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Second Civil Appeal No. 7 of 1979, decided on 2nd December, 1982.

‑‑ S. 5‑Condonation of delay‑Filing of appeal‑Contention that petitioner had no intimation of date of hearing of suit or passing of decree for reason that his Advocate did not inform him about dates of hearings of suit or passing of decree and be came to know of this fact when he inspector file of case and failure of Advocate to intimate date of hearing to petitioner constituted sufficient cause for condonation of delay in preferring appeal in time and as such petitioner for negligence of Advocate cannot be penalized‑Petitioner himself found negligent in pursuing suit and even after engaging counsel it was his duty to keep himself fully informed of proceed ings and he was not relieved of his obligation to do so merely because he had engaged counsel to appear on his behalf‑Delay of each day has to be explained, and no such explanation is forth coming, first appellate Court, held, rightly dismissed application filed by petitioner for condonation of delay, in circumstances.

Muhammad Iqbal v. S.A.M. Khan P L D 1970 Lah. 614 ; .Grindlay's Bank Ltd. v. Murree Brewery Co. Ltd. P L D 1954 Lah. 745 ; Nazar Muhammad v. Mst. Shahzada Begum P L D 1974 S C 22 ; Mst. Hajran v. Sardar Muhammad P L D 1970 S C 287 ; Muhammad Sharif Khan v. Board of Revenue 1970 S C M R 76 and Mustafa v. Settlement Commis sioner 1974 S C M R 104 ref.

Mst. Hajran v. Sardar Muhammad P L D 1970 S C 287 ref.

‑‑ S. 5‑Condonation of delay‑Expiry of period of limitation -Valuable rights accrue in favour of other side and unless sufficient cause for condonation of delay made out, delay in filing appeal, held, cannot be lightly condoned.

‑‑ S. 5‑Condonation of delay‑Delay of each day has to be fully explained as valuable right accrues in favour of other party by lapse of time.

Faizanul Haq for Appellant.

Syed Inayat Ali for Respondent.

Date of hearing :19th October, 1982.

This appeal has been filed against the order dated 23rd December, 1978 passed in Civil Appeal No. 466/78, whereby the learned 1st Appellate Court rejected the application made under section 5 of the Limitation Act and dismissed the appeal as barred by time.

2. The relevant facts for the purposes of disposing of this appeal are that the respondent/petitioner filed Suit No. 25 of 1970 for recovery of Rs. 18,744.12 against the appellant /defendant in the Court of 1st Senior Civil Judge at Karachi. The appellant made appearance and contested the suit. Issues were framed on 12th July, 1971. Thereafter, the learned trial Court proceeded with the hearing of the suit and recorded the evi dence produced on behalf of the plaintiff/respondent. On 19th April, 1978 the Advocate for the appellant/defendant reported no instructions. The learned trial Court, closed the side of the defendant and adjourned the case to 3rd May, 1978 when arguments were heard. The judgment was then announced on 4th May, 1978 decreeing suit as played with costs and interest.

3. An application for execution thereafter was filed of which notice was served upon the appellant for appearance in the Court on 14th October, 1978. Appellant alleged that no information about the date of hearing of the suit was received by him from his Advocate. According to the appellant, his Advocate bad told him that he would be called whenever necessary. However, after the receipt of the notice of the execution application at the address of his shop, he came to the Court on 20th October, 1978 and made inquiries from the Court clerk and took tin adjournment. It is the case of the appellant that in these circumstances he contacted his Advocate and showed him the notice of execution appli cation but he was told he had sent notice about the date of hearing of the suit to the appellant at his residential address. According to the appellant, however, he bad left the said house much earlier and thus the said notice never reached him. According to the appellant for these reasons he could neither appear in the Court on the dates of hearing of the suit nor he was examined, and thus was deprived of the opportunity to lead evidence. On 19th November, 1978 the appellant engaged Mr. Faizanul Haq, Advocate who on the same date made application for inspection of the file, which was allowed. The file was then inspected on the same date when for the first time according to the appellant, he came to know about the passing of the ex parte decree.

4. An application for copy was filed on 21st November, 1978 which was made ready and delivered on 26tb November, 1978 and thereafter the appeal, was filed in the Court of the learned District Judge, Karachi alongwith an application under section 5 of the Limitation Act for con. donation of delay on the facts stated above. The said application how. ever, was rejected by order passed on 23rd December, 1978 and con sequently the appeal was dismissed as barred by time.,

5. The above order passed by the learned 1st Appellate Court has been challenged by filing the present appeal in this Court.

6. Mr. Faizanul Haq the learned counsel for the appellant explain ing the delay in filing the appeal in the Court of District Judge, argued that the appellant had no intimation of the date of bearing of the suit or the passing of the decree for the reason that his Advocate had not inform ed him about the dates of beatings or the passing the decree ; and that for the first time the appellant came to know of the passing of the decree only on 19th November, 1978 when the file was inspected in the circum. stances mentioned above. According to the learned counsel the time for filing the appeal should be computed from 19th November, 1978 the alleged dart of the knowledge of the passing of the judgment and thus the appeal was within time. It was also contended that in any, case the failure of the Advocate to intimate the date of hearing to the appellant constituted sufficient cause for condonation of the delay in preferring the appeal to time and that the appellant may nor be penalised for negligence of his Advocate.

