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Second Appeal No. 350 of 1964, decided on 26th February 1965.

S. 5 ‑Appeal ‑ Delay of 29 days‑Appellant owing to illness and old age not in a position to pursue matter vigorously‑Appeal involving point of general importance‑Delay condoned.

Ibadat Yar Khan for Appellant.

Naimuddin for Respondent.

Mr. Naimuddin has raised a preliminary objection to the maintainability of this appeal on the ground that it is barred by time. The order against which the appeal is directed is dated the 7th of May 1964. It is admitted by counsel for the parties that after excluding the time for obtaining certified copies, the appeal was out of time by 29 days: An application has been made by the appellant under section 5 of the Limitation Act for condoning the delay on the ground that the appellant is suffering from diabetes and pulmonary tuberculosis and that he made a mistake in understanding the legal advice that was given to him that the entire period of vacation should be excluded in computing the period of limitation. The affidavit which has been submitted in support of the application discloses that the appellant is an old man of more than 70 years of age. Additionally, Mr. Ibadat Yar Khan has pressed that the point involved in this appeal is a legal one and of general importance because it relates to the interpreta tion of section 13 (2) (vi) of the West Pakistan Urban Rent Restriction Ordinance of 1959.

2. The application for condoning the delay has been opposed by Mr. Naimuddin who has criticized the allegation of the illness of the appellant by pointing out that according to paragraph 5 of the affidavit of the appellant, it was in June that he had been reminding his Advocate of the urgency of the matter, while the medical certificate shows that he was under treatment from the 6th of May 1964. Counsel contended that the appellant could not have been seriously ill from the 6th of May 1964 because accord ing to himself he had been reminding his Advocate of the urgency of the case in June 1964. The allegation made by the appellant has been contradicted by the respondent in his affidavit by stating that the respondent had seen the appellant carrying on his business and attending to his fields in his jeepcar.

3. The illness of the appellant that has been disclosed in the medical certificate is not of such a nature that it necessarily made it impossible for him to attend to his work at all. But the disease from which he is suffering combined with his age could make him unable to attend to his work with vigour.

4. It is, therefore, not impossible that owing to the illness and old age the appellant was not in a position to do all that could have been possibly done for the prosecution of the matter. The point involved in this appeal is of a general importance and this has been conceded by Mr. Naimuddin also.

5. In view of the above circumstances, I think that the delay be condoned subject to the payment of Rs. 100 (Rupees one hundred) as costs. Mr. Ibadat Yar Khan says he is not in a position to pay the costs today and asks for time to do so. He is granted a fortnight's time to do so and directed to make payment of the costs on or before the 15th of March 1965.

6. To come up in the first week of April 1965 as desired by counsel.

A.H Delay condoned.

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