2008 PLP 274 (PLC)

KHAWAJA NAVEED AHMED, J.

This Miscellaneous Appeal No.47 of 2007 has been filed by Messrs Echo West International (Pvt.) Limited against the order, dated 24-12-2005 passed by the respondent No.1, Sindh Social Security Court No.1 at Karachi in Appeal No.8 of 2004 preferred by the appellant. The appellant has also filed an application (C.M.A. No.3367 of 2007) under section 5 of the Limitation Act, 1908 read with subsection (4) of section 64 of the Provincial Employees Social Security Ordinance, 1965, for condonation of delay of about 605 days in filing present miscellaneous appeal., The main grounds urged by the learned counsel for condonation of delay are that the order impugned herein was bad in law and was a void order and as such no limitation runs against a void order. The second ground for condonation of delay is that the appellant came to know about the impugned order on 13-11-2007, as his previous counsel had left the job and had not informed the appellant about the dismissal of Appeal No.8 of 2004. According to he learned counsel, the appellant came to know about the passing of the impugned order only on 13-11-2007, when the officials of respondents Nos.2 and 3 approached the appellant with attachment warrants. He further submitted that he has filed an affidavit in support of the application for condonation of delay but no counter-affidavit has been filed by the respondents Nos.2 and 3 to controvert the position. He submitted that contents of the affidavit filed by the appellant having gone unchallenged are deemed to be true and delay in filing the appeal be condoned., The learned counsel for the appellant in support of his contention has relied upon the judgment of a Division Bench of this Court in the case of Civil Aviation Authority v. Providence Aviation (Pvt.) Ltd. reported in 2000 CLC 1722 wherein it has been held as follows:-- "(5) At the very outset, the learned counsel for the appellant has urged that this appeal has been filed with delay of three days which was beyond the control and power of the appellant. He submitted that the appeal was prepared well in time inasmuch as that copy of the same was forwarded to the respondent by Registered Post A.D. much before expiry of period of limitation, however, the appeal could not be presented since the post of Law Officer concerned remained vacant till 13-12-1999 when the new incumbent received his posting order and on said date concerned officer attempted to come in High Court but his entry in the premises was impossible due to restriction on account of a case fixed before the Incharge, Anti-Terrorist Activities Court. Learned counsel for the appellant, therefore, prayed that the short delay in preferring the above appeal be condoned under section 5 of the Limitation Act. It is pertinent to note that the appellant has moved an application for condonation of the delay supported by an affidavit which has remained unchallenged by the respondents. In the aforementioned circumstances, we are constrained to observe that the contents of the affidavit having gone unchallenged are deemed to be true and the delay in preferring the appeal is condoned. Next, learned counsel for the appellant submitted that the period of licence, according to agreement, commenced from 17-10-1996 and expired on 16-10-1999, but the learned Single Judge under the impugned order, dated 5-11-1999 has allowed the respondent to continue with use of the counters in the lounges beyond stipulated period under the licence which had already lost its efficacy by lapse of time. He further contended that the permission which was initially granted to the respondent was in the nature of revocable licence thereby creating no vested right to entitle him to the grant of injunction as prayed by him. Besides, he argued, during the subsistence of licence, the respondent had misused the same as he stated soliciting customers looking for porters, a line of business for which the appellant had already granted licence to other persons. He added that the respondents had caused harassment to the customers and the complaints kept pouring in against him continually. Learned counsel for the respondents, however, took up the stand, in his arguments, that though the appellant had granted permission to the respondents to carry on the aforementioned business; but, no counters were provided to the said respondents to conduct their business practically and the respondents were not made factually capable to be in a position to carry on their business, therefore, the term of three years is to be construed to run from the day when counters were provided to them. He submitted that counters were provided to the respondents under the orders of this Court passed on 22nd May, 1999, therefore, the period of the permission is to run from that date notwithstanding the duration of licence agreement viz. from 17-10-1996 to 16-10-1999, therefore, the learned Single Judge was justified in allowing him to continue the business under the impugned order. To controvert the aforementioned submission, learned counsel for the appellant submitted that according to the terms of licence the appellant was not under any obligation to provide the counters to them, therefore, the ground raised by the respondent has no weight. It is significant to note that with the assistance of both the learned counsel, we have gone through the licence agreement and do not find any condition to oblige the appellant to provide counters after granting the permission to the respondents to run their business." Mr. Jawad A. Sarwana, learned counsel for the respondents Nos.2' and 3 in reply has contended that the appellant has not given sufficient cause for condoning the delay of 605 days in filing the instant appeal and the appeal is liable to be dismissed. The learned counsel in support of his contention has relied upon the case of Province of Balochistan v. Muhammad Usman Khan Jogezai reported in 1986 SCMR 2010, wherein a Full Bench of the Honourable Supreme Court has observed as under:-- "Admittedly this petition for review is time-barred by 35 days and by the time petitioner filed the petition for leave to appeal in this Court the alleged appeal as of right under Article 185(2)(d) of the Constitution had itself been rendered as time-barred by 27 days. No cogent ground for the condonation of the delay of 35 days in the filing of the review petition is made out. Moreover, even if the delay were to be condoned, then also there is no error in the judgment of this Court, dated 5-5-1986 which requires correction by review. It was open to the learned counsel for the petitioner at the hearing of the petition which was decided by the judgment, dated 5-5-1986 to point out that as a matter of fact an appeal as of right was competent. This was not done and for this omission on the part of the learned counsel for the petitioner, the petitioner cannot now seek relief by way of a review petition." The learned counsel for the respondents Nos.2 and 3 in reply to the contention of appellant's counsel that constraints of limitation would not apply against void orders has relied upon the case of Muhammad Raza Khan v. Government of N.-W.F.P. reported in PLD 1997 SC 397, wherein the Honourable Supreme Court has observed as follows:-- "(5) Now looking to applicability of limitation against void orders question would naturally arise whether right of such person against whom an adverse order exists would be unfettered, ignoring established principles and would enjoy limitless discretion to knock the door of justice whenever desired by him; or same should be regulated by judicious norms. We earnestly feel that unless certain constraints apply against right of challenging void order specially relatable to period of knowledge, the same may create implications leading to dangerous results. Principle of justice and fair play does not help those who were extraordinary negligent in asserting their right and despite becoming aware about alleged void order adverse to their interest remain in deep slumber. Therefore, according to our considered opinion, facility regarding extension of time for challenging orders cannot be legitimately stretched to any length of unreasonable period at the whim's, choices or sweet will of affected party. Thus, order termed as nullity or void could at best be assailed by computing period' of limitation when he factually came to know about the same. When a person presumes that adverse order is a nullity or totally devoid of lawful authority and ignores it beyond the period specified by law of limitation, then he does so at his own risk. Therefore, in all fairness terminus a quo will have to be fixed, the date of knowledge of alleged void order; which too must be independently established on sound basis. In this behalf, we derive strength from the observations contained in Sayed Sajid Ali v. Sayed Wajid Ali PLD 1975 B.J. 29 and S. Sharif Ahmad Hashmi v. Chairman Screening Committee 1978 SCMR 367." On the point of limitation the learned counsel for the respondents Nos.2 and 3 has also relied upon the case of Wali Muhammad v. Inamul Hassan Khan reported in 1985 SCMR

