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Petitioner: MUHAMMAD ALI VS Respondent: GHULAM MUHAMMADHonorable Justice Muhammad Athar SaeedGhulam Abbas Soomro,K.B. Bhutto and Abdul Shakoor
2010 Y L R 2710
2010 Y L R 2710
[Karachi]
Before Muhammad Athar Saeed, J
MUHAMMAD ALI and 2 others---Appellants
Versus
GHULAM MUHAMMAD and 6 others---Respondents
Second Appeal No. 33 and C.M.As. No.2893 of 2005 and 796 of 2006, decided on 23rd February, 2009.
Civil Procedure Code (V of 1908)---
----S.100 & O.XLI, R.1---Limitation Act (IX of 1908), S.5 & Art.156---Second appeal---Filing of appeal with delay of 12 days along with photocopy of certified copy of decree and filing of certified copy of decree after 3 1/2 years of filing of appeal without application under S.5 of Limitation Act, 1908---Validity---Appellant had to explain delay of each and every day---Appellant's counsel expressed his inability to advance any reason for late filing of appeal---High Court dismissed appeal for being time barred and not maintainable.
Hem Singh-Sant Singh v. Narain Singh-Wazir Sindh and others AIR 1929 Lah. 771; Muhammad Hussain and others v. Settlement and Rehabilitation Commis sioner and others 1975 SCMR 304; Nazar Din and others v. Secretary Rural with powers of the SC(L) Punjab Lahore and others 1983 SCMR 1188; Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356; Yaqeen-ud-Din and others v. Abdul Majid and others PLD 1995 SC 396 and Rasheed Ahmed v. Province of Punjab and another 2004 SCMR 707 ref.
Ghulam Abbas Soomro for Appellants.
K.B. Bhutto and Abdul Shakoor for Respondent.
ORDER
MUHAMMAD ATHAR SAEED, J.---The judgment is dated 25-4-2005 and decree was issued on 27-4-2005 and application in respect of copy was filed on 3-5-2005 and the copy was supplied to the present appellant on 4-5-2005 whereas the present appeal was filed on 8-8-2005, which when calculated comes to 102 days from the date of passing of the judgment and decree. Since the appeal was required to be filed within 90 days this appeal has been filed 12 days late and along with this appeal appellant has filed a photocopy of certified copy of decree and the original decree was filed on 5-4-2008 that is almost more than three and half years after filing of the present appeal. This appeal was also not accompanied by an application section 5 of the Limitation Act, which has not been filed for the condonation of delay. It has vehemently been contested by Mr. K.B. Bhutto, learned counsel for the respondent that the appeal is not maintainable as the same has not been filed during the period of limitation and unless the appellant explains each and every day of default with cogent reason the delay cannot be condoned. He further submits that under the provisions of Order XLI rule 1 certified copy of decree was required to be attached with the appeal and since photocopy of certified copy was attached, it means that the certified copy was issued and non-attachment of the certified copy also means that the appeal is not valid, and is therefore barred by limitation. In this connection he has relied upon a judgment from Indian High Court in the case of Hem Singh-Sant Singh v. Narain Singh-Wazir Singh and others, reported in AIR 1929 Lah. 771, on the point of valuable right being accrued in favour of the respondent because the appeal was not filed within the period of limitation. He also relied upon the following judgments of the Honourable Supreme Court:---
(1) Muhammad Hussain and others v. Settlement and Rehabilitation Commissioner and others 1975 SCMR 304.
(2) Nazar Din and others v. Secretary Rural with powers of the SC(L) Punjab Lahore and others 1983 SCMR 1188.
(3) Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356.
(4) Yaqeen-ud-Din and others v. Abdul Majid and others PLD 1995 SC 396.
When confronted with this position, the learned counsel for the appellant conceded that no application under section 5 of Limitation Act was filed along with the appeal. Learned counsel for the appellant also concedes that appeal was filed 10 to 12 days late but he could not advance any reason for such late filing of the appeal.
As far as the certified copy of the decree is concerned, learned counsel for the appellant submits that the provision of Order XLI, rule 1, C.P.C. do not specify that certified copy has to be filed. It only specifies that copy of decree has to be filed. In support of his contention, that non-filing of the decree will not render the appeal non-maintainable he has relied upon a case of Rasheed Ahmed v. Province of Punjab and another, reported in 2004 SCMR 707. Learned counsel also submits that the honourable Supreme Court has held that the matter should be considered on merits and should not be dismissed on technicalities.
After examining the arguments of the learned counsel, I am of the view that it is settled law that each and every day of default has to be explained and once the learned counsel has expressed his inability to advance any reason for late filing of the appeal then there is no option left to this Court but to hold that the appeal is time barred and dismiss the same. Therefore, this appeal being time barred is dismissed as not maintainable.
S.A.K./M- 112/K Appeal dismissed.