Mst. Khairan Bibi vs Mst. Haseena Atta and others
This matter arises from a petition for leave to appeal (CPLA) filed against a judgment of the High Court, which was found to be barred by three days. The core legal question concerned whether illness of the stenographer and extreme cold weather constitute sufficient grounds for condonation of delay under limitation principles, and whether a direct appeal under Article 185(2)(d) of the Constitution of Pakistan 1973 was competent given the valuation of the subject matter. The Supreme Court held that administrative or personal inconveniences such as staff illness or weather do not warrant condonation of delay, and since the valuation exceeded the statutory threshold and the High Court had reversed the lower appellate court findings, a direct appeal was competent. However, because the petition was barred by limitation and could not be converted into an appeal due to an unexplained delay of thirty-three days, the CPLA was dismissed. The key principle laid down is that inadequate explanations for delay, including reliance on ill-advice or clerical inconveniences, do not justify condonation of delay in filing appellate proceedings.
- Does the illness of a stenographer and extreme cold weather constitute a sufficient ground for condonation of delay in filing a petition before the Supreme Court?
- Whether a direct appeal lies to the Supreme Court under Article 185(2)(d) of the Constitution of Pakistan 1973 when the valuation of the subject matter in the court of first instance and in appeal is not less than fifty thousand rupees and the High Court has reversed the judgment of the court immediately below?
- Can a petition for leave to appeal be converted into an appeal when the petition itself is barred by limitation?
- Article 185(2)(d), Constitution of Pakistan 1973
- Order XII Rule 2, Supreme Court Rules 1980
ORDER
AMIN-UD-DIN KHAN, J.
C.M.A.No.309-Q of 2020 Office has noted that the titled CPLA is barred by 3 days. The ground mentioned in Para 3 of the application that due to extreme cold weather and illness of the Steno typist he could not draft the petition within time, therefore, condonation of delay has been sought. We are afraid it is hardly a ground for condonation of delay . This application is, therefore, dismissed.
2. At this stage even learned counsel for the respondents caveatot has raised the objection that the petition was not competent and a direct appeal was to be filed. Learned counsel has referred that in the plaint filed by the respondents-plaintif fs there are two prayers; one for declaration and the other for possession, which is reproduced:- "It is, accordingly respectfully prayed that a decree may kindly be passed in favour of plaintif f and against the defendants in the following terms:- i. Declaration be made that the plaintif f is lawful allottee of the house vide Missal/P atta No. 2130 measuring about 100x100 sq: Ft: including room in dispute. ii: Declaration be also made that the defendant No. 1 has no concern with the or legal right over the room in dispute therefore, her possession is illegal and lawful.(sic)"
Learned counsel for the respondents further states that the decree has been executed and possession has been delivered to the respondents-plaintif fs.
3. In Para No. lithe value for the purposes of jurisdiction of the suit fixed by the plaintif fs-respondents is Rs:1,00,000/- and for the relief of possession value is also stated as Rs:1,00,000/-. In the prayer clause the prayer of possession of one room which was in possession of the defendant-petitioner was prayed whereas declaration of total property measuring 10000 square feet is claimed.
4. Learned counsel for the petitioner states that the value of Rs:1,00,000/- for the purposes of possession fixed by the plaintif f-respondent was for the whole of the property . We hold that this assertion of learned counsel for the petitioner is absolutely wrong and against the record. Value for the purposes of jurisdiction was Rs.1,00,000/- as well as for possession was also fixed as Rs.1,00,000/- which is the subject matter of instant petition, therefore, in accordance with the Article 185(2)(d) of the Constitution when the value of the subject matter before the learned trial court as well as before this Court is more than Rs:50,000/- and the learned High Court has reversed the findings of the learned District Judge, therefore, a direct appeal was competent before this Court for which period of 30 days is provided. Article 185(2)(d) is reproduced:- "185. (1)
(2) An appeal shall lie to the Supreme Court from any judgment, decree, final order or sentence of a High Court-- (a). -------------------------------- (b). -------------------------------- (c). ------------------------------- (d). If the amount or value of the subject matter of the dispute in the court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of [Msjlis-e-Shoora (Parliament)] and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the court immediately below; or ."
Here we refer and reproduce Order XII Rule 2 of the Supreme Court Rules, 1980:- "The petition of appeal shall be presented within thirty days from the date of the grant of the certificate by the High Court or the date of impugned judgment, decree or final order of the' High Court:"
5. In this view of the matter , we could have converted this CPLA into an Appeal, if the same was filed within the limitation period. However , if the limitatio n of appeal is counted the petition becomes barred by 33 days. When there is no explanation of 3 days what to say the delay of 33 days. At the most it might be termed as an ill-advice by the counsel, which is also not a ground for condonation of delay . In this view of the matter , this petition stands dismissed.