Civil Suit No.381/1 of 1996 way instituted by Haider Shah son of Abdullah Khan resident of Katta Kana, District Kohat against Zar Badshah son of Hazrat Shah and others, for declaration-cum- permanent injunction in respect of land located in Khasra No.292 situated in Mauza Katta Kana, Kohat.
2. The suit was contested by defendant No. 1 alone on all grounds legal as well as factual and claim of the plaintiff was repudiated. The remaining defendants did not join the proceedings and they were proceeded against ex parte. Necessary issues arising out of the pleadings of the parties were formulated and matter was fixed for recording the evidence of the plaintiff. Two witnesses were examined on behalf of the plaintiff and case was adjourned from time to time on one pretext or the other. Resultantly, learned Senior Civil Judge Kohat, seized of the matter, resorted to the provisions of Order 17, rule 3, C.P.C. And dismissed the suit with costs by virtue of his judgment and decree, dated 7-11-2000, holding that available material does not support the case of the plaintiff.
3. Feeling aggrieved, an appeal accompanied by an application for condonation of delay under section 5 of the Limitation Act was preferred which was dismissed in limine through order, dated 7- 4-2001 on the point of limitation.
4. Haider Shah petitioner has filed instant civil revision challenging the impugned judgments and decrees of the Courts below on variety of grounds.
5. Mr. Muhammad Zahir Shah. Advocate for the petitioner contended with vehemence that having regard to the facts and circumstances of the case, the learned trial Judge had no justification to press into service the provisions contained in Order 17, rule 3, C.P.C. And close the evidence of the plaintiff-petitioner and dismiss his suit. The ` learned counsel also contended that the first Appellate Court had no justifiable reason to ignore the application of the petitioner for condonation of delay and dismiss the appeal in limine treating the same as barred by time. The learned counsel further submitted that the appeal has been disposed of in a slip-shod manner without application of independent mind which has prejudiced the interest of the petitioner. Concluding the arguments a prayer for remand of the case for a decision afresh was also made.
6. Mr. Mazullah Barkandi, Advocate, learned counsel for the contesting defendant-- respondent controverted the arguments of learned counsel for the petitioner and supported the impugned judgments and decrees maintaining that conduct of the petitioner is clearly indicative of the fact that he was not in a mood to ensure quick disposal of his suit which obliged the learned trial Judge to resort to provisions of Order 17, rule 3, C.P.C. And dismiss the suit. He relied on S. Tasleem Ahmad Shah v. Sajawal Khan and others (1985 SCM R 585) and Zahoor Ahmad v. Mehra and others (1999 SCM R 105). The learned counsel also defended the finding of the Appellate Court on the point of limitation and reiterated that appeal having been filed after expiry of the statutory period of limitation, was rightly dismissed as time --barred.
7. Having heard the arguments of learned counsel for the parties in the light of the material on record and the case-law cited at the bar I find myself in agreement with learned counsel for the respondent that most of the adjournments had been granted by the trial Court at the request of the petitioner and no serious effort seems to have been made on behalf of the petitioner to conclude the trial. In this state of affair, the learned trial Judge was quite justified to resort to penal provision of Order 17, rule 3, C.P.C. And close the remaining evidence of the plaintiff petitioner. The order, dated 7-11-2000 seems to have been passed in were of safe administration of A justice. It needs no reiteration that penal provisions can only be invoked if the delinquent party is guilty of contumacy and obduracy. Irshad Ali and another v. Munawar Khan (2001 CLC 1899).
8. Adverting to the finding of the First Appellate Court regarding limitation it may be observed here that suit of the petitioner was dismissed through judgment and decree, dated 7-11-2000 which was maintained in appeal. The petitioner did not apply for supply of attested copies within time but moved an application on 5-1-2001 and copies were provided to him on 16-1-2001. He remained silent till 28-1-2001 and filed appeal on 29-1-2001. The appeal found to have been filed after expiry of limitation was rightly treated barred by time and resultantly dismissed in limine. There is no satisfactory explanation furnished by the petitioner for lodging the appeal after expiry of the period of limitation. It is a settled law that the delay of each and every day has to be explained for filing the appeal after the prescribed period of limitation. In a case reported as Mehboob and another v.
Muzaffar Din (1992 SCM R 338). a preliminary objection was raised that the petition for leave to appeal is time-barred by two days. An application for condonation of delay was also filed.
However, it was observed that the case is one of negligence rather than any predicament in the way of petitioners to file the petition for leave to appeal in time. It is not denied that delay of each day has got to be satisfactorily explained. On account of delayed valuable right accrues to other party and in order to deprive him of such a right, there must exist a very convincing and sufficient cause. In the instant case no such reason having been furnished by the petitioner for filing the appeal beyond the period of limitation, the same has been rightly dismissed on the point of limitation. The mere assertion of the petitioner that he had gone on 'Tableegh' at the relevant time which prevented him to lodge appeal within time, without a positive attempt on his part to substantiate the same, is of no consequence. The explanation furnished on behalf of the petitioner hardly appeals to a prudent mind.
9. In the result and for the foregoing reasons finding no force in this revision I dismiss the same with no order as to costs.
Q. M. H./M.A.K./632/P