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Civil Petition for Special Leave to Appeal No. 44‑D of 1970, decided on 22nd June 1970.

(On appeal from the judgment and order of the High Court East Pakistan, Dacca, dated the 6th January 1970, in Appeal from Appellate Decree No. 1056 of 1969).

Art. 58(3)‑Petitioner applying for certified copy of judgment after petition for special leave to appeal barred by time petitioner's explanation that due to illness he could not contact his Advocate for filing petition for special leave Does not, even if true, explain delay in circumstances‑Petition dismissed as time‑barred.

Muhammad Jani Alam, Senior Advocate Supreme Court instructed by S. M. Huq, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing : 22nd June 1970.

: This petition for leave to appeal is barred by limitation by twenty‑five days, and it arises out of an order of a learned Single Judge of the High Court summarily dismissing a Second Appeal on the 6th January 1970. The plaintiff's suit for declaration of title and recovery of possession was decreed by the trial Court and the appeal there from by the defendants‑petitioners was dismissed. The learned Single Judge of the High Court found that both the Courts below concurrently found that the plaintiff did take delivery of possession of the suit property in execution of the decree in the previous Title Suit No. 10 of 1955 and the petitioner's contention that the plaintiff did not succeed in taking physical possession of the suit property in execution of the said decree was accordingly rejected. For the same reason the learned Single Judge also disallowed the petitioner's contention that the plaintiff's claim had become barred by limitation.

The petitioners felt aggrieved by the order of the High Court and they accordingly applied for leave to appeal under Clause 15 of the Letters Patent, but the application was refused by the learned Judge on the 12th February 1970. Thereafter petitioners applied for a certified copy of the judgment of the High Court on the 6th March 1970, and having put in the requisites in due time the certified copy was made ready for delivery on the 16th March 1970. The present petition for leave was filed on the 13th April 1970 on the erroneous belief that limitation ran from the date of the order of the learned Judge refusing leave under Clause 15 of the Letters Patent, although according to the now well established practice limitation ran from the date of the first order of the learned Judge dated 6th January 1970. It thus appears that he applied for the certified copy of the judgment after the petition for special leave had already become time‑barred. The petitioner's explanation that as he was lying ill from the 9th March 1970 to 6th April 1970, he could not contact his Advocate for the purpose of filing the present petition earlier than the 8th April 1970, even if true, does not explain the delay in making the petition. Time started to run from the date of the first judgment of the High Court, namely, 6th January 1970, and even if the time taken by him for prosecuting diligently his application for leave to appeal under Clause 15 of the Letters Patent be taken into account and the time taken for obtaining certified copy of the High Court's order be deducted the petition would still be delayed and the petitioner has failed to explain the delay.

We accordingly dismiss this petition as barred by limitation.

Petition dismissed.

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