P L D 1966 Supreme Court 261 (PLP)

Held, that rule 1, Order XIII of the Supreme Court of Pakistan Rules, 1956, provides that a petition for special leave shall be lodged within 60 days from the judgment and order sought to be appealed from. Cases in which limitation is not to run from the day judgment and order sought to be appealed from is made are particularised in the second part of the rule, viz., where certificate under Article 58 (2) (a) of the Constitution is refused by the High Court, the petition for special leave shall be lodged within 30 days from the date of refusal. Cases which are not covered by this provision will, therefore, be governed by the first part of the rule and limitation will start from the day the judgment and order sought 'to be appealed from was made. Under Article 58 (3) of the Constitution the right to apply for special leave to appeal accrues when the judgment, decree, order or, sentence by the High Court is made. And if as a rule of practice the petitioner is required to apply in the first instance to the High Court for a certificate under the Letters Patent, the operation of rule 1, Order XIII of the Supreme Court of Pakistan Rules is not suspended thereby. The limitation runs from the day the judgment, decree, order or sentence by the High Court is made. However, under the proviso to the said rule 1 there will necessarily have to be an extension in the period of limitation, for the time spent in pursuing the application for certificate in the High Court would undoubtedly constitute a sufficient cause for extension of limitation. But where the petitioner is guilty of laches, the Court would not, unless the delay of each day is explained satisfactorily, deprive the respondent of a valuable right vested in him by efflux of time. Dauran Khan v. Naseer Muhammad Khan P L D 1964 S C 136 distinguished. Paresh Chandra Biswas, etc. v. Tapen Kanti Choudhury, etc. P L D 1963 S C 598 ref. Sheikh Bashir Ahmad Senior Advocate Supreme Court (Muhammad Ali Zaidi Advocate Supreme Court with him) instructed by Z. A. Qureshi Attorney for Petitioners. Sh. Naziruddin Senior Attorney for Respondent. Date of hearing: 7th January 1966. MUHAMMAD YAQUB ALI, J.‑This petition for special leave to appeal from the judgment and order of a learned Single Judge of the High Court of West Pakistan, Bahawalpur Circuit, is out of time by 214 days. The judgment sought to be appealed from was delivered on the 10th July 1964, and application for grant of certificate to appeal under clause 10 of the Letters Patents moved after inordinate delay on the 23rd September 1964, was dismissed on the 22nd February 1965. Copy of the order was applied for on the 23rd February 1965, and although it was completed and ready on the 28th March 1965, delivery was taken on the 8th April 1965. Ten more days allowed to pass by before the petition for leave was presented in the registry on the 18th April 1965. By then the petition had become barred by time as aforesaid, but the learned counsel for the petitioners desires us to reckon limitation from the date on which the certificate to appeal under clause 10 of the Letters Patent was refused. Reliance in this behalf is placed on the decision in Dauran Khan v. Naseer Muhammad Khan (1) P L D 1964 S C

136. The Office had in that case raised the question whether the petition should be registered in view of the fact that under the Letters Patents of the High Court an appeal to a Division Bench from the Single Judge's order would be competent. The counsel for the petitioners relied on the absence of any bar in Article 58 (3) of the Constitution to the grant of special leave to appeal from the judgment and order of a Single Judge of the High Court, but the plea did not find favour as such a course would have the effect of practically destroying the jurisdiction possessed by the High Court under Letters Patents. In this context it was observed that it is meet and proper that before a matter comes up by way of appeal to this Court, the final judgment of the High Court should be available for assistance. But this does not mean that rule 1, Order XIII of the Rules of this Court which provides that a petition for special leave shall be lodged within 60 days from the judgment an order sought to be appealed from stands varied. In fact cases in which limitation is not to run from the day judgment and order sought to be appealed from is made are particularised in the A second part of the rule viz., in which certificate under Article 58 (2) (a) of the Constitution is refused by the High Court the petition for special leave shall be lodged within 30 days from the date of refusal. Cases which are not covered by this provision will, therefore, be governed by the first part of the rule and limitation will start from the day the judgment and order sought to be appealed from was made. It was contended by the learned counsel for the petitioners that as petition for special leave to appeal from the judgment and order of a Single Judge of the High Court is not to be entertained until certificate to appeal under the Letters Patents ‑ is refused, it is anomalous that limitation should start from the day the judgment and order was made and not from the day when the, right to apply for special leave to appeal accrues. But this is not, a correct approach to the construction of rule

1. Under Article 58 (3) of the Constitution the right to apply for special leave to appeal accrues when the judgment, decree, 'order or sentence by the, High Court is made. And if as a rule of practice the petitioner is required to apply in the first instance to the High Court for a certificate under the Letters Patents, the operation of rule 1 is not suspended thereby. The limitation runs from the day the judgment, decree order or sentence by the High Court is made: but under the proviso to rule 1 there will necessarily have to be an extension in the period of limitation for the time spent in pursuing the application for certificate in the High Court would undoubtedly constitute a sufficient cause for extension of limitation. . It was so held by this Court in Paresh Chandra Biswas, etc. v. Taper Kanti Choudhury etc. (1) P L D 1963 S C

598. In the instant case the petitioners are, however, unable to explain the delay in moving the High Court for certificate under clause 10 of the Letters Patents, the delay in obtaining delivery of the copy of the order refusing to grant certificate which in fact was wholly redundant for the purpose of this petition and the further delay in moving this Court after the copy had been obtained. It is to be borne in mind in this behalf that by efflux of time a valuable right has vested‑in the respondent and unless delay for each day is explained satisfactorily by the petitioners there will be no justification to deprive the respondent of that right. In this view as no sufficient cause for extension of limitation has been made out the petition for special leave to appeal is dismissed, as barred by time. K. B. A. Petition dismissed.