Reliance was placed by the learned counsel on the cases of Muhammad Iqbal v. S. A. M. Khan ( P L D 1970 Lah. 614) and Grindlay's Bank Ltd. v. Murree Brewery Co. Ltd. (P L D 1954 Lah. 745) Reference was also made to the case of Nazar Muhammad v. Mst. Shahzada Begum (P L D 1974 S C 22) for the proposition that a mistaken advice by the counsel may be considered sufficient ground for condonation of delay.

7. I have considered the above cited cases and find that the same are not applicable to the facts of the present case. At the very outset it would be seen that according to the counsel the file was inspected by him on 19th November, 1979 when the appellant learnt about the passing of the decree dated 4th May, 1978, application for certified copies of the judgment and decree was filed on 21st November, 1978 after two days, for which delay of two days, no explanation has been given or even attempted to be given.

Even after the delivery of copies in 26th November, 1978 the appeal was not filed till on 30th 'November, 1978 and thus a further period of four days elapsed before the appeal was actually presented. The delay of these. additional four days has also remained unexplained and when questioned about it the learned counsel submitted that this time was spent in preparation of the memo. of Appeal. In my opinion no sufficient cause has been made out for the delay of these four days as well. The time spent, even after obtaining the copies, could not be sought to be con doned on the ground that the counsel took time in preparation of memo. of Appeal. It would be seen that it is settled law that with the expiry o the period of limitation prescribed by the law valuable rights are created in favour of the other side and in civil matters unless sufficient cause for condonation of delay is made out the delay in filing the appeal could not be lightly condoned. Reference, if needed, be made to the case of Mst. Hajran v. Sardar Muhammad (P L D 1970 S C 287). The application for condonation of delay was, therefore, rightly dismissed.

8. The facts of the case referred to above show that on 19th April, 178 after the evidence of the plaintiff's witnesses had been recorded the Advocate for the appellant/defendant reported no instructions and accordingly defendant's evidence was closed. The suit was then adjourned for arguments to 3rd May,. 1978 and thereafter, on 4th May, 1978 it was decreed. According to the contention of the Darned Advocate for the appellant the absence of the defendant was due' to the reason that his Advocate had sent letter of intimation of date of hearing at the place where he was earlier residing but had left that place 7 years before the case was taken up for evidence and that his counsel acted negligently in not informing him by telephone or by sending letter at his place of busi ness which was available on his file.

The above facts, however, would show that the appellant himself was thoroughly negligent in pursuing the suit. Even after, he had engaged counsel it was his duty to keep himself fully informed of the proceedings in the case and that he was not relieved of his obligation to do so merely because he had engaged a counsel to appear on his behalf, as was laid down in Muhammad Sharif Khan v. Board of Revenue (1970 S C M R 76). The Honourable Supreme Court in the above case held : ‑

"Limitation begins to run from the date of disposal of the writ petition on the 2nd July, 1968. The petitioners cannot absolve themselves of their own responsibilities by throwing the blame on their learned counsel for the delay. Even assuming that their counsel was at fault, it is the petitioners who are to suffer and not the other side to whom a valuable right has accrued by lapse of time.

We are not prepared to accept that a client's responsibility ceases after be has briefed a counsel to appear on his behalf. It is his duty to keep touch with his counsel and to find out the progress, of his matter. If he cannot go personally, it is his duty to make proper arrangements for timely information to be conveyed to him by either the counsel or his clerk."

Reference may also be made to the observations of the Honourable Supreme Court in the case of Mustafa v. Settlement Commissioner (1974 S C M R 104) wherein an the plea raised for the condonation of delay on the ground, that the counsel never gave the petitioner intimation about the dismissal of his petition, held that obviously the petitioner had been negligent in not keeping himself informed about the date of the case and accordingly, it war observed that no ground of condonation of delay was made out.

9. Furthermore, according to the appellant's own case he received on 14th October, 1978 notice of the application for execution of the decree passed on 4th May, 1978 but be did not file his appeal until 30th Novem ber, 1978. This intimation of execution application of which notice was received by the appellant on 14th October, 1978 was even otherwise sufficient to put him to notice that a decree has already been passed against him but in spite of this be did not care to take any step to file the appeal without any loss of time. He remained silent for over 36 days, then engaged Mr. Faizanul Haq, Advocate on 19th November, 1978. The conduct of the appellant calls for no indulgence and in view of the settled law that while seeking condonation of delay it is essential that delay of each day is to be explained for a valuable right accrues in favour of the other party by lapse of time, I have no hesitation in holding that, the learned first appellate Court rightly dismissed the application under section 5 of Limitation Act filed by the appellant.

10. The upshot of the above discussion is that there is no merit in this appeal which is dismissed with costs.

M. Y. M. Appeal dismissed.

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