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Civil Petition for Special Leave to Appeal No. 167 of 1973, decided on Sth November 1973.
(On appeal from the judgment and order of the Lahore High Court made on the 12th of October 1970 in R. F. A. No. 46 of 1965).
--‑‑S. 5‑Condonation of delay‑Law having been authoritatively declared by Supreme Court, petitioner could not be said to have not known it or that she had been pursuing her application in High Court with due diligence for grant of fitness certificate especially when application remained pending in High Court for two years‑‑Petitioner all along assisted by counsel, failure of counsel to take note of law,, held, could obviously be attributed only to lack of due diligence on his part‑Petitioner could not escape consequences of such lack of diligence‑Delay not condoned‑Civil Procedure Code (V of 1908), Ss. 109 & 110 read with Constitution of Pakistan (1962), Art. 58.
Ghulam Mohammad Bhatti, Advocate instructed by Kh. Mushfaq Ahmad, Advocate‑on‑Record for Petitioner.
Ghlas Mohammad, Senior Advocate Instructed by Rana Maqbul Ahmad Qadri, Advocate‑ on‑Record for Respondent.
Date of hearing: 5th November 1973.
This petition for special leave to appeal is barred by 865 days. The judgment of the High Court, under appeal, was delivered on the 12th of October 1970 whereas this petition was filed on 23‑4‑1973.
The explanation given for the delay is that two days after the delivery of the judgment of the High Court the petitioner made an application to that Court for the grant of a certificate of fitness for appeal to the Supreme Court under the provisions of sections 1011 and 110 of the Code of Civil Procedure. That application remained pending with the High Court until the 19th of February 1973, on which date it was dismissed by the High Court on the ground that after the coming into force of the 1962 Constitution of the Islamic Republic of Pakistan, sections 109 and 110 of the Code of Civil Procedure had become completely inoperative because of the provisions) contained in Article 58 of that Constitution. In support of this view, the learned Judges of the Division Bench placed reliance on a decision of this Court reported as Hussain Bakhsh v. Settlement Commissioner (PLD 1970 S C 1).
After the dismissal of the petitioner's application for the grant of fitness certificate she applied for a copy of the order refusing the certificate, which copy was supplied on the 29th of March 1973, and thereafter, the petition was filed on the 23rd of April 1973 as already stated.
It is submitted by the learned counsel for the petitioner that the time spent fn pursuing the application in the High Court for obtaining a certificate of fitness for appeal should be condoned in the circumstances of this case, especially when it is remembered that the petitioner is a lady and had been diligently pursuing the matter all through.
On behalf of the respondent Sh. Ghias Muhammad Sr. Advocate, has entered caveat, and has opposed the condonation of delay on the ground that the judgment of the Supreme Court, relied upon by the learned Judges of the High Court, was delivered on the 13th of October 1969 and reported in the P L D published in January 1970, whereas the impugned judgment of the High Court was delivered ten months later on 12‑10‑1970. It is submitted by the learned counsel that in these circumstances the law governing maintainability of appeals under sections 109 and 110 of the C. P. C. had been clearly enunciated and the pursuit of a misconceived application in the High Court could not provide sufficient cause for condoning such a long delay.
We consider that the submissions made by the learned counsel for the respondent have merit. The law having been authoritatively declared by this Court, it is not possible to hold that the petitioner was acting with due diligence in pursuing her application in the High Court for the grant of a fitness certificate, especially when the application remained pending for more than two years. The petitioner was all along assisted by a counsel and the failure of the counsel to take note of the law declared by this Court could obviously be attributed only to lack of due diligence on his part. The petitioner cannot escape the consequences of this lack of diligence.
For the foregoing reasons, we have no alternative but to dismiss this petition as being badly barred by time.
Appeal dismissed.
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