2017 PLP 832 (MLD)

JAWAD HASSAN, J.

Through this single judgment we intend to decide the instant Intra court Appeal as well as I.C.A. No.185 of 2013, and I.C.A. No.186/2013 along with applications for condonation of delay (C.Ms. No.1/2013) in all the appeals, as all the same are outcome of impugned judgment dated 23.10.2012 passed by the learned Single Judge passed in W.P. No.28854/2011, W.P. No.27160 of 2011 and W.P. No.25019/2011 whereby the writ petitions of the Respondents wee allowed.

2. The C.Ms No.1/2013 are the applications for the condonation of delay of abovementioned appeals. The learned Law Officer stated that the delay in filing these appeals be condoned because due to misreading and misinterpreting, instead of Intra Court Appeals, the Appellants filed the appeals in the Hon'ble Supreme Court of Pakistan. He further argued that the present Appellants feeling aggrieved of the said findings preferred Civil Petitions Nos.2443-L to 2445-L of 2012 titled "Government of the Punjab and others v. Zahoor Ahmad and others" (the CPLAs) before the Hon'ble Supreme Court of Pakistan, which came up for hearing before the apex Court on 10.03.2013, and the same were disposed of as having been withdrawn.

3. The learned counsel for the Respondents by means of a preliminary objection, questioned the maintainability of the present Intra-Court Appeals on the ground of limitation and placed reliance upon the case titled Dr. Syed Sibtain Raza Naqvi v. Hydrocarbon Development and others (2012 SCMR 377), Gen. (R) Parvez Musharraf v. Nadeem Ahed (Advocate) and another (PLD 2014 Supreme Court 585), Ghulam Hussain Ramzan Ali v. Collector of Customs (Preventive), Karachi (2014 SCMR 1594), Government of Baluchistan v. Abdul Nabi and another (1988 SCMR 1906), Province of Punjab through District Officer Revenue, Rawalpindi and others v. Muhammad Sarwar (2014 SCMR 1358), Province of Punjab and others v. Aftab Ahmed and others (2012 PLC (C.S) 1402) and Ministry of Defence and 3 others v. Muhammad Athar (2013 MLD 1284).

4. When the learned AAG and Law Officer were asked to first cross the hurdle of limitation, they informed that the C.Ms. No.1 of 2013 have been moved by the Appellants under the provisions of section 5 of the Limitation Act, 1908, with a request to condone the delay caused in filing of Intra-Court Appeals with the prayer that the delay caused in filing the appeals is neither deliberate nor intentional rather due to misreading and misinterpreting, the CPLAs were filed against the impugned judgment and time taken into the disposal of the said CPLAs may very kindly be excluded and the appeals be deemed in time.

5. We have heard the arguments of both the sides and perused the record.

6. We examined the record which reflects that in the said applications no reason or justification has been extended by the appellants justifying such delay in filing the Intra-Court Appeals which are the sole basis of the prayer made in the Civil Miscellaneous Petitions for condonation of delay. The only ground/reason for condonation of delay mentioned in the applications is "misreading and misinterpreting" which is neither cogent nor confidence inspiring to extend favour for condonation of delay. 6(sic). The limitation provided for filing an appeal from a decree or order of a High Court in the exercise of its original jurisdiction is twenty days from the date of decree or order as provided under Article 151 of the First Schedule provided under section 3 of the Limitation Act, 1908.

7. The judgment passed by the leaned Single Judge was delivered on 23.10.2012. On behalf of the Appellants, CPLAs were filed before the Hon'ble Supreme Court of Pakistan in December, 2011 which was after a considerable delay after passing of the judgment by the learned Single Judge.

8. The Hon'ble Supreme Court of Pakistan when disposed of the said CPLAs, made no observations, which are of significance for the purposes of disposal of the present Civil Miscellaneous seeking condonation of delay in filing of Intra-Court Appeal rather simply disposed of as having been withdrawn. The order was passed by the Hon'ble Supreme Court of Pakistan on 01.03.2013 in presence of both the parties and it is clearly noted that it was never disputed before the apex Court that the judgment passed by the learned Single Judge was amenable to Intra-Court Appeal. When the CPLAs were disposed of being withdrawn and filing of ICAs before us, the date of filing CPLAs must be taken as a date of filing of ICAs. Keeping in view the period of limitation provided under Article 151 of the Limitation Act, 1908 the ICAs were thus barred by limitation. 11(sic). The Hon'ble Supreme Court of Pakistan while disposing of the CPLAs have not given any findings regarding the issue of condonation of delay in filing the ICAs, rather disposed of having been withdrawn; meaning thereby, left it open for this Court to decide the appeal in accordance with law subject to all just and valid objections, thus, we can examine the objections raised by the Respondents with regard to the limitation.

12. Reliance in this regard can be placed on the case titled Mst. Khadija Begum and 2 others v. Mst. Yasmeen and 4 others (PLD 2001 Supreme Court 355) in which, while dealing with the question of limitation it has been categorically held that sufficient cause must be shown by the person seeking condonation of delay, which means "circumstances beyond control of party concerned" and that, nothing shall be deemed to be done in good faith which is not done with due care and attention. Furthermore, the Hon'ble Supreme Court of Pakistan in case of Federation of Pakistan and 2 others v. Khurshid Ahmed and another (1999 SCMR 664) has dealt with the question of availability of ICA or otherwise and interesting factor is that in the reported matter, the General Headquarters (GHQ) was a party to the litigation and after such authoritative findings by the Hon'ble Supreme Court of Pakistan, the General Headquarters must become wiser and aware of the remedy available under the law but notwithstanding such position a remedy by way of CPLA was availed, while ICA was undeniably available to the aggrieved party. It is a settled position of law that in case of time barred proceedings, defaulting party must explain the delay of each day caused in preferring a valid proceedings in accordance with law.

14. The learned Law Officer has attempted to argue that they became aware of the position that ICAs were the proper remedy only on 01.03.2013, when the Hon'ble Supreme Court of Pakistan disposed of their CPLAs. We do not agree with this argument of learned Law Officer.

15. We, therefore, adjudge, the delay in filing of ICAs would not become liable to be condoned, as the appellants have failed to show any sufficient reasons for condonation of such delay.

16. For all what has been discussed above, we see no reason to condone the delay in filing of I.C.As; resultantly, the C.M. No.1/2013 are dismissed.

17. Since the C.M. No.1/2013 have been dismissed and the delay caused in filing of I.C.As. has not been condoned; therefore, the I.C.As. mentioned above are also dismissed as being barred by time.

18. Apart from this, we observe that the impugned judgment is personam for the Respondents and not rem, hence only the condition of the Departmental examination did not extend to the Respondents, which were PMS Officers in Grade-17. ZC/G-2/L Appeal dismissed.