ABDUL RAHMAN and another vs MUKHTAR AHMAD and another

ORDER

' A civil suit against the petitioners having been decreed by the trial Court on 6-12-1983, they filed an appeal in the Court of the District Judge, Sargodha on 17-12-1983 whereto they appended only a copy of the judgment and not a copy of the trial Court's decree which was produced only on 12-4- 1984, when the limitation for filing the appeal had already expired. This aspect of the matter was examined by the learned District Judge in paragraphs 7 to 11 of his judgment and he concluded that the appeal had become hopelessly time-barred.

2. With the above findings the appeal should have been dismissed under section 3 of the Limitation Act but still the learned District Judge proceeded to dwell upon the merits of the case and in his lengthy judgment he devoted thereto another 4 paragraphs, which again start with number 11. A justification for the course adopted by him is difficult to find and it is beyond comprehension as to why may he have failed to perform the duty enjoined by law.

3. Since the appeal of the petitioners in the district Court was barred by time and was not accompanied by an application under section 5 of the Limitation Act to enable the condonation of delay therefore, neither can the consideration of the merits of the case by the learned District Judge be regarded lawful nor can the grievance of the petitioners to the effect that the evidence in the case has been misread by the Courts below, be entertained in this revision petition.

4. Learned counsel for the petitioners has, however, submitted that the defect in their appeal was not pointed out by the office of the District Judge who entertained it without any objection and has relied on Haji Jehanzeb v. Khalid Khan and another PLD 1983 Pesh. 215 to contend that the delay in completing the appeal deserved to be condoned for the foregoing reason. The case relied upon by the learned counsel is clearly distinguishable as it proceeds upon its own facts because therein an application was in fact filed for condonation of the delay under section 5 of the Limitation Act which, even though not adverted to by the appellate Court, came to be accepted by the High Court in the Civil revision for the reason of the omission by the office to take timely objection. This case cannot be a precedent for holding that delay can be excused in similar cases even without any application made for the purpose. It is well settled that submission of a formal application under section 5 of the Limitation Act is essential for enabling a Court to, if at all, condone the delay in filing an appeal and in the absence of such an application there can be no power to condone the delay whch cannot be excused by resort even to the inherent powers saved under section 151 of the C.P.C.

Reference in this behalf may be made to Kundan Lal Mukandi Lal v. Kanshi Ram and another AIR 1926 Lah. 135 and to Baldeo Prasad Shukul v. Sukhdeo Prasad Shukul AIR 1929 All.

485. Moreover, it was held in Shangara Singh and others v. Imam Din and others AIR 1940 Lah. 314, that an application under section 5 ibid can be filed only at the stage of institution of the appeal but not in an already pending appeal. Since in the case in hand a prayer for condonation of delay was not made at all therefore, there could not arise any question of excusing the delay. A copy of the impugned decree not having been filed until after the expiry of limitation, the learned District Judge has, as held in Mst. Masum Begum v. Madan Mohan Lall and others 8 P W R 1911 and Imam Gul v. Mst. Begum Ji 1980 CLC 530 rightly concluded that the appeal was barred by time.

5. This revision petition being without substance is accordingly dismissed in limine.