1997 PLP 806 (MLD)

5. The petition for condonation of delay is vehemently opposed on the ground that it was hopelessly time‑barred; that the petitioners acted against the advice‑of their Law Officer and the Advocate‑General, Punjab, who were of the opinion that it was not a fit case for filing the revision; that the decision of the Secretary to Government of the Punjab in filing the appeal against the legal advice was contumacious particularly when the time‑frame was not followed in filing the revision petition and that the mere fact that the delay had occurred in soliciting the advice from the Solicitor and the Advocate‑General, Punjab would not constitute a good ground for condonation of delay because the Government have a highly skilled and properly paid staff to deal with such situation quickly, promptly and at priority level. In this context reliance was placed on a number of authorities out of which special emphasis was laid on:‑‑ (i) Deputy Director Food, Lahore Region and others v. Syed Safdar Hussain Shah reported as 1979 SCMR 45; (ii) Custodian of Enemy Property v. Hoshang M. Dastur and others reported as 1979 SCMR 191; (iii) Mst. Ghulam Fatima v. Chief Administrator of Auqaf, Punjab and another reported as 1983 CLC 692; (iv) The West Pakistan Agriculture Development Corporation and 2 others v. Soomar and 2 others reported as PLD 1984 Kar. 190; (v) Commissioner of Income‑tax, Lahore Zone v. Rais Pir Ahmad Khan reported as 1981 SCMR 37; (vi) Government of the Punjab through Secretary (Services), Services General Administration and Information Department, Lahore and another v. Muhammad Laseem reported as PLD 1995 SC 396.

6. There is no dispute that the principle laid down in the above authorities that delay of each day in filing the revision petition beyond the limitation period should be meticulously and satisfactorily explained and that the law of limitation equally applies to an ordinary citizen and a Government Department. No distinction can be shown to a Government Department only because it has to seek advice from different departmental authorities before availing a legal and remedial action. However, the perusal of section 5 of the Limitation Act will show that in appropriate cases delay can be condoned if sufficient cause is shown for such condonation. The term "sufficient cause" should receive a liberal construction so as to advance substantial justice. On the one hand a precious right is accrued to a party on account of expiry of limitation period whereas the right of another party should not be defeated only on technical ground. The words "sufficient cause" being a question of fact, vary from case to case and ultimately it rests on the satisfaction of the Court. If one reaches a conclusion that a circumstance or a set of circumstances shown by a party, justified the act or omission of such party for not preferring an appeal or application within the prescribed period, the Court may extend the time. Though the section gives a wide discretion in determining what is "sufficient cause", but the discretion has to be exercised in a judicial manner. It should be remembered that "sufficient cause" must refer to a circumstance which is beyond the control of the party invoking the aid of the section for condonation of delay. A genuine or a good cause or a cause which is beyond the control of a party or a cause, which is unavoidable despite care and caution, would amount to "sufficient cause". The test would be whether the cause of delay could have been avoided by the party by exercising due care and attention, in other words, whether it is a bona fide cause, not tainted by wilful negligence or carelessness.

7. In the instant case the Government Department concerned acted diligently in applying to the copying agency for obtaining the certified copy well within time and after its delivery to them, the machinery was set in motion for filing the revision petition. The photo copy attached with the application under section 5 of the Limitation Act for condonation of delay (C.M. No. l of 1995) at page 84 (Annexure "A") will show that matter was sent to the Advocate- General, by the Government of the Punjab Solicitors Department on 20‑4‑1995, whereby the Advocate‑General, Punjab was directed to file the appeal or revision petition before the High Court. However, the learned Advocate General, Punjab intimated to the Solicitor, Government of the Punjab vide Annexure "B" that it was not a fit case for filing an appeal or revision whereupon the matter was again taken up by the Government Department concerned which preferred to file this revision petition. In such a situation, it could not be successfully urged that the petitioners were indolent or they had slept over the issue instead of moving in right direction. On the contrary it appears that the department concerned acted diligently and hotly pursued the matter. The delay, therefore, occurring in filing the revision petition is not crucial so as to dismiss this petition on account of being time‑barred. The petition under section 5 of the Limitation Act is, therefore, allowed and the delay in filing of revision petition is condoned.

8. Now I would like to discuss the case on merits. The petitioners have based their claim on the land in question, on the ground that it was given to them for aforestation prior to its allotment to the predecessor‑in‑interest of the respondents. In this regard, the respondents had relied upon the documents i.e. Exh.D.l to Exh.D.13, which were brought on record subject to objection, from the other side. These documents were produced to show that the land in question was in possession of the petitioners and that they were the bona fide purchasers for valuable consideration.

9. Conversely the respondents based their case for proprietary right in the disputed land having been permanently transferred to them vide R.L. 2 Exh.P

2. It was contended that since the property had been permanently settled upon the predecessor‑in‑interest of the respondents, therefore, it was not available for any further alienation and as such the subsequent alienation in favour of the petitioners was without any legal effect. Reliance was placed on:‑‑ (i) Mst. Sakina Bibi and another v. Manila and 2 others reported as PLD 1977 Lah. 202, (ii) Sabir Ali v. Deputy Commissioner and Settlement Commissioner, Sanghar and 2 others reported as 1983 CLC 255, (iii) Muhammad Hassan and another v. Settlement Commissioner (Lands), Khairpur and 4 others reported as PLD 1983 Kar. 353, (iv) Sher Afzal Khan and others v. Haji Razi Abdullah and others reported as 1984 SCMR 228, (v) Nawab Din and another v. Shabbir Hussain and others reported as 1994 SCMR 553.

10. Another point was raised that a revision petition against the concurrent finding of the Courts below cannot be entertained for which reliance was placed on: (i) Haji Muhammad Zaman v. Zafar Ali Khan and others reported as PLD 1986 SC 88, (ii) Irshad Hussain v. Ijaz Hussain and others reported as PLD 1994 SC 326, (iii) Haji Muhammad Din v. Malik Muhammad Abdullah reported in PLD 1994 SC 291.

11. The authorities cited above lay down a principle that concurrent finding of the Courts below should not be normally disturbed provided their orders are within the four corners of law and there is no patent legal error clogging the course of justice. In the instant case, the learned Courts below did not advert their attention to the fact that the documents of important nature Exh.D.1 to Exh.D.13 were produced by the petitioners/defendants, but those were taken on record under objections to their admissibility. It is clear that while taking those documents on record, the learned trial Court did not spell out as to what objections were raised; how those were answered by the other side; and as to what was decision thereon. It is the duty of the learned. Judge admitting the evidence on record, to record objection if any, reply thereto and the decision thereon before it is made part and parcel of the judicial record. In this context, reference to Article 131 read with Article 162 of Qanun‑e‑Shahadat Order, 1984 may be made with advantage. In the instant case, the learned trial Judge ignored this aspect and admitted the documents under objections, the nature of which was never determined nor the same were disposed of till the time of impugned judgment. It is evident that the documentary evidence has to be proved under Chapter V of Qanun‑e‑Shahadat 1984, but in the instant case since the documents remained under undefined and undecided objections, therefore, the proper evidence could not be examined at the trial thereby causing prejudice to the petitioners resulting in to miscarriage of justice. I am also conscious of the provisions contained in Article 162. of the Qanun‑e‑Shahdat 1984 whereby improper admission and rejection of evidence only will not advance a good reason for de novo trial and the Court may proceed to discuss evidence already on record if the case can be finally decided without causing prejudice to any side. However, as I have already stated above that the documentary evidence in the instant case wa7ss brought on record, but had been disbelieved by the learned trial Court on the ground that the same has not been proved, in accordance with law. Since the objections remained pending throughout the trial till the decision of the case, therefore, the parties were misled not to examine relevant evidence