1994 PLP 2300 (MLD)

This revision petition is directed against the judgment/order, dated 4-6-1991 of the learned District Judge, Abbottabad whereby the appeal of the petitioner was dismissed as time-barred.

2. Learned counsel for the respondent raised preliminary objection to the effect that the appeal was filed by an unauthorised person, therefore the appeal under Order 27, Rules 1 and 2, C.P.C. was liable to be rejected. The learned Assistant Advocate-General replying this objection submitted that the appeal was filed by S. Sikandar Shah, Advocate who vide letter No.SOFT(F&D) IV-329/70, dated 26-i1-1974 was appointed as - standing counsel for Forest Department, Abbottabad and as such was competent to file an appeal on behalf of the Forest Department. In view of para. 13.9 of the Punjab Law Development Manual the Government Pleader is exempted from filing the power of attorney as such the appeal filed by him could not be deemed to be defective. On the main appeal learned Assistant Advocate-General submitted that decree was passed by the trial Court on 14-10-85 whereas application was filed on 22-10-85 and the copy whereof was delivered on 24-2-86 and appeal was filed before the District Judge on 9-3-86. Taking into consideration this period it would be deemed that the appeal was filed within 20 days of the receipt of attested copies and as such the appeal was within time and was liable to be heard and disposed of on merits.

3. Opposing these contentions learned counsel for the respondent submitted that Zaffar Mahmood, Assistant, Office of DFO applied on 24-12-85 for the copies of the judgment and on that very date the copies were issued to him. He also referred to the statement of Zaffar Mahmood recorded in this Court as C.W.1 who stated that he applied for the copies on behalf of DFO, Kaghan which were supplied to him on the same day and he delivered the same to the DFO concerned. Muhammad Hanif, DFO who was examined as C.W.2 stated that the copies obtained by Zaffar Mahmood were delivered to him on 30-12-85 which were sent to the standing counsel for legal action. He also admitted that the, copies were obtained for furnishing the same to the department for legal action. Since the copies were available with the department and they intentionally delayed the matter, therefore they were not entitled to the concession and this petition is liable to dismissal.

4. After hearing the learned counsel for the parties and going through the record of the case I find that besides the copies which were obtained by the DFO, an application was made on 22-10-85 by the Conservator of Forests through his counsel upon which it was written that they should inquire after. 10 days. It appears that the applicant went to the copying office on 30-10-85 on which date it was written that. It appears that thereafter the applicant did not go to the copying office for obtaining copy or inquiring about the progress of tie matter. The endorsement on the application which is dated 10-12-85 shows that the application was returned to the applicant so as he should approach the copying office at Mansehra for the needful. The two applications Exh. PA and Exh.PB would show that the same very department i.e. Forest Department had applied for the issuance of copies, one on 22-10,85 by the Conservator of Forests through his counsel and the subsequent one by the D.F.O. on 24-12-85 the copies whereof were delivered on the same very day. But the former application was not properly pursued, therefore copies could not be obtained in time. There seems to be a gross negligence on the part of the functionaries of the Forest Department who did not vigilantly persuade for the issuance of the copies, therefore, this lapse occurred due to their fault. In such circumstances the learned Court has rightly held that they were in possession of one copy therefore there was no need for obtaining another one and they, simply to cover up delay resorted to this device. In this view of the matter this revision petition is dismissed.

5. Even on merits the petitioners have no case as the preliminary decree was passed by the trial Court and the parties can in the proceedings of the final decree settle their claim. A.A./1604/P Revision dismissed.