Muhammad Aslam etc. vs Pop etc.

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

R.S.A. No.08/2015

Muhammad Aslam etc. Versus Province of Punjab etc.

S. No. of Date of order/ Order with signature of Judge, and that of order/ Proceeding Parties or counsel, where necessary Proceeding

30.09.2019 Mr. Kifayat Hassan Khan Daha, Advocate for the appellants.

Through this Regular Second Appeal (RSA), the appellants have called in question judgment and decree dated 26.03.2014 whereby the suit for specific performance instituted by their predecessor in interest namely Muhammad Aslam (deceased) was dismissed under Order XVII Rule 3 CPC for failure to produce evidence and also called in question judgment dated 01.12.2014 whereby appeal of the present appellants against the said order was dismissed by the learned lower Appellate Court as barred by time. It is contended by learned counsel for the appellants that the judgments and decrees passed by both the Courts below are against the facts and law on the subject, therefore, the same are liable to be set aside.

2.It is observed from the record that Muhammad Aslam (plaintiff) who was predecessor in interest of the appellants and respondents No.2 to 10 are brothers and sisters inter se and respondent No.11 is their mother. It

was claimed by Muhammad Aslam, predecessor in interest of the appellants that suit land was allotted to his father who died 10 years previous to filing of the suit and after his death on 02.02.2002 the respondents agreed to sell the suit property to Muhammad Aslam for consideration of Rs.3,00,000/- in presence of witnesses but as they subsequently changed their mind, hence, necessity to file the suit for specific performance arose.

The respondents contested the suit filed by predecessor of the appellants which was dismissed on 26.03.2014 under Order XVII Rule 3 CPC as he failed to produce evidence before the learned Trial Court in support of his claim.

Subsequently the present appellants filed an appeal on 20.11.2014 against the aforesaid judgment and decree dated 26.03.2014 alongwith an application for condonation of delay stating therein that Muhammad Aslam, their predecessor in interest had been murdered on 23.10.2014 and FIR under Section 302 PPC was registered in this regard. It is argued that prior to his murder he had been abducted by an organized group in Karachi for ransom due to which he could not file appeal within time. The learned Appellate Court dismissed the appeal alongwith their application for condonation of delay under Section 5 of the Limitation Act on the ground that the day of abduction of deceased Muhammad Aslam (predecessor in interest of the present appellants), his return and payment of ransom amount as claimed by the

present appellants has not been proved on the record.

Even today when asked to explain the delay in filing appeal against the judgment dated 26.03.2014 the story of abduction has been repeated by learned counsel for the appellants without demonstrating as to when the predecessor in interest was abducted and released after payment of ransom and how he was prevented from filing the appeal till the date of his murder i.e. 23.10.2014 by some unknown person. The appellants had also not been able to explain in detail the dates on which their predecessor in interest was prevented from bringing evidence to the Court on the basis of circumstances beyond his control and also the exact dates on which they could not file appeal within time due to the uncontrollable state of affairs. The fact of abduction of their father has not been substantiated by any document. Moreover the FIR produced by the appellant regarding murder of their father on 23.10.2014 is also silent about his abduction at the relevant time, hence delay on behalf of Muhammad Aslam has not been sufficiently explained to warrant condonation of delay. Besides learned counsel for the appellants has also not been able to explain the delay between the day of death of predecessor in interest of the appellants i.e. 23.10.2014 and filing of appeal on 20.11.2014. The appellants were required to explain each and every day of delay in filing the appeal but the arguments raised by them have remained unsubstantiated

and without any force. The appellants have not been able to show from the record any sufficient cause to condone the delay in filing appeal before the learned Appellate Court and failed to substantiate their case through cogent material, therefore, the learned Appellate Court was justified in dismissing their appeal as barred by time. As the appellants have not been able to point out any illegality, erroneous exercise of jurisdiction or misreading and non-reading of the record by the learned lower Appellate Court, hence no interference in the impugned judgment is called for and the instant appeal being devoid of merits, is dismissed in limine.

(Muzamil Akhtar Shabir) Judge *WaqaR*