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Civil Petition for Special Leave to Appeal No. 232 of 1973, decided on 14th March 19 74.

(From the judgment and order, dated 3‑10‑1972 of the Lahore High Court, Lahore, passed in Letters Patent Appeal No. 163 of 1971).

Limitation Act (IX of 1909)‑

‑‑ S. 5‑Delay, condonation of‑Application for copy of order initially delayed by 55 days‑Delivery of copy taken after 94 days of its preparation‑Fact indicative of gross negligence on part of counsel's clerk (applying for copy) and want of due diligence on part of petitioner‑Petitioner's Advocate although intimately con cerned not filing any affidavit‑Petition for ]cave to appeal still not filed till after expiry of 11 days of receipt of copy‑Delay of each day not explained‑Petition dismissed as barred by time.

Lachmi Chand Babu Lal v. Unkar Mal Chotee Lal A I R 1919 All. 35i distinguished.

Ejaz Hussain Batalvi, Advocate Supreme Court (absent) instructed by Raja Abdul Razzaque, Advocate‑on‑Record for Petitioners.

Nemo for Respondent No. 1.

Ch. Hamid‑ud‑Din, Advocate Supreme Court instructed by Sh. Masud Akhtar, Advocate‑ on‑Record for Respondent No. 2.

Date of hearing : 14th March 1974.

MUHAMMAD GUL, J.‑

This petition is from the judgment of a Division Bench of the Lahore High Court dated 3‑10‑1972. The petition was filed on 1‑6‑1973 and excluding the time taken for obtaining the copies, it is beyond limitation by 161 days. To make out a case for condonation of this long delay, petitioner No. 6 has filed her affidavit. Reliance is also placed upon the affidavit of the clerk who was directed by the petitioners' counsel in the High Court to apply on behalf of the petitioners for certified copies.

Petitioner No. 6 in her affidavit has stated that on 3‑10‑1972, she was informed by her counsel, Sh. Riaz Ahmad, Advocate, that the petitioners' Letters Patent Appeal had been dismissed. On the following day, she called on her counsel in his office and instructed him to apply for the copies for filing a petition for special leave and on his direction she paid the necessary expenses to his clerk the same day. Thereafter, she has been inquiring oil and on from her counsel and his clerk about the certified copies and each time she was informed that the copies were not ready and that she would be informed as soon as copies are received. However, when she failed to get any information from her counsel, she visited his office on 20‑51‑1973 to inquire about the copies. She also asked the clerk to let her have the receipt issued from the Copying Agency. The clerk after making a search for the brief of the case, told her that the case papers had been mislaid and she should call on the next day and in the meantime he would try to trace the case papers and the receipt. When she called again on 21‑5‑1973, the clerk handed over the case papers and the certified copies to her and told her that the certified copies had been delivered to him on 24‑3‑1973. The certificate endorsed on the copies, however, showed that the application for copies was actually made on 1‑12‑1972, that is to say 58 days after the expenses were paid to the clerk and that the copies were ready on 21‑12‑1972 but were not collected until 24‑3‑1973, after the further lapse of 94 days.

The version of Muhammad Hussain Ghauri, who at the relevant time was employed as clerk by Shaikh Riaz Ahmad is that owing to "rush of work" he was under an erroneous impression that he had applied for the copies, though in point of fact, he had not and he discovered his omission on 1‑12‑1972 when actually he made the application. After that, he kept on inquiring from the Copying Agency and at last he obtained the copies on 24‑3‑1973 and placed them in the file, but the petitioners did not call again until 20‑5‑1973 but the brief not being traceable on that day, the copies along with the brief were handed over to petitioner No. 6 on 21‑5‑1973.

On the basis of the above facts, learned counsel for the petitioners relying upon Lachmi Chand Babu Lal v. Unkar Mal Chote Lal (1) submitted that a case is made out for condoning the delay. In the precedent case the facts were, however, materially different. In that case, it was found as a fact that the petitioner in that case had been diligently trying to obtain the copy of the decree in order to file the appeal. In that case, expenses for copy were also paid to the counsel's clerk on the day following the day on which the judgment sought to be appealed against was pronounced. Not only that the application for copy was actually made within two days of the payment of the expenses to the clerk and after that the petitioner in that case had been calling at the office of his counsel on numerous occasions, and the appeal was filed on the next day of getting the copy. In the instant case, there was initial delay of 58 days in making the application for copies and further delay of 94 days in taking delivery of the copies after they were ready. This not only demonstrates gross negligence on the part of the counsel's clerk, but also want of due diligence on the part of the petitioners. It is significant that no affidavit has been filed by Shaikh Riaz Ahmad, Advocate although he was intimately concerned in the whole affair Then again, after the copies were delivered to the petitioner on 21‑5‑1973, the petition was not filed until 1‑6‑1973 that is to say, after the lapse of a further period of 11 days. To condone the delay of 161 days in such circumstances would amount to placing premium on the negligence of the counsel's clerk and want of due diligence on the part of the petitioners.

There can be no gainsaying the fact that a valuable right has accrued to the other side in the above circumstances and according to the well settled principle, in order to get over the bar of limitation, the petitioners must explain each day's delay after the expiry of the normal period of limitation. This they have failed to do ; rather, the counsel's clerk has in his affidavit tried to shift a part of blame for this long delay upon them.

Accordingly, the petition is dismissed as barred by limitation.

Petition dismissed.

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