352. In this reported case, the Honourable Supreme Court has observed as under:- - "(7) The foremost question requiring consideration is with regard to the finding of the High Court that the letters patent appeal filed by the appellants was time-barred and was liable to be dismissed accordingly. Admittedly the appeal was filed beyond the prescribed period of 20 days and, in the circumstances, an application under section 5 of the Limitation Act was presented for condonation of delay. The explanation for delay furnished by the appellants was duly examined and in the ultimate analysis it was held that no sufficient ground was made out for the condonation of delay. It was observed that a valuable right in the meanwhile had been created in favour of the respondents which could not be lightly interfered with by accepting the time-barred appeal of the appellants. The finding of the learned High Court in this regard, which we have examined, is unexceptionable and we are, therefore, not inclined to differ from the same. The appeal in the circumstances merits dismissal on this short ground alone." Lastly, the learned counsel for the respondents Nos.2 and 3 has relied upon the case of Johnson & Johnson Pakistan (Pvt.) Ltd. v. Commissioner, Sindh Employees' S.S.I. reported in 1999 PLC (C.S.) 1532, which directly relates to the case in hand. In this case, a learned Single Judge of this Court has observed as under:-- "In the instant case, there has been delay of 46 days in filing appeal whereas the appellants in affidavit have not accounted for each days' delay, only vague statement has been made that the Directors retired, therefore, the appeal could not be filed in time. The said ground for condonation of delay could not be said to be sufficient cause within the meaning of section 5 of Limitation Act considering the fact that valuable and precious rights were created in favour of respondent for effecting recovery of arrears against the appellants. Accordingly, this application under section 5 of Limitation Act is dismissed. Consequently, C.M.A. No.475 of 1997 has become infructuous, therefore, both the applications are dismissed so also this appeal being time-barred," I have heard the learned counsel for the parties and have gone through the authorities cited by both the learned counsel. Admittedly the miscellaneous appeal is hopelessly time-barred. Vague explanations have been given for condoning the delay in filing the appeal and, in the circumstances, no interference can be made in the order passed by the Sindh Social Security Court No.1 at Karachi. The learned counsel for the appellant has drawn my attention towards the arbitrary act of the officer of the Sindh Social Security Institution who without having any authority under the law has imposed penalty as well as reassessed the amount according to his own whims. In my view, if there is any violation of law or discrimination or misuse of discretion or existence of any arbitrary act on the part of any Government functionary, it can be challenged by the appellant by invoking constitutional jurisdiction of this Court challenging the mala fides of such action, if so advised. However, as far as this appeal is concerned it is hopelessly time-barred. C.M.A. No.3367 of 2007 is dismissed. Resultantly M.A. No.47 of 2007 also dismissed in limine being time-barred along with C.M.A. No.3368 of 2007. M.H./E-1/K Appeal dismissed.