Mst. NADIRA SHAHZAD vs MUBASHIR AHMAD and others

' AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 25-4- 1994 of a learned Single Judge of the Lahore High Court passed in Writ Petition No,158 of 1994 filed by respondent No,1 against the dismissal of his Family Appeal No,98 of 1993 by the learned Additional District Judge, Rawalpindi, allowing the same by setting aside the above appellate judgment and remanding the case to the learned appellate Court. Leave to appeal was granted to consider, whether the High Court was right in holding that strict compliance of explanation of delay of each day as contemplated under section 5 of the Limitation Act was not to be applied to application under Rule 22 of the Family Courts Rules, 1965, hereinafter referred to as the Rules.

2. The brief facts are that the appellant filed a suit for the recovery of dower and maintenance in the Court of Senior Civil Judge/Judge Family Court, Rawalpindi, against respondent No,1 on or about 7-9-1991. The above suit was resisted by respondent No,1 inasmuch as a written statement was filed. On the basis of pleadings of the parties, the learned Judge Family Court framed four Issues. In support of the claim, the appellant examined herself, whereas no evidence on behalf of respondent No,1 was produced. The learned Judge Family Court by his judgment/decree dated 18- 10-1992 decreed the suit of the appellant for a sum of Rs,50,000, being the amount of dower and for maintenance at the rate of Rs,5,000 per month for the period commencing from October, 1987, to 18-3-1992. Against the above judgment respondent No,1 filed aforesaid family appeal, which was barred by time by six months and 20 days. Alongwith the memo. Of appeal, respondent No,1 filed an application under Rule 22(1) of the Rules for condonation of delay. In the above application, the ground taken by respondent No,1 was that before the passing of the judgment by the learned Judge Family Court he had to leave the country owing to serious family problems and that his Advocate did not inform him about the above judgment/decree which was passed without recording the evidence. The learned appellate Court, after referring to the relevant case-law, found that the reason give for the extension/condonation of delay of the above period was not sufficient and, therefore, dismissed the appeal through its judgment/decree dated 23-12-1993. It may be stated that during the pendency of the above appeal, respondent No,1 paid the dower amount of Rs,50,000 as stated by the learned counsel for the parties.

' Against the above judgment, respondent No,1 filed aforementioned writ petition, which was allowed by the judgment under appeal for the reason that the appellate Court proceeded on the assumption that the objections filed on 7-4-1993 to the execution application under Order XXI, Rule 58 read with section 151, C.P.C. Were filed by respondent No,1 though factually the same were filed by his mother in his own right against the attachment of the bungalow. Secondly, the application of respondent No,1 under Rule 22 of the Rules was dealt with in the light of the provision of section 5 of the Limitation Act, hereinafter referred to as the Act, on the basis of wrong assumption. Thereupon, the appellant filed a petition for leave to appeal, which was granted to consider the above question.

3. In support of the above appeal, Sardar Muhammad Aslam, learned Advocate Supreme Court appearing for the appellant, has contended that the grounds disclosed by respondent No,1 in his application under Rule 22(1) of the Rules for the condonation of delay were not sustainable in law.

In support of his above submission he has referred to the contents of the aforesaid application particularly paras. 3 and 4 thereof, which read as follows:-- "3. That before the passing of the said judgment and decree the petitioner had to leave the country owing to serious family problems and at the time of the passing of the said judgment and decree, he was out of the country.

4. That the petitioner's counsel did not inform the petitioner about the development in the suit which was decreed against the petitioner without recording the evidence of the petitioner, who was defendant in the suit."

' To reinforce the above submission, he has referred to the following cases:--

(i) Mustafa v. Settlement Commissioner, Bahawalpur Division, Bahawalpur (1974 SCMR. 104);

(ii) Muhammad Nawaz and 3 others v. Mst. Sakina Bibi and 3 others (1974 SCMR 223);

(iii) Sher Muhammad v. Said Muhammad Shah (1981 SCMR 212);

(iv) Jhanda v. Maqbool Hussain etc. (1981 SCMR 126); and

(v) Muhammad Ismail v. Mst. Zubeida Khatoon (PLD 1973 Karachi 503).

' His further submission was that the acknowledgement receipt in respect of the service of notice of the execution proceedings on respondent No,1, a photostat copy of which is available on page 77 of the paper book, clearly indicates that the above notice was received by respondent No,1 himself as it contains his signature.

' On the other hand, Mr. Muhammad Nawaz Abbasi, learned Advocate Supreme Court appearing for respondent No,1, has urged that a distinction is to be drawn between the provisions of Rule 22 of the Rules and section 5 of the Act inter alia for the reason that the language employed therein is different inasmuch as the words "satisfies the Court " have not been employed in the above Rules and secondly, under the above Rule, the words "extend the said period" have been employed and not condonation. His second submission was that the above acknowledgement receipt was not relied upon by the appellant before the learned Judge in chambers.

4. It may be pertinent to reproduce Rule 22 of the Rules and section 5 of the Act, which read as follows:-- Rule 22 of the Rules: "22.--(1) An appeal under section 14 shall be preferred within thirty days of the passing of the decree or decision, excluding the time requisite for obtaining copies thereof: ' Provided that the appellate Court may, for sufficient cause, extend the said period.

