ABDUL HAQ Versus MUHAMMAD AZAM

A suit for possession of the suit land through pre‑emption was filed against the appellant by the respondent which was dismissed by the learned Civil Judge, Wazirabad vide judgment and decree dated 2‑4‑1981. The respondent filed an appeal which was heard ex parte and was allowed by the learned Additional District Judge, Gujranwala through judgment dated 3‑6‑1984 through which the suit of the respondent was decreed on payment of Rs.42,000. The appellant has filed this regular second appeal to challenge the said appellate order. Alongwith the appeal he has filed an application under section 5 of the Limitation Act, 1908 for condonation of delay in filing the appeal. The appeal and the application are contested by the respondent. I have perused the record and have heard the arguments.

2. The appeal as already narrated above was decided on 3‑6‑1984. The present appeal was filed on 22‑9‑1984. Copies of the appellate judgment and decree were applied for on 18‑9‑1984 and were delivered to the appellant on the same date. The time for filing a regular second appeal is 90 days and, therefore, the appeal could be filed up to 1‑9‑1984. Not only the appeal was filed about 21 days thereafter but also the copies were applied for about 17 days after the expiry of the period of limitation. The learned counsel for the appellant has argued that as the appellant was reported to be in England his address of England should have been furnished and his service should have been got effected there instead of issuing of a proclamation in a news paper. The record of the learned Appellate Court shows that service of the appellant was attempted several times but report came that h d gone to England. The report as such was correct. However, that does not ‑mean that the respondent should have known and filed the address of the appellant of England. The legal position is that in such circumstances service is to be effected at his last known address. The service was attempted at both the addresses of Gujrat and Gujranwala, of the appellant there is no dispute that the permanent address of the appellant was of Gooran Jattan, Tehsil Kharian, District Gujrat. A proclamation in "Daily Pakistan Times" of 10‑3‑1982 was issued on this address for 20‑3‑1982. No other mode of service m these circumstances was possible and no other geode of service was legally required. Therefore, the service of the appellant was effected In accordance with law and was sufficient.

3. The appellant was proceeded against ex parte on 20‑3‑1982 for which date the said proclamation was issue. However, the ex parte order now impugned through this appeal was passed on 30‑‑6‑1984. This appeal as already said was filed on 22‑9‑1984 and was belated by 20/21 days. The only reason put forward for condonation of delay is that the appellant who bolds dual nationality of Pakistan and England could not have the knowledge of the filing of the appeal of the ex parte decree. It may be added that the decree was executed at the spot on 20‑8‑1984. The appellant does not claim that he was not in possession of the suit land either personally or through anyone. When physical possession of the land in dispute was delivered to the respondent‑decree holder on 20‑8‑1984 that was a sufficient notice for the appellant about the ex parte appellate order. He has nowhere stated that he did not come to know of his dispossession. Therefore, it is difficult to believe that the appellant did not come to know of the appellate order prior to 17‑9‑1984 or 18‑9‑1984. He has filed a copy of his passport which howl that he landed in Pakistan on 20‑8-1984. He would have reached his place a day or two later and there is no reason why he would not come to know of his dispossession. Apart from that his passport was issued at Liverpool, England on 23‑6‑1983. Therefore, it cannot be ascertained that he did not come to Pakistan during the pendency of the appeal before the first Appellate Court and did not come to know of the same. In any case the delay in filing the appeal has not been explained by the appellant. It may be added that delay of every day has to be explained for claiming condonation of the same. However, as already said there is no explanation of the delay caused in filing of the present appeal. Accordingly, the delay in filing the same cannot be condoned. C.M. 4214‑C of 1984 is dismissed.

4. In view of my above discussion the appeal is dismissed as time‑barred. The parties are left to bear their own costs.

M.Y.H./A‑351/L Appeal dismissed,