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Civil Petition for Special Leave to Appeal No. 388 of 1978, decided on 10th August 1978.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 25‑5‑1978, in R. F. A. No. 146 of 1978).

‑‑‑ S. 5‑Condonation of delay‑Delay in making up deficiency in court‑fee sought to be condoned on ground of counsel having received full court‑fee from client but his clerk having affixed less court‑fee Held : Delay for each day to be explained in cases of condonation‑Appeal having been returned to counsel for being deficiently stamped and counsel having already received full amount of court‑fee, appeal could be refiled on very date of return and no occasion arose for writing to client and waiting for 3 days‑High Court in circumstances committed no legal or factual error in refusing to extend period of limitation.‑[Court‑fee ‑Condonation of delay].

Muhammad Rafiq Khan Chohan, Advocate Supreme Court instructed by Sh. Masood Akhtar, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing : 10th August 1978.

It is not necessary to go into the lengthy details of this case and for our purpose it will be sufficient to mention that the petitioner/plaintiff instituted a civil suit for preempting the sale of the land in dispute. The plaint was rejected by the learned Civil Judge on 15‑2‑1978, under Order VII, rule 11 of the Civil Procedure Code (Act V of 1908) for being deficiently stamped. The plaintiff‑petitioner filed a Regular First Appeal bearing No. 146 of 1978 on 20‑5‑1978 in the High Court. As the appeal was deficiently stamped so it was returned to the petitioner on 24‑5‑1978, to make good the deficiency of the court‑fee. The appeal was refiled by the petitioner on 27‑5‑1978. As by that time the appeal had become time barred it was accompanied by an application under section 5 of the Limitation Act IX of 1908 for condonation of delay. The matter came up before a learned Single Judge of the Lahore High Court who found no sufficient ground for condonation of delay and dismissed the appeal as time barred. The petitioner has come up in a petition for special leave to appeal against the same.

2. The case pleaded in the High Court was that the learned counsel had received the full court‑fee amount from his client and had passed it as to his clerk to affix the same while filing the appeal but the clerk on his own part affixed less court‑fee. It was in these circumstances that condonation of delay was payed for. The learned Single Judge was of thS view that it was a clear case of negligence which did not warrant an extension of period of limitation. Learned counsel has repeated the same facts before us. We do not think that the learned Single Judge committed any legal or factual error in refusing to extend the period of limitation o to condone the delay. It is well settled that in cases in which condonation of delay is prayed for each day of limitation has to be explained by the A suitor concerned. In the instant case when the full court‑fee amount was already in the hands of the learned counsel, therefore, when the appeal was returned to him on 24‑5‑1978, there was no justification on his part to institute it on 27‑5‑1978, because in our opinion the appeal could have bee refiled on that very date when it was returned to the learned counsel. Learned counsel submitted that he had written a letter to his client therefore three days were consumed in that pursuit. We cannot consider that this is circumstance warranting extension of period of limitation because the amount of court‑fee already being in the hands of the learned counsel, sending of 21 letter to the suitor was no ground for not refiling the appeal promptly. The matter was essentially within the decretion of the learned Single Judge and if he on the facts and in the circumstances of the case did not find any justification for condoning the delay, his order cannot be interfered with by this Court, especially when neither any violation of law nor breach of any other principle of administration of justice has been pointed out to us. The result is that this petition has no merit and is dismissed.

Petition dismissed.

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