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(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 25-4-1978 in R. S. A. No. 895 of 1964).

(a) Limitation Act (IX of 1908-

Ss. 5 & 12-Condonation of delay-Supreme Court has ample power to condone delay when at late stage of appeal it might not be advisable to hold an enquiry suo motu into factual controversyTwo dates of preparation and delivery of copy being different-Delay

can be condoned but it cannot be a case of outright exclusion of relevant period-Such controversy however, shall have to be resolved in facts and circumstances of such case.

West Pakistan Industrial Corporation v. Aziz Qureshi 1973 S C M R 555 ; Abdullah Khan v. Khalil Ahmad 1972 S C M R 332 ; Fateh Muhammad v. Qadir Bakhsh 1975 S C M R 157 ; Manzoor v. Sajawal 1983 S C M R 465 ; Faiz Ali Shah v. Chief Administrator of Auqaf 1974 S C M R 33 ; Amonullah Khan v. Settlement and Rehabilitation Commissioner 1974 S C M R 482 ; Rukksana Ahmad v. Tariq Ataullah 1980 S C M R 36 ; Rafiq Ahmad v. Ghulam Rasool 1983 S C M R 17 and Jamila Khatoon v. Tajunnisa P L D 1984 S C 208 ref.

(b) Limitation Act (IX of 1908)

-- Ss. 5 & 12-Condonation of delay-Impugned judgment announced by High Court on 15-4-1978-Application for copies made on 4-5-1978-No date having been indicated for date of delivery of copies, same were obtained later on 21-5-1978-Petition for leave to appeal was filed on 11-7-1978 while period of limitation had admittedly expired on 5-7-1978-On the day period of limitation expired copies, were with appellants and petition for leave to appeal could have been filed in time-Held, delay regarding time consumed between preparation of copies and its delivery was condoned but each day after expiry of period of limitation not having been satisfactorily explained appeal was liable to be dismissed as time-barred in circumstances.

Maulvi Sirajul Haq, Advocate Supreme Court instructed by M. Afzal Siddiqi, Advocate-on-Record for Appellants.

Shamim Abbas Bokhari, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents Nos. 1, 2, 4, 6 to 14.

Ex parte for Respondents Nos, 3, 5, 15 to 17.

Date of hearing : 1st June, 1985.

MUHAMMAD AFZAL ZULLAH, J.-This appeal through leave of the Court is directed against judgment dated 25-4-1978 of the Lahore High Court ; whereby appellants' Regular Second Appeal arising out of land suit regarding occupancy tenancy was dismissed. Subject to the determination of question of limitation; leave to appeal was granted to examine the question whether the respondent side had abandoned their occupancy tenancy before the relevant date in 1952. There is Otnding against the appellant that the tenancy was not abandoned. The case is prima facie covered by two judgments of this Court in Muhammad Ashraf v. Allah Ditta (1970 S C M R 118) and Baz v. Yar Muhammad (1981 S C M R 569). Another case Mirza v. Muhammad Zaman Khan (P L D 1957 (W. P.) Lah. 242) has also been referred at the Bar. In view of the said decisions of this Court, there is not much force in this appeal on merits. However, it is not necessary to examine that aspect as an objection regarding limitation having been raised and pressed by the learned counsel for the respondents, this appeal must fail on that point.

The impugned judgment was announced by the High Court on 15-4-1978. Application for copies was made on 4-5-1978. The copies were prepared and were ready for delivery on 13-5-1978. But according to the averments made in the application for condonation of delay no date having been indicated for date of delivery, the same were obtained later on 21-5-1978. The petition for leave to appeal was filed on 11-7-1978 while the period of limitation had admittedly expired on 5-7-1978.

On the day that the period of limitation expired the copies were with the appellants. The petition for leave to appeal could have been filed within time. However, more time was consumed and thus according to office the petition became time-barred.

Learned counsel for the appellant has, however, relying on West Pakistan Industrial Corporation v. Aziz Qureshi' (1973SCMR555) contended that notwithstanding the prayer in the application for condonatian of delay, the time between the preparation and the delivery of the copy be excluded as a matter of right - under section 12 of the Limitation Act and not under section 5 thereof on-account of condonation.

Learned counsel for the respondents has not only distinguished but also tried to get support for his point of view from the authority cited by the learned counsel for the appellant. He also cited Abdullah Khan v. Khalil Ahmad (1972SCMR332) ; Fateh Muhammad v. Qadir Bakhsh (1975 S C M R 157) and Manzoor v. Sajawal (1983 S C M R 465). It has been argued from the respondents side that in absence of, elaborate enquiry as to whether the statement that no date was indicated) for delivery of the copy, this Court has been taking a liberal view of only condoning the delay when the two dates-of preparation and delivery, are different and, not of excluding the period.

There is considerable force in the argument of the learned , counsel for the respondent. The appellants' assertion that no date of delivery was indicated is not supported by any conclusive material or evidence. However: the Court has ample power to condone delay when at this late stage it might not be advisable to hold an enquiry suo motu on the factual controversy.. The view that in the circumstances like those in the present case normally the delay is condoned and that it is not a case of outright exclusion of the relevant period, finds support from the cases cited at bar. However, it may be mentioned that the controversy in this behalf shall have to be resolved in the facts and circumstance of each case. The following cases we also relevant on this question

Faiz Ali Shah:. Chief Administrator of Auqaf 197.1 S C M R 33 ;

Amanullah Khan v. Settlement and Rehabilitation Commissioner 1974 SCMR482;

Rukhsana Ahmad v. Tariq Ataullah 1980 S C M R 36 ; Rafiq Ahmad v. Ghulam Rasool 1983 S C M R 1.7, and Jamila Khatoon v. Tajunnisa P L D 1984 S C 208.

In the light of the foregoing discussion, even if the delay regarding the time consumed between the preparation of copy and its delivery is condoned, each day after the expiry of the period of -limitation not having been satisfactorily explained, this appeal is liable to be dismissed as time-barred. We hold accordingly and dismiss the same, with costs.

M. B. A. Appeal dismissed.

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