may be sufficient in one case may well not be sufficient in another case, but this much is certain that whereby lapse of time a valuable right has accrued to the other side, it should not be lightly taken away. In an application under section 5 of the Limitation Act it is the duty of the party seeking condo nation to explain each day's delay and unless this is done, the delay should not be condoned, particularly, where valuable rights have accrued to the other side. So far as limitation is concerned the Government cannot claim to be treated in any manner differently from an ordinary litigant, because of the fact that the Government enjoys unusual facilities for the preparation and conduct of their cases and its resources are much larger. If in spite of these facilities the Government cannot comply with the requirements of the law of limitation, then it is for it to take steps to have that law changed and not to ask the Courts to give a different interpretation to its provisions."
(v) West Pakistan Agriculture Development Corporation and two others v. Soomar and two others (PLD 1984 Kar. 190) wherein learned Judge in Chambers has observed at page 193: "Under section 5 of the Limitation Act the Court is empowered to exercise its discretion for condoning the delay if from the facts and circumstances of the case it is satisfied that the appellant due to sufficient cause was prevented from preferring the appeal within the prescribed time. Sufficient cause has nowhere been defined nor can a fixed rule be laid clown to determine what is sufficient cause. It entirely depends upon the facts and circumstances of each case which may differ from one case to another. Therefore, one has to examine the facts and ground set out by the appellant. The discretion to be exercised by the Court should be in a judicial manner. Neither it should be arbitrary nor very liberal. If the discretion is exercised on wrong notion of law it will not be an exercise of judicial discretion. The Court has to see that while exercising discretion no injustice is done to any party. The notions of justice are not to be extended only to comfort the appellant but there is another party before the Court and he is the respondent. The Court has, therefore, to see that justice is done to both the parties according to law. The best rule to guide the discretion is whether the appellant has acted with reasonable diligence in presenting the appeal.
10. In an application under section 5 of the Limitation Act it is the duty of the party who is seeking condonation of delay, to explain the delay of each and every day and unless it is satisfactorily explained delay cannot be condoned. It is to be borne in mind that by lapse of time a vested right is accrued to the other party of which it cannot be deprived lightly (41 Mad. 904).
11. In the present case as explained above the delay from obtaining certified copy of the judgment of the trial Court upto filing the appeal has not been satisfactorily explained. The entire facts show that file had been moving from one table to another and from one officer to the other officer unmindful of the limitation provided by law. It seems that the appellants were completely unconcerned of the fact that the law provides a period of limitation for filing appeal. Their officers and agents were taking their own time in their own manner. In these circumstances how can it be concluded that the appellants have acted diligently?"
12. In the instant case, there has been delay of 46 days in filing appeal whereas the appellants in affidavit have not accounted for each day's delay, only vague statement has been made that the directors retired, therefore, the appeal could not be filed in time. The said ground for condo nation of delay could not be said to be sufficient cause within the meaning of section 5 of Limitation Act considering, the fact that valuable and precious rights were created in favor of respondents for effecting recovery of arrears against the appellants. Accordingly, this application under section 5 of Limitation Act is dismissed, consequently, C.M.A. No, 475 of 1997 has become infructuous, therefore, both the applications are dismissed, so also this appeal being time barred.