Find a Lawyer

Civil Appeal No. 301 of 1978, decided on 1st February, 1983.

(On appeal from the Judgment and Order of the High Court of Sind, dated 5th November, 1978, in J.M. 40 of 1975).

Constitution of Pakistan (1973)‑‑‑

‑‑‑Art. 185‑‑Limitation Act (IX of 1908), S.5‑‑Appeal‑‑Limitation‑ Condonation of delay‑‑Period of 41 days consumed by appellant in excess of period of limitation not adequately explained‑‑No good ground made out for condonation of delay‑‑Appeal dismissed as time‑barred.

Noorul Hassan

Advocate Supreme Court and Nizam Ahmad, Advocate on‑Record for Appellants.

Fateh Ali W. Wellani and Yousaf Rafi, Advocate‑on‑Record for Respondents.

Date of hearing: 30th January, 1983.

.‑‑ A preliminary objection with regard to limitation has been raised from respondent's side in this appeal through special leave to appeal, which was granted subject to any objection, in this behalf. The main grounds taken in the application are absence of the appellant from Karachi at the time of the announcement of the impugned judgment, his ignorance about the same due to the said reason for a long time, his financial difficulties; obtaining of necessary copies in two instalments; and, lastly time taken for preparation of the case after the expiry of the period of limitation.

It is not disputed that the period of limitation had expired even before the application for copy of the impugned judgment was made. That being so, every day of 41 days period consumed by the appellant in excess of the period of limitation, has not been adequately explained. No good ground having been made out for condonation of delay, we uphold the preliminary objection and dismiss the appeal as time‑barred. There shall be no order as to costs.

Before closing this order it needs to be noted that after the announcement of the dismissal of the appeal as time‑barred but before the dictation of the order and before we had arisen for the day, the learned Advocate‑on‑Record for the appellant made a request that the question raised in the appeal being whether the appellant could sue in forma pauperis, in the peculiar circumstances of the case involving extreme poverty of the appellant, he should be allowed time for arranging court‑fee and paying the same. He was told that such a request could not be granted without issuing notice to the other side and that the same could not be done without properly constituted proceedings on a proper application.

C.M.P.K.46 of 1983 (presence as noted earlier).

The foregoing part of the order was dictated yesterday. Today, i.e. 1st February, 1983, before we could sign this order, C.M.P. K‑46 of 1983 came up before us in which similar prayer has been made as is noted in the above concluding paragraph.

After hearing both the learned counsel (learned counsel for the respondents stated that he has notice and that he is ready to argue) we consider it fit and proper to leave this question for the learned trial Court to decide. The petitioner if he chooses to pursue the matter further by making payment of the court‑fee, if so advised, may do so by making an application under Order XXXIII, rule 15 and section 149, C.P.C. before the learned trial Court. The question of limitation in the suit will also be decided by the said Court after considering all available pleas to be raised by either side. We, however, remark that this Court has concluded the question of application for suing as a pauper without dismissing it on merits. The petitioner has lost the appeal in this behalf, only on ground of limitation.

We have now signed the earlier order also.

S.Q. Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.