MUHAMMAD FEROZE KHAN vs KHALIQUE DAD KHAN And 28 Other

S.A. NUSRAT, J.--This appeal is from the judgment of the Lahore High Court, dated 14-6-1973 whereby a secondAppeal from the order of the Additional District Judge, Sargodha, dated 21-3- 1969 reversing the order of the Civil Judge, Second Class, Sargodha, dated 13-4-1968 was dismissed.

2. The petition for leave to appeal was barred by eight days and is accompanied by an application for condonation of delay. While granting leave, the delay was condoned subject to all just exceptions.

3. The application for condonation of delay is opposed by the respondents who have filed a detailed and documented counter-affidavit.

The relevant facts in this connection are that the impugned order was passed by the High Court on 14-6-1973 and application for certified copy was made on 14-7-1973 which was delivered on 17-7- 1973. The petition for leave to appeal was instituted on 24-8-1973, although the period of limitation, including the time spent on obtaining certified copy had expired on 16-8-1973. The delay, of 8 days is sought to be explained on the ground that Sargodha District, where the appellant resided was affected by serious floods at the relevant time and, therefore, it was not possible for the appellant to travel to Lahore for filing the petition. The respondents in their reply, dated 5-11-1985, which is supported by the affidavit of Muhammad Afzal, have stated that the village Kot Bhiy Khan is situated on the Pacca metalled road called Jhawarian Shahpur Saddar Road and is about 8 miles from the river Jhelum. Canal Shahpur Branch also falls in between the river and the village Kot Bhiy Khan, so that the flood water cannot flew towards Bhiy Khan and is interrupted by the canal embarkments. Village Bhiy Khan is at a distance of 3 miles from Jhawarian. It is further affirmed that in July and August, 1973 village Bhiy Khan remained safe from flood waters and there was no flood in that area. The Jhawarian Shahpur Road remained open to traffic without any hindrance. In this connection a flood damage report prepared by the Sub-Divisional Officer Highways Sub- Division II, Sargodha has been filed (Annexure 'B'). The learned counsel for the respondents pointed out that the affidavit in support of the application for condonation of delay filed by Feroze Khan was attested on 23-8-1973 which shows that the petition for leave to appeal was ready on that date and could have been filed the same day. It was further asserted that this goes to show that since the affidavit was attested on 23-8-1973, the petitioner was available at Lahore on the same date with all the relevant papers.

4. We have perused the application for condonation of delay,' the supporting affidavit of Feroze Khan, the reply furnished by the respondents, and the affidavit of Muhammad Afzal filed in support of the same. Feroze Khan has nowhere stated in the affidavit as to when he had came over to Lahore to file the appeal. Admitted the affidavit was sworn by him on 23-8-1973 and, therefore, his presence at Lahore on the said date stands confirmed. If the affidavit could be filed on 23-8-1973 it needs to be explained why the petition was not lodged on the same day. Other things apart, there is no explanation for this delay and since the delay of each day is to be explained, the appellant has failed to do the same. Besides the respondents had filed their' reply to the application for condonation of delay on 5-11-1985 supported by an affidavit alongwith documentary evidence refuting the allegations of flood damage in the area, which was the sole ground for seeking condonation of delay. No further affidavit challenging these facts has been filed. The appellants have, however, filed an application under Order XVI, rule 9 of the Supreme Court Rules for bringing on record the legal heirs of Lala son of Muzaffar respondent No.4 who died on 21-12-1975 leaving behind his six heirs as mentioned in the application. By another application made under section 5 of the Limitation Act, delay is sought to be condoned in making the said application which too is admittedly barred by time. The consideration of the application for bringing the legal heirs is, however, not necessary in view of the serious opposition on behalf of the respondents to the very maintainability of the appeal on account of having become time barred.

5. On consideration of the facts and reasons mentioned above, we find that the appellants have failed to furnish any satisfactory explanation for the delay in filing the petition in time. As a sequel to this finding the appeal must fail and is dismissed as time-barred with no order as to costs.