MUHAMMAD ASLAM Versus GOVERNMENT OF PAKISTAN through Secretary Interior Ministry
KHADIM HUSSAIN M. SHAIKH, J.--- This second civil appeal has been directed against the order dated 08.02.2016, passed by the learned Additional District Judge, Sukkur, in Civil Appeal No.77 of 2015 re: Mohammad Aslam v. Chairman NADRA and others, dismissing the application under section 5 of Limitation Act, 1908 and consequently dismissed the appeal, filed against the judgment and decree dated 13.08.2014, passed by the 1st Senior Civil Judge, Sukkur, in F.C. Suit No.66 of 2012 re: Mohammad Aslam v. Chairman NADRA and others, whereby the suit was dismissed with no order as to costs.
2. Briefly the facts of the case are that appellant (plaintiff) Mohammad Aslam had filed the aforementioned suit for declaration and mandatory injunction in the Court of 1st Senior Civil Judge, Sukkur, with the averments that the plaintiff's actual date of birth is 07.03.1989, but in his CNIC obtained by him on 07.04.2005, his year of birth has been written as 1986. Hence the plaintiff filed the above suit with the following prayers:- "a) To declare that the CNIC No.45504-48881736-5 issued by defendants Nos.3 and 4 with wrong date of birth is illegal and further direct to issue fresh National Identity Card after making necessary correction in the date of birth as 7.3.1989 instead of 1986. b) To award costs of the suit. c) To grant any other equitable relief which this Honourable Court deems proper under the circumstances of the case."
3. The defendants on service of summons filed their written statement, in denial to the case of the plaintiff as set out in his plaint. It is further stated therein that the actual year of birth of plaintiff is 1986 and not 1989, which is evident from CNIC Form submitted by the plaintiff in the year 2005 with his own signature and thumb impression, in which he himself had mentioned his year of birth as 1986.
4. On the divergent pleadings of the parties, following issues were framed:
"1. Whether, the suit of the plaintiff is not maintainable under the law?
2. Whether the date of birth i.e. 1986 has wrongly been mentioned by the NADRA instead of 7.3.1989 in the CNIC No.45504-48881736-5 of the plaintiff?
3. Whether the date of birth of plaintiff is liable to be corrected?
4. Whether the plaintiff is entitled for the relief claimed?
5. What should the decree be?
5. The plaintiff examined himself as Ex.7 and defendants examined one Mohammad Toheed, Deputy Assistant Director NADRA Sukkur as Ex.15, who had produced computer generated application form as Ex.15/A.
6. After hearing the parties' counsel the trial Court dismissed the suit vide judgment and decree dated 13.08.2014.
7. Having felt aggrieved by the said judgment and decree, the appellant/plaintiff filed appeal being Civil Appeal No.77/2015 in the Court of District Judge, Sukkur. Along with Memo of Appeal, an application under section 5 of Limitation Act, 1908, seeking condonation of delay in filing the appeal was also filed. Ultimately III-Additional District Judge, dismissed the application under section 5 of Limitation Act 1908 and the appeal as hopelessly time barred vide impugned order dated 08.2.2016, hence this appeal.
8. Learned advocate for the appellant has mainly contended that the appellant/plaintiff Mohammad Aslam has enmity with his other relatives, therefore, he could not file the appeal within time; that the learned Appellate Court ought to have condoned the delay in filing the appeal by allowing the application under section 5 of Limitation Act 1908; and, that the impugned order dated 08.2.2016, per him, is illegal. He, therefore, prays that the impugned order may be set aside and the matter may be remanded to the appellate Court by condoning delay in filing the appeal for decision of the appeal on merits. He has placed his reliance on the case of Imran Khan v. Federation of Pakistan and 3 others (2016 YLR 323) and case of Federation of Pakistan v. Jaffar Khan and others (PLD 2010 SC 604).
9. On the other hand learned advocate for the respondent has mainly contended that the appellant had filed the appeal before the appellate Court after 10 months although the period for filing such appeal provided by the law was only 30 days; and, that the learned appellate Court has rightly declined the condonation of delay in filing appeal by dismissing the application under Section 5 of Limitation Act and appeal as hopelessly time barred vide impugned order dated 08.2.2016. He, therefore, prays that the appeal may be dismissed.
10. I have considered the arguments advanced by the learned counsel for the parties and have gone through the material available on record.
11. From a perusal of record, it would be seen that the learned trial Court vide judgment and decree dated 13.08.2014 had dismissed the suit and whereas the Civil Appeal No.77/2015 was filed by the appellant on 29.06.2015, i.e. after more than 10 months of the impugned judgment and decree although the period for filing of such appeal was 30 days. It further reveals that the learned counsel for the appellant had taken the same stance for seeking condonation of delay in filing appeal before the first appellate Court which was dealt with by the first appellate Court in a befitting manner. The ground urged by the learned counsel for the appellant, which is manifestly absurd and vague in nature, could hardly be ground for the appellant to seek condonation of delay of more than nine months in filing the appeal, for, the delay of each and every day with justification was to be explained, in view of well settled law, but the appellant has miserably failed in doing so.
12. The case laws cited by the learned counsel for the appellant are not attracted to the case one in hand, as in both the cases cited supra, the question of limitation was not involved.
13. In view of what has been stated above, I am of the considered opinion that the learned first appellate Court by declining the condonation in filing the appeal and dismissing the appeal filed by the appellant as time barred, has not committed any illegality. The learned advocate for the appellant has also not been able to point out any illegality or jurisdictional defect in the impugned order, attracting provisions of section 100 of Code of Civil Procedure (Act V of 1908). Accordingly, the appeal being devoid of merit, is dismissed with no order as to costs.
ZC/M-153/Sindh Appeal dismissed.