P L D 1995 Lahore 492 (PLP)

This is an appeal against the judgment and decree, dated 9-12-1989 whereby. the learned Additional District Judge, Gujrat dismissed the appellant's appeal against the judgment and decree, dated 18-7-1987 by virtue of which the appellant's suit against the respondent for the recovery of Rs.1,69.229.63 was dismissed by the learned Senior Civil Judge, Gujrac.

2. The relevant facts which gave rise to the present appeal are that on 26-4-1983 Islamic Republic of Pakistan, hereinafter called the appellant, instituted a suit against Abdul Aziz respondent for the recovery of Rs.1,69,229.63. It was alleged that the respondent got five contracts from the appellant for the supply of various articles detailed in para. No.2 of the plaint. He, however, could not perform his part of the contract despite numerous reminders. Consequently, in accordance with the terms and conditions of the said contracts the appellant purchased the contracted articles from the market at the risk and cost of the respondent. The said risk purchase resulted in additional expenditure of Rs.1,69,229.63 which the respondent under the contract was bound to pay to the appellant. The suit was contested by the respondent as a result of which as many as eight issues were framed. The parties led their evidence on the said issues. After considering the said evidence the learned trial Court vide judgment and decree, dated 18-7-1987 dismissed the suit leaving the parties to bear their own costs.

3. Feeling aggrieved the appellant went in appeal before the District Court. The said appeal was resisted on the ground of limitation. The legal and preliminary objection of the respondent with regard to limitation was upheld by the learned Additional District Judge who vide judgment, dated 9-12-1989 dismissed the appeal holding that the same was hopelessly barred by time.

4. Dissatisfied with the above decision the appellant has come in second appeal. 5. 1 have heard the parties' learned counsel and have also perused the material available on record.

6. It is evident from the record that the first appeal against the judgment and decree, dated 18-7-1987 was instituted by the appellant in the District Court on 11-10-1987 with an application for condonation of delay under section 5 of the Limitation Act.

7. The record also shows that the appellant had applied for the supply of certified copies of the impugned judgment and decree on 20-7-1987. The said copies were ready for delivery on 10-8-1987 and were supplied on 12-8-1987. Thus, admittedly, the appeal was barred by 32 days.

8. The application under section 5 of the Limitation Act. which the appellant moved before the learned District Judge rea4s.as follows:-- Bare reading of the contents of the above application would show that the appellant had not advanced any cogent reason for the condonation of delay. The only ground which had been mentioned for the condonation prayed for was that the Vakalatnama in favour of the learned counsel for the appellant had been received after the period of limitation. This is hardly a ground for condonation of delay. Perusal of the record shows that power of attorney in favour of the learned counsel for the appellant (Mr. Syed Nadeem Saqlain, Advocate) was issued by the Section Officer, Ministry of Defence after receiving the approval of the Ministry of Law and Parliamentary Affairs, Law Division; through letter, dated 18-8-1987. There is no explanation on record as to why the appeal could not be instituted immediately after the said date. Surprisingly, the application under section 5 of the Limitation Act is not supported by an affidavit and in this view of the matter even the ground which the appellant had taken in the said application could not be seriously considered.

9. Learned counsel for the appellant has relied on Pakistan Post Office v. Settlement Commissioner and others 1987 SCMR 1119 and Deputy Collector of Customs and 2 others v. Muhammad Tahir and another PLD 1989 SC 627 and has argued that in the petitions on behalf of the Government or Government functionaries in matters involving Government interest or public interest the petitioners no doubt would be treated at par with ordinary citizens; but they would be given the same concessions and considerations as given to the other citizens and while examining the merits of application for condonation of delay the Court could look into the conduct of the subordinate functionaries on whose conduct the higher policy making functionaries have only a remote physical control: He maintained that in the present case delay was caused due to the processing of the case in the Ministry of Defence and then in the Ministry of Law. Unfortunately, the argument which the learned counsel for the appellant adopted during the hearing of this appeal did not find any mention in the application for condonation of delay. It was not the case of the appellant in the said application that delay had been caused by the functionaries of the aforementioned Ministries. In fact perusal of the power of attorney in favour of Syed Nadeem Saqlain, Advocate, learned counsel who represented the appellant in the first appeal shows that the Ministry of Law and Parliamentary Affairs had issued the necessary approval on the 18th August, 1987 i.e. within the period of limitation. Learned counsel could not explain as to why the institution of the appeal was delayed thereafter.

10. On the other hand learned counsel for the respondent has relied on Assistant Collector, Central Excise and Land Customs (Lahore Division) v. The Sky Room Limited 1988 SCMR 1229, Government of Balochistan v. Abdul Nabi and another 1988 SCMR 1908 and Pakistan through Secretary, Ministry of Defence v. Messrs Azhar Brothers Limited 1990 SCMR 1059 to argue that Government could not be treated differently from a private litigant on the question of condonation of delay under section 5 of the Limitation Act and that the inordinate delay in the present case could not be condoned because of the indolent conduct of the appellant. It has been held in the aforementioned cases that condonation of delay sought mainly on the ground that the case papers had to be submitted to various authorities of the Government for their decision and sanction which caused delay in the preparation of case, could not be claimed by the Government who had to be treated at par with the ordinary litigant especially when the concerned department had not even cared to explain in detail with regard. to dates as to why the delay of each day could not be avoided.

11. The authorities cited by the learned counsel for the respondent are fully attracted to the present case. I, therefore, hold that the appellant had not been able to make out a reasonable case for the condonation of delay. The learned lower appellate Court, therefore, was justified in dismissing the appeal on the question of limitation. There is no substance in this appeal which is dismissed with costs. AA./1-147/L ?????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.