REHMAT DIN and others vs Mirza NASIR ABBAS and others

' CH. IJAZ AHMED, J.--- Brief facts out of which the present C.M.A. Arises are that petitioners filed suit for declaration against the respondents in the Court of Senior Civil Judge, Islamabad. Respondents filed written statement controverting allegations levelled in the plaint. Out of the pleadings of the parties the trial Court framed eight issues. The learned trial Court decreed the suit vide judgment and decree, dated 15-5-1986. Respondents being aggrieved filed appeal against the petitioners in the Court or Additional District Judge, Islamabad, who accepted the same vide judgment and decree, dated 29-11-1987. Petitioners being aggrieved filed Civil Revision No,37-D of 1988 in the Lahore High Court, Rawalpindi Bench, Rawalpindi. The learned High Court dismissed the same vide judgment, dated 15-11-2000. Petitioners being aggrieved filed C.P. No,761 of 2001 before this Court and leave was granted. Out of which C.A. No,2568 of 2001 has arisen. During the pendency of the appeal respondents filed C.M.A. No,1720 of 2002 with the prayer for the dismissal of the appeal on the ground that petitioners have filed appeal/petition against respondents Nos.1 and 2 Mirza Nasir Abbas and Mst. Maryam Begum. Respbndent No,1 Mirza Nasir Abbas had died on 12-10-1992 whereas respondent No,2 Mst. Maryam Begum died on 10-10-1998. Therefore, petitioners have filed appeal against dead persons which is incompetent and not maintainable. Respondents filed the said application on 29-7-2002 and notice was also sent to the petitioners by the Advocate-on- Record of the respondents as is evident from page 6 of paper book of C.M.A. No,1720 of 2002. The said appeal was fixed before this Court on 8-6-2005 which was dismissed for non-prosecution in presence of Mr. Abdul Baseer Qureshi, Advocate Supreme Court and Mr. Ch. Akhtar Ali, Advocate- on-Record for the respondents. The petitioners have filed C.M.A. No,683 of 2007 for restoration of the said appeal on 21-3-2007. The application is barred by 621 days.

2. The learned counsel of the petitioners submits that Mr. Anwar H. Mir, Advocate-on-Record of the petitioners expired about 3 years ago. The said appeal was fixed for hearing on 8-6-2005 but the petitioners were not informed nor was learned counsel for the petitioners informed about the date of hearing as learned Advocateon-Record has already expired. Petitioners came to know about the dismissal of the appeal on 6-3-2007 and filed present application for restoration within time from the date of knowledge. He further submits that on account of sad demise of Mr. Anwar Mir, Advocate-on-Record due to this, their Advocate did not receive information about the fixation of the appeal on the said date. He further maintains that valuable rights have accrued to the petitioners in view of the leave granting order, dated 22-11-2001.

3. The learned counsel of the respondents submits that cause list dated 8-6-2005 has clearly shown the name of the counsel of the petitioners, namely, Mr. Muhammad Munir Peracha and Anwar H. Mir, Advocate-on-Record. He further urges that petitioners had not mentioned source of information qua their knowledge that they had got information about the dismissal of their appeal for non-prosecution on 8-6-2005 or 6-3-2007. He further urges that valuable rights had accrued to the respondents in view of the order, dated 8-6-2005 by telex of time. He further maintains that appeal was liable to be dismissed as the petitioners had filed petition/appeal against the dead persons. Respondents have filed C.M.A. No,1720 of 2002 for dismissal of the appeal on the said ground but petitioners have failed to tile any reply to the application till date.

4. We have given our anxious consideration to the submissions made by the learned counsel of the parties and have perused the record. It is an admitted fact that respondents have filed aforesaid application for dismissal of the appeal as the petitioners have filed appeal against respondents Nos.1 and 2 who had already died before filing of petition/appeal before this Court. Petitioners have not filed any application for rectification of the same. There are ample authorities to show that there can be no petition/appeal against the dead persons as it would be nullity. See Partap Chand v. Krishna Devi AIR 1988 Delhi 267. It is pertinent to mention here that petitioners have filed petition/ appeal against five respondents out of which two died before filing of petition/appeal before this Court. Their names could be struck off under Order I, rule 10(2), C.P.C. It is settled law that condonation of delay is discretion of the Court to condone or not to condone the delay after its satisfaction that there was sufficient cause for condonation of delay. The aforesaid facts qua application of the respondents are only mentioned to exercise discretion for condoning delay. It is duty and obligation of the Court to exercise its discretion keeping in view the principle of equity and fairplay in judicial manner and has no power to exercise discretion arbitrary. See Kanshi Rain's case AIR 1932 Lah. 183, Kishan Chand's case AIR 1942 Lah. 94, Arura's case AIR 1947 Lah. 76 and Badri Prasad's case 1933 All.

294. It is settled law that object of law of limitation is to help the vigilant and not to the indolent. It is pertinent to mention here that petitioners have not mentioned in their application source of knowledge qua the dismissal of their appeal for non-prosecution by this Court. This fact brings the case in the area that the petitioners have concealed the material facts from this Court which are sufficient not to exercise equitable jurisdiction/discretion in their favour. Petitioners' allegation that they were all along unaware of the dismissal of their appeal about 621 days did not fortify any circumstance of the case in hand as mentioned above. Petitioners have not mentioned source of knowledge qua dismissal of their appeal on 8-6-2005. It is no doubt that the Courts had been lenient and had been condoning some negligence i,e, negligence to the extent to which it is regarded as human H but gross negligence had never been condoned but Courts had always been strict in demanding proof of sufficient cause for every day which has expired after the period of limitation. This can be ascertained only from the contents of application. Petitioners did not mention the source of information qua their knowledge with regard to the dismissal of their appeal on 8-6-2005. By eflux of time respondents have acquired vested rights in view of dismissal of their appeal for non-prosecution as mentioned above. The same is barred by 621 days. The name of their counsel was also mentioned in the cause list of the said date. Leave was granted on 22-11- 2001. Respondents have filed C.M.A. No,1720 of 2002 for dismissal of appeal for filing the same against the dead persons. I Petitioners have not filed reply to the said application. It appears that the petitioners have not contacted their counsel during this period till the dismissal of their appeal for non-prosecution on 8-6-2005. In case all the facts are put in juxta position even then petitioners failed to explain delay of each day. We have given due weight to the affidavit of counsel of the petitioners inspite of that we are constrained not to exercise discretion in favour of the petitioners in view of the aforesaid circumstances and conduct of the petitioners. Law of limitation is required to be construed strictly, coupled with the maxim as mentioned above that each day of delay has to be explained by the party concerned where long periods of delay were not explained, therefore, application merits dismissal as time-barred. Petitioners came to know about dismissal through friend three K months later. No ground to condone delay of 84 days. See Sher Muhammad's case 1981 SCM R 212. Even if an important point is involved in a case that would not, in any way, allow the Court to use its discretion in an arbitrary way to override the provisions of the Limitation Act and the Supreme Court Rules. Therefore, we are not inclined to condone the delay as respondents have accrued vested rights by eflux of time. Expiry of limitation vests a person with a valuable right. It cannot be taken away by condonation of delay. It is well known maxim "Delay defeats equities" and words of Lord Camden, a Court of equity "has always refused its aid to stale demands, where a party has slept upon his rights and acquiesced for a great length of time".

5. In view of what has been discussed above we find no merits in this C.M.A. Which is dismissed as time-barred.