2015 PLP 157 (MLD)

ROOH-UL-AMIN KHAN, J.

This civil revision petition is directed against the judgment and order dated 10-2-2011, passed by learned Additional District Judge-XI, Peshawar, whereby dismissing petitioner's appeal, the judgment and order of the trial court dated 27-10-2010, has been upheld.

2. Facts in brief, forming the background of the instant revision petition are that plaintiff Abdul Ali (respondent herein) filed a suit against Accountant General Khyber Pakhtunkhwa, Peshawar (petitioner herein) for rendition of account with regard to his GP Fund challenging the deduction of Zakat and Ushr from his pension, fully described in the heading of the plaint. The suit was contested by the defendant but during the pendency of suit, no body turned up as such proceeded against ex parte. After recording ex parte evidence of the respondent, the learned trial court granted an ex parte preliminary decree in favour of the respondent vide judgment dated 13-6-2009, for setting aside of which, the petitioner moved an application before the learned trial court on 28-7-2010, which was contested by the respondent but ultimately met dismissal. Being discontented with the order of the learned trial court, petitioner preferred appeal before the learned appellate court, but met the same fate. Hence, this revision petition.

4. I have heard the exhaustive arguments of the learned counsel for the parties and have perused the record with their valuable assistance.

5. The sole ground agitated by the petitioner in the application for setting aside ex parte decree is that an ex parte decree has been passed in favour of the respondent without proper service of the petitioner/ defendant. But this stance of the petitioner does not find favour from the available record which rather speaks otherwise. As per record, on institution of the suit the petitioner was summoned by the trial court for 21-12-2006. Summons issued to the petitioner for the said date, reflects service of the petitioner through one Rizwan the official of the petitioner's department. The factum of service of the petitioner is further fortified by one Esa Khan Senior Auditor, who represented the petitioner in the trial court by marking his appearance on the aforesaid date. Record divulged that one Fazal-ur-Rehman, Senior Auditor of the petitioner's department has also been examined as P.W.1 on 9-5-2008, which prima facie establish the awareness/knowledge of the petitioner about the proceedings but the petitioner kept mum for a long period of more than a year in as such as the petitioner participated in the proceedings of final decree but did not move any application for setting aside of the preliminary ex parte decree in favour of the respondent. By virtue of Article 164 of the Limitation Act, the petitioner was required to file the application for setting aside the ex-parte decree within a period of thirty days. The ex parte decree has been passed on 13-6-2009 whereas the petitioner has filed the application on 28-7-2010 i.e. after a period of more than one year, which is hopelessly time barred. The petitioner has not filed any application under Article 5 of the Limitation Act, 1908, for condonation of such delay by plausibly explaining delay of each day. No doubt, it is principle of universal application that the cases should be decided on merits, after hearing both the sides, and no body should be condemned unheard, as maxim of Audi alteram partem, is very jealously and consistently followed by the Courts, which is also the principle of natural justice but at the same time keeping in view the conduct of the petitioner as manifest on the face of record showing his full knowledge about the proceedings and indicating his purpose (sic) silence, the golden maximum that law aids vigilant and not the indolent cannot be oversighted.

6. The arguments of the learned Deputy Advocate General that the vested rights of the government are involved in the case, suffice it to say that under the law there is no impunity for the government department and it may not be treated differently than the private litigants. The controversy regarding giving grace to the government department, as compared to private litigants cropped before the Hon'ble Supreme Court to Pakistan in case titled, "Government of Punjab through Secretary Services and General Administration and Information Department, Lahore and another v. Muhammad Saleem (PLD 1995 SC 396), which was put to rest that the government cannot be treated differently than the private individuals on the question of limitation. It is settled law that limitation once having started to run, cannot be stopped by any subsequent act, as held by the apex court in case titled, "Cantonment Board Rawalpindi v. Muhammad Sharif through Legal heirs' (PLD 1995 SC 472). It is also settled law that in case of condonation, the applicant has to explain each and every day's delay, but in the case in hand, no such explanation by the petitioner has been given. Limitation is not a mere technicality rather is a mandatory statutory provision and treating it a formality or triviality would amount to make the entire Limitation Act, as redundant and superfluous despite the fact that redundancy shall not be attributed to statute. While enacting the Limitation Act, 1908, the legislature in its wisdom has fixed the period of limitation for a particular action. The structure of the law is founded upon the legal maxims, that delay defeats equity, time and tide wait for none and law helps the vigilant not the indolent. The object of law of limitation is to help the vigilant and not the indolent. Helping hand could not be extended to a litigant having gone into deep slumber, on having become forgetful of his rights. In other words, the law of limitation is a law which is designed to impose quietus on legal dissensions and conflicts. It requires that persons must come to the court and take recourse to legal remedies with due diligence. Besides, invoking remedy by some aggrieved person beyond the period of limitation prescribed for redressal of grievance, creates a valuable right in favour of the opposite party, therefore, in such case, delay of each day has to be explained by the defaulting party to the satisfaction of the court, which could not be condoned lightly or as of routine, as such arbitrary exercise of discretion would cause serious prejudice to the opposite party.

7. Both the courts below have deeply appreciated each and every aspect of the case and have rightly applied the law on the subject. I see no illegality or irregularity much less any jurisdictional defect in the impugned orders, which may warrant interference of this court in its revisional jurisdiction. Resultantly, this revision petition being meritless, stands dismissed. JJK/40/P Petition dismissed.