(2) The appeal shall be in writing, shall set out the grounds on which the appellant seeks to change the decree of decision, shall contain the names, description and addresses of the parties and bear the signatures of the appellant or his counsel.

(3) A certified copy of the decree and decision of the Court where a decree is passed and a copy of the decision where only an order is passed shall be attached with the appeal."

' Section 5 of the Act: "5. Any appeal or application for a revision or a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period."

A perusal of (Rule 22 of the Rules, indicates that prescribed period of limitation for filing of an appeal under section 14 of the Family Courts Act, 1964, within thirty days of the passing of decree or decision exckiding the time requisite for obtaining the copies thereof. The proviso to above sub- rule (1) empowers the appellate Court to extend the said period for sufficient cause.

' It may further be noticed that section 5 of the Act has the caption "Extension of period in certain cases". It lays down that in any appeal or application for a revision or a review of a judgment or for leave to appeal or any other application to which the above section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within the limitation period.

5. A comparison of the above two provisions indicates that in pith and substance, the effect is the same. In both the cases, an appellant or an applicant has to show sufficient cause. The term "sufficient cause" has received judicial interpretation from the superior Courts. It is to be presumed that the draftsman while framing Rule 22 was aware of the meaning of the above term "sufficient cause" assigned by the superior Courts while interpreting the same with reference to the various provisions of statutes/rules, wherein the same has been employed. The employment of the words "when the appellant or applicant satisfies the Court" and non-user of the same in above Rule 22 of the Rules does not, in any way, make any distinction as to the interpretation of the above term "sufficient cause". The different phraseology used in the above two provisions cannot be a ground for placing different construction to the above term "sufficient cause", which has received judicial interpretation for over a century from the superior judiciary. We are, therefore, of the view that the case-law as to the interpretation of the above term with reference to section 5 of the Act shall be equally applicable to the construction of Rule 22 of the Rules.

6. The grounds disclosed by respondent No,1 in the above-quoted paras.3 and 4 of the application under Rule 22 of the Rules lack material particulars as to the date when respondent No,1 left for abroad, as to the date of his return etc. He was supposed to give justifiable reason for the delay of each day, which he failed to do.

7. Additionally, the ground that his Advocate has not informed him about the result of the suit has been held not sufficient ground inter alia in the case of Muhammad Nawaz and 3 others (supra), the case of Mustafa v. Settlement Commissioner, Bahawalpur Division, Bahawalpur (supra), and the case of Sher Muhammad v. Said Muhammad Shah (supra).

' Reference may also be made to the judgment in the case of Muhammad Ismail v. Mst. Zubeida Khatoon (supra), wherein Tufail Ali A. Rahman C.J. Of the erstwhile High Court of Sindh and Balochistan, while construing Rule 22 of the Rules, held as follows:-- "The proper approach, to my mind, is that the appellant must show that his conduct throughout the period from the passing of the judgment until the filing of the appeal has been one of reasonable diligence and if, despite such reasonable diligence, he has not been able to file an appeal in time then a Court can and should condone the delay. In the present case there is not a word of explanation as to what was being done from the 11th of November, 1971, when the copies were supplied up to the date, which incidentally is not specified, when the appellant left Hyderabad for his native place in order to celebrate Eid. In any view of the matter, therefore, even if I were to hold that the period of limitation was 90 days or that learned counsel bona fide so believed and that is a valid ground of condonation there is still a large period of time in regard to which the appellant's conduct has not been explained; indeed not even an attempt has been made to explain it. I am, therefore, constrained to hold that the present appeal is time-barred."

' In the above case the delay period was 61 days.

8. We are inclined to hold that no distinction can be made out as to the interpretation of the term "sufficient cause" while construing Rule 22 of the D Rules in contrast to section 5 of the Act.

Respondent No,1 was expected to act with reasonable diligence, which he failed to do.

9. The reasons found favour with the learned Judge in Chambers are not legally sustainable. Even if we were to ignore respondent No,1's mother's above objections dated 7-4-1993 filed under Order XXI, Rule 151, C.P.C., it would not make any difference as we have pointed out hereinabove that the above reasons given by respondent No,1 for the condonation of the period of six months and 20 days were not sufficient. The same would be the result even if we were to ignore the above registered acknowledgement receipt dated 14-1-1991 containing respondent No,1's signature in respect of the receipt of the notice of the execution proceedings.

10. The upshot of the above discussion is that the learned Judge in Chambers was not justified in pressing into service his Constitutional jurisdiction under Article 199 of the Constitution as the judgment of the learned appellate Court did not suffer from any jurisdictional or factual infirmity warranting interference by the High Court. On the contrary, the same was in consonance with the law as declared by this Court inter alia in the above reports, therefore, the judgment under appeal is not sustainable. The appeal is allowed; the judgment of the High Court is set aside and the judgments of the learned appellate Courts and the leaned Judge Family Court are maintained. The executing Court shall proceed with the execution of the decree in accordance with law. However, there will be no order as to costs.