1998 PLP 307 (SCMR)

IRSHAD HASAN KHAN, J.

By this judgment we propose to dispose of Civil Petitions for Leave to Appeals Nos.303 and 304 of 1996.

2. Civil Petition No.304 of 1996 against the original order of the Lahore High Court, Rawalpindi Bench, dated 28-9-1995, dismissing Writ Petition No. 1078 of 1996 is barred by 217 days. Mr. Izharul Haq, learned counsel for the petitioner contended that the impugned order was violative of the principle of natural justice, inasmuch as, no notice was issued as to the date of final hearing and that Mr. Bashir Ahmed Kiani, Standing Counsel to the Government of Pakistan was not authorised to represent the Revenue Division relating to C.B.R., Income-Tax, Sales Tax and Customs duties etc. in view of the amended Rules of Business vide Cabinet Division's Notification No.4-25/93-Min-I, dated 19th May, 1994. We are afraid the petitioner cannot be permitted to raise this point for the first time during the course of arguments in that, the same was not raised either in the review petition before the High Court or in the petitions filed before this Court. On the contrary, on the question of limitation, the petitioner took a different stand before the High Court as is reflected in the admitting order dated 7-11-1995 passed in R.A. No.24 of 1995, the relevant portion whereof reads thus:-- "It is further contended that the learned counsel who had argued the writ petition at Rawalpindi Bench, was not fully aware of the factual aspects of the case and, therefore, during the course of hearing of the petition, proper assistance could not be rendered as a result whereof an error which is patent on the record of the case has crept in, which requires judgment in question to be reviewed."

3. This Court has repeatedly laid down that so far as the Limitation is concerned the Government cannot be treated differently from an ordinary litigant. If in spite of enormous resources and facilities, the Government continues to delay the filing of cases in time detrimental to its own interest, the opposite party cannot be penalised for its negligence. It is a settled law that each day of limitation must satisfactorily be explained which the petitioner has failed to do in this case. The petition is hopelessly barred by time and no sufficient ground exists for condonation of delay. Civil Petition No.304 of 1996 must fail on the ground of limitation and is, accordingly, dismissed hereby.

4. When faced with the above situation, Mr. Izharul Haq vehemently argued that Civil Petition No.303 of 1996 is a petition against the order dated 10-3-1996 of the learned Judge in Chambers refusing to review the previous order dated 29-10-1995 passed in Writ Petition No. 1078 of 1996, which was within time qua that order. This is, however, wholly immaterial, inasmuch as, the review petition was also dismissed on the ground of limitation as well as merit. It would be advantageous to reproduce para 10 of the judgment passed in review which reads thus:-- "The review petition filed on' 29-10-1995 to challenge the order dated 28-9-1995 is patently barred by time as the same could have been filed within a period of twenty days w.e.f. passing of the order as per Article 162 of the Limitation Act, which order was passed in presence of Mr. Muhammad Bashir Kiani, Advocate, learned counsel for the applicant who appeared and argued the writ petition on behalf of the respondents/applicants in the writ petition. Contention of the learned counsel for the petitioner that the delay has occurred due to lack of knowledge about the order which came to the knowledge of the applicants on 19-10-1995 hence is false and as such cannot be believed as a reasonable cause to condone the delay in filing of this time-barred petition, therefore, the review petition is liable to be dismissed on this ground as well." Clearly, the object of Civil Petition No.303 of 1996 seeking leave to appeal against order dated 10-3-1996 refusing to review the order dated 29-10-1995 in the writ petition is to seek withdrawal/recalling of the previous order which had become final on the ground of limitation, therefore, refusal to review the same will not give fresh period of limitation to challenge it. The same view was l expressed by this Court in Ghulam Hussain v. Kanwar Ashiq Ali Khan (PLD 1980 SC 198) wherein it was held:-- "While seeking leave to appeal against order refusing to review the main previous order, in fact the object of the petitioner is to seek vacation of the said previous order which by efflux of time has become final. The fact that in review the Court further affirmed the aforesaid order is immaterial inasmuch as a refusal to review the same will not give a fresh period of limitation to challenge it. In this peculiar situation therefore when the previous order has become binding on the petitioners, they cannot be allowed to bypass it by simply pleading that the present petition is against order refusing to review the same because while stating so their intention is to point out errors and mistakes in the basic order which were sought to be removed through a review application but which failed." The result is that Civil Petition No.303 of 1996 is also dismissed for the reasons abovestated, without expressing any view on the merits of the case.

5. Before parting with the judgment, it may, however, be observed that the Central Board of Revenue will be at liberty, if so advised, to consider the withdrawal or otherwise of Notification S.R.O. No.885(1)/90 dated 26-8-1990 after notice to the respondents and providing them with an opportunity of being heard. Mr. S.M. Zafar, learned counsel for the respondents is also agreeable to this course. Leave is refused in both the petitions. A.A./C-7/S Leave refused