MUHAMMAD WARIS vs MUHAMMAD ARSHAD and anothers
These civil petitions for leave to appeal are directed against an order of the Lahore High Court whereby an application for condonation of delay in filing civil revisions was allowed subject to payment of costs. The core legal question was whether the High Court erred in condoning the delay without a medical certificate and whether section 5 of the Limitation Act applied to civil revisions under section 115 of the Code of Civil Procedure. The Supreme Court of Pakistan dismissed the petitions, holding that a medical certificate is not invariably necessary to prove illness as a ground for condonation of delay when the application is supported by an un-rebutted affidavit. The court declined to interfere with the finding of fact regarding sufficient cause and left open the question of the applicability of section 5 of the Limitation Act to civil revisions for a future appropriate matter. The key principle laid down is that illness pleaded for condonation of delay can be accepted on the basis of an un-rebutted affidavit without mandatorily requiring a medical certificate.
- Is a medical certificate invariably necessary when illness is taken as a ground for condonation of delay?
- Can a finding of fact regarding sufficient cause for condonation of delay be interfered with when supported by an un-rebutted affidavit?
- Does section 5 of the Limitation Act apply for condonation of delay in filing a civil revision under section 115 of the Code of Civil Procedure?
- Section 5, Limitation Act 1908
- Section 115, Code of Civil Procedure 1908
ORDER
1. ' HAMID ALI MIRZA, J.---These civil petitions for leave to appeal are directed against an order, dated 22-2-2000 passed by a learned Judge in Chambers of Lahore High Court, Lahore, whereby Civil Miscellaneous Application No, 1/C of 1999 in Civil Revision Nos.411-D and 412-D of 1999 moved by the respondents for condonation of delay was allowed subject to payment of Rs,2,000 as costs.
2. ' We have heard the learned counsel for the petitioner and perused the record.
3. ' The contention of the learned counsel for the petitioner is that no medical certificate in respect of the ground for condonation of delay was filed by the respondents and further that section 5 of the Limitation Act was not applicable for condonation of delay in filing a civil 'revision under section 115, C.P.C.
4. ' The learned Judge in Chambers in the concluding paragraph of the impugned order has observed:-- ' "I have given due consideration to the valuable arguments on both sides. As the application for condonation of delay on the ground of applicant's attorney suffering from high fever beyond his control is supported by an affidavit and there is no counter-affidavit, I consider it a sufficient cause for condonation of delay for not filing the Revision Petition within the prescribed period of limitation.
5. However, the applicant is burdened with costs of Rs,2,000."
6. It is not for all the time necessary to file medical certificate in case illness is taken as a ground for condonation of delay when other reliable material is available to support the said ground of ailment and no rebutting material has been brought on record by the contesting party. In the instant case, no counter-affidavit was filed by the petitioner to deny as to what was stated by the respondent with regard to his ailment. No plea was even taken before the learned Judge in Chambers of High Court that section 5 of the Limitation Act was not applicable in the civil revision.
7. The learned Judge, in view of the material on record, found that sufficient cause was made out for condonation of delay. The said finding of fact, in the circumstances, cannot be interfered with by this Court. So far the contention that section 5 of the Limitation Act would not apply for condonation of delay in case of civil revision filed under section 115, C.P.C., we may observe that this point can be decided later on in some other appropriate matter. In view of the aforesaid reasonings, we find that the petitions have no merit, therefore, leave to appeal is refused and the same are dismissed.