WEST PAKISTAN PROVINCE Versus ABDUR RAHIM KHAN

This second appeal under section 100, C.P.C. was directed against the judgment and decree, dated 11‑4‑1966 of the learned District Judge, Mianwali, whereby the appeal of the Province was dismissed as barred by time.

2. I have heard the learned counsel for the parties and have gone through the record. The judgment, dated 22‑7‑1965 of the learned trial Court was assailed by filing an appeal under section 96, C.P.C. on 4‑9‑1965. An application under section 5 of the Limitation Act for condonation of delay was filed alongwith the appeal. The condonation of delay was sought on the assertions that copy of judgment was applied on 26‑7‑1965, which was prepared on 6‑8‑1965 and delivered on 7‑8‑1965. It was asserted that thereafter the sanction of the competent authority for preferring the appeal was obtained; that the sanction was received on 20‑8‑1965; and then amount was deposited for providing the necessary court‑fee stamps with the District Naazir, who supplied the court‑fee stamps on 4‑9‑1965 and then the appeal was filed on the same day. It was explained that in these circumstances two days' delay have occurred but the said delay was beyond the control of the appellant.

3. The learned District Judge, after, noting the aforesaid explanation observed that the lapses narrated in the application are such that these cannot be taken to be genuine and that each day's delay had to be explained for seeking the concession to extend the time. Learned Judge further observed that the appellant had failed to convince the Court and to explain the delay. Learned counsel for the respondents was however, not in a position to support the aforementioned observations of the learned District Judge. It is apparent that the learned District Judge acted arbitrarily in observing that each day's delay was not explained or that the appellant had pursued the matter negligently. Learned Judge failed to notice that the appeal could be filed by 2nd September, 1965. The amount was deposited with the District Naazir for obtaining the necessary court‑fee stamps on 20‑8‑1965. It was the District Naazir who supplied the stamps on 4‑9‑1965. Obviously the Officer prosecuting the appeal on behalf of the Government had no control over the District Naazir. It was not the case of the respondents that the stamps were not available soon after the deposit of money but the appellants or any of its officers failed to collect the stamps in time from the District Naazir. It will be seen, that unless any such negligence is alleged and prima facie established, it could not be observed that the appellant had pursued the matter negligently. If any appellant is prevented from filing appeal within time by difficulties encountered in procuring the A necessary court‑fee stamps, he may possibly rely upon those difficulties as constituting 'sufficient cause' within section 5, Limitation Act 1908. See Gajadhar v. Ram Bux A I R 1950 All.

86. In this case as the explanation offered remained unchallenged, the delay of two days in filing the appeal was thus satisfactorily explained. The learned District Judge acted arbitrarily in refusing to condon the delay.

4. The result of the above discussion is that the impugned judgment and decree cannot be sustained and the same is, therefore, B set aside with the result that the first appeal filed by the appellant shall be deemed to be still pending and shall be disposed of by the learned District Judge Mianwali afresh after hearing the parties. The parties are directed to appear on 15‑2‑1988 before the learned District Judge, Mianwali who will have the record of the appeal summoned for disposal within three months, thereafter. The parties are left to bear their own costs.

H. B. T./W‑22/L Appeal allowed.