P L D 1966 Supreme Court 661 (PLP)

CORNELIUS, C. J.‑By an order dated the 31st January 1963, the Court granted leave to the Province of East Pakistan to appeal against a judgment and decree of a learned Single Judge of the High Court awarded in revision, reversing the concurrent findings of the appellate Court, viz., the Subordinate Judge, Bogra, and of the trial Court, in a suit brought by the respondents Meajan Ali Ahmad and others to challenge the action of the Collector in respect of a Hat. The latter action was based upon the Hat having been acquired as a rent‑receiving interest. The plaintiffs alleged that after the acquisition by notification, the Collector had duly recognised them as direct tenants under the Government and had realised rent from them. The Government denied the title of the respondents and alleged that their settlement papers were false and fabricated for the purpose of avoiding the acquisition of the Hat. Leave to appeal was granted to examine two grounds o attack on the judgment of the learned Single Judge. The first was that even within the terms of the amended section 115 of the Civil Procedure Code, the High Court had no jurisdiction to reverse A the concurrent findings of facts reached by the Courts below. The second was that by the effect of an Ordinance XII of 1960, a Hat has been declared to be non‑retainable land even by a non- rent receiver. The order granting leave took notice of the fact that the petition was filed 113 days out of time, but the delay was condoned on a ground expressed as follows:‑ "The delay, it appears, was occasioned due to the recent floods in the District of Bogra and the pre‑occupation of the B District Officers in flood relief work." When the appeal was taken up for hearing, Mr. Hamidul Haq Chowdhury on behalf of the respondents raised the objection that there was in fact no ground whatsoever upon which the long delay which bad been allowed to occur could have been condoned. Apart from the fact that the Government has available to it facilities in respect of litigation not enjoyed by ordinary litigants, the fact was that the plea that delay was occasioned by flood in Bogra was entirely incorrect. He referred to the application itself which admitted that the last date for filing an appeal against the judgment of the learned Single Judge dated the 2nd August 1962, was the 1st October 1962, allowing 60 days of limitation. It was merely said that in October the Joint Deputy Commissioner informed the Board of Revenue that the judgment of the High Court should be appealed from, and added that "the officers of the Department concerned were pre‑occupied in emergency flood relief works in the district on account of the sudden and heavy flood in the District of Bogra and as such there has been delay in contacting the Legal Re membrancer." This was the material on which the ex parte order condoning the delay was made, and leave was granted but on contest by the respondents, further details have been furnished on behalf of the State. In an affidavit sworn on the 18th April 1966, it is said that the good situation lasted fr9xn the middle of August 1962 to the middle of October 1962. Thereafter, on the 22nd October 1962, the Deputy Commissioner communicated with the Board of Revenue regarding the filing of an appeal. It was said that the Hat in question "is one of the biggest Hats of the Bogra District and as such the main source of revenue income." (If that be true, one would expect an unusual degree of concern on the part of the Government to safeguard its rights in respect of this Hat.) However, it was not until the 7th November 1962, that is when 16 days had elapsed after the despatch of the Deputy Commissioner's letter that the Board of Revenue referred the matter to the Legal Remembrancer for the filing of an appeal. Five days later on the 12th November, the Legal Remembrancer sent the file to the Senior Government Pleader, who with commendable promptness, gave an opinion in favour of filing of an appeal on the following day. Application for a copy of the judgment was made thereafter, on a date not mentioned, but it is admitted in the affidavit that copies of the judgment and decree were obtained on the 8th December 1962. Thereafter, the file was sent to the Senior Government Pleader to take the final steps, and he instituted the special leave application on the 22nd January 1963. The affidavit goes on to say that the delay was not intentional and was due partly to the heavy flood in Bogra, and also "because the file of the case moved through the various departments of the Government, which took a long time." Mr. Hamidul Haq Chowdhury has had no difficulty in showing that on these facts, there had been delay which it is entirely impossible to excuse. The Government were aware from the outset that on account of the floods in Bogra, they were already out of time on the day when the Deputy Commissioner made his reference, i.e., the 22nd October 1962. The case arising as it did out of the requisition of rent‑receiving interests, a subject which has given rise to intensive litigation, of which in the main the Board of Revenue was presumably in charge, it is not easy to see why in this particular case, affecting, as is said one of the biggest Hats in the Province and a major source of revenue for the District of Bogra, it should have been necessary to relegate the papers after the decision of the High Court to the district authorities for their opinion, which in the circumstances could hardly have possessed any value. The Government's case rested on statutes, and not on considerations of balance or of justice in regard to local conditions. Before the High Court, the Province was represented by a Government Pleader. This was a case which should certainly have been dealt with in Dacca without need of reference to Bogra at all, but even allowing for the unnecessary reference to the district authorities, and the pre occupation of those authorities with the flood, there are delays following after the 22nd October 1962, which cannot be explained on any ground that can be acceptable in a Court to avoid the effect of limitation in respect of rights that have become vested through lapse of time. There was no need for the Board of Revenue to have taken 16 days before referring the matter to the Legal Remembrancer, or for the Legal Remembrancer to take another 5 days before referring the matter to the Government Pleader. Worst of all is the delay of some 4.5 days between obtaining copies of the judgment and decree and the filing of the petition for special leave. There is no excuse for that particular period, when the file was not passing between offices, but was conceivably in the possession of the Government Pleader, who had already given an opinion in favour of filing an appeal. Once time limited by law has expired, the party which is out of time must, particular in a case where vested rights have been r, assured throw here of an o 11 every day of delay It is evident tat here is cut to fin's' an explanation for any period of the delay which has been allowed to occur, totaling 113 days in all, that is, nearly twice the prescribed period of limitation. We are satisfied that this is a case in which the prayer for condonation cannot be entertained. The order of condonation made at the time when leave was granted was passed ex parte and is rested moreover, on an application which gave the impression that the entire period of delay was due to the floods p in Bogra. Now that the true facts are known, it is clear that there is no ground for allowing condonation. There is reason to think that there are other modes in which uniformity in the application of the Ordinance of 1960 can be restored qua this particular Hat. We accordingly sustain the objection raised by Mr. Hamidul Huq Chowdhury and holding that the petition for special leave to appeal was liable to be dismissed through being out of time, we rescind the leave granted and for the reasons mentioned above, we dismiss the petition. Costs are allowed to the respondents: A. H. Petition dismissed.