2019 PLP 2111 (YLR)

RAJA SAEED AKRAM KHAN, J.

The titled petition for leave to appeal has been directed against the order of the learned High Court dated 09.02.2018, whereby the appeal filed by the petitioners, herein, has been dismissed being hopelessly time barred.

2. Necessary facts for disposal of the instant petition for leave to appeal are that the land comprising survey Nos.1276 and 1277, was acquired by the Collector Land Acquisition Poonch, for the construction of Government Boys High School Phalyian through Award No.03/2008, dated 12.04.2008. The compensation of the land was assessed as Rs.86836/- per kanal, along with 15% compulsory acquisition charges, to be paid to the landowners. Being dissatisfied with the compensation so assessed and fixed the landowners filed a Reference before the learned District Judge/ Reference Judge Rawalakot on 18.07.2008, which was later on, entrusted to the Additional District Judge/Reference Judge for disposal. The learned Reference Judge answered the reference in affirmative while enhancing the compensation of the land in dispute from Rs.86836/- per kanal to Rs.5,00,000/- per kanal along with 15% compulsory acquisition charges, vide judgment and decree dated 27.11.2015. The aforesaid judgment and decree of the Reference Judge was challenged by the petitioners, herein, before the learned High Court by filing an appeal, which has been dismissed through the impugned order on the ground of limitation, hence this petition for leave to appeal.

3. Sardar Karam Dad Khan the learned Advocate-General, while appearing on behalf of the petitioners submitted that the impugned order of the learned High Court is passed in deviation of law laid down by this Court that the question of limitation is a mixed question of law and facts, which cannot be resolved without recording evidence. He added that important questions of law of public importance were involved in the appeal requiring deliberation and decision on merit, rather to dismiss the same on the question of limitation. He added that the learned High Court has erred in law while not taking into consideration that the predecessor of respondents Nos.1 to 11 was duly served and his statement was also recorded by the Collector. Furthermore, the father of the respondents, herein, also received the amount of compensation but in spite of that after a period of more than five years a baseless and time barred reference before the Reference Judge was filed on 17.04.2013. The reference was strongly contested on the point of limitation by filing written objections but the learned Reference Judge failed to consider the same and even not framed the issue in this regard, hence the judgment of the learned Reference Judge was illegal and contrary to law. He further added that the learned High Court has also not attended in a legal manner the question that no limitation runs against an illegal order. In this regard he relied upon the cases reported as Sultan Mehmood and others v. Barkat Ali and another [2009 CLC 899], Ch. Muhammad Zaman v. Amir Hanif and 19 others [2015 YLR 694] and Muhammad Iqbal and 14 others v. Custodian and 23 others [2016 SCR 358] and requested for grant of leave to appeal.

4. On the other hand, Sardar Muhammad Raiz Khan, Advocate, the learned counsel for the caveator-respondents while supporting the impugned order of the learned High Court submitted that the same has been passed in accordance with law, which is not open for interference by this Court. He added that according to the celebrated principle of law, leave cannot be granted in routine as no question of law of public importance is involved in the case. He added that the learned High Court has rightly dismissed the appeal while attending the question of limitation which goes to the root of the case. He also drew the attention of this Court towards the fact that the judgment and decree was passed by the learned Reference Judge in presence of the counsel for the petitioners-respondents, therein, and according to the celebrated principle of law enunciated by this Court in a number of cases, the knowledge of the counsel is the knowledge of the party. The learned High Court has rightly dismissed the appeal on the ground of limitation. He referred to the case reported as Mst. Shamim Akhtar v. Muhammad Shafi and 9 others [2013 SCR 1102] and requested for dismissal of the petition for leave to appeal.

5. I have heard the learned counsel for the parties and gone through the impugned order along with other record made available. Through the impugned order the learned High Court has dismissed the appeal filed by the petitioners, herein, on the ground of limitation. The main argument of the counsel for the petitioners is that the judgment/order passed by the learned Reference Judge was void ab initio for which no limitation is prescribed under law. The argument of the learned counsel for the petitioners is the result of misconception, as the presumption of truth is always attached to the orders of the Court unless rebutted. For the sake of arguments, if the version of the petitioners is accepted even then they cannot succeed because it is a settled principle of law that a void order which adversely affects the rights of a party must be challenged within a reasonable time. We are fortified from the judgment of this Court delivered in the case reported as Mira Lal Hussain v. Custodian of Evacuee Property and others [1992 SCR 214], wherein, in para 11 of the report it was observed as under:- "

11. No case having been made out for condonation, we now pass on to the other limb of the argument of the learned counsel for the appellant that the order of allotment in favour of Abdul Aziz was void on account of the fact that it had been passed during the subsistence of a previous allotment order made in his favour. The contention of the learned counsel is that a void order has to be struck down without regard to limitation. The cases cited by the learned counsel for the appellant have already been mentioned. These judgments do lay down the proposition canvassed by Ch. Muhammad Sharif Tariq that there is no limitation so far as a void order is concerned. However, it is not a universal rule which may be necessarily applied in every case without regard to the consequences. While this rule would apply to cases where a person who is adversely affected by such an order does not come to know of its existence and has had no occasion to challenge that order there is no warrant for the conclusion that a void order should be left unchallenged. If a person comes to know of a void order which adversely affects him but still he does not challenge it within a reasonable time to the Courts may validly refuse to ignore it on the ground of laches, acquiescence or estoppel. ..."

6. In the case in hand, as pointed out by the learned counsel for the respondents that at the time of pronouncement of judgment by the learned Reference Judge, the counsel for the petitioners, respondents, therein, was present in the Court and in his presence the judgment was announced and decree was passed. Nothing has been brought on the record that at the time of pronouncement of judgment by the Reference Judge the counsel representing the petitioners, herein, was not present in the Court. Under the settled principle of law enunciated by the superior Courts, the knowledge of the counsel is the knowledge of the party and mere on the ground that the counsel has not intimated the party regarding the pronouncement of the judgment, the delay cannot be condoned. Reference may be made to the case reported as Faiz Akbar v. Mst. Nasim Begum and 8 others [2003 YLR 2729], wherein it was observed in para. 9 of the report as under: "

9. In this case the decision was announced by the Custodian in presence of the counsel for the parties. We have repeatedly laid down that knowledge of the counsel is the knowledge of the party. If any authority on this subject is required, the case titled Chairman AJK Council v. Abdul Latif and 5 others [1997 MLD 2926] can be referred. In the present case there is no affidavit of the counsel for the respondents that the judgment was not announced in his presence nor he has filed any affidavit that he could not convey the decision to the contesting respondents in time....." Similarly, in another case reported as Mst. Shamim Akhtar v: Muhammad Shafi and 9 others [2013 SCR 1102], it was observed as under:- "It also appears that a contradictory stand has been taken before this Court as the learned counsel for the appellant has argued that the appellant's counsel failed to inform her regarding announcement of the judgment of the trial Court. Whereas in the memo of appeal, the appellant has taken the stand that the attorney of the appellant has not apprised her. Be that as it may, however, according to the celebrated principle of law, knowledge of counsel is knowledge of the party, therefore, such lame excuse cannot be accepted for condonation of delay spreading over months time "

7. The learned High Court while passing the impugned order has intelligently attended the question of limitation while resolving the same in accordance with law because according to the celebrated principle of law without crossing the bar of limitation the Courts are not justified to enter into the merits of the case and delay in limitation can only be condoned if sufficient cause has been shown. In the case in hand, no sufficient reason whatsoever, has been brought on the record by the learned Advocate-General for filing the appeal at such a belated stage. The case-law referred to by the learned counsel for the petitioners has no relevancy to the case in hand, therefore, needs not to be discussed. The impugned order of the learned High Court is perfectly legal. No question of public importance is involved in the petition for leave to appeal. Resultantly, the instant petition for leave to appeal being devoid of any force stands dismissed with no order as to costs. ZC/69/SC(AJ&K) Leave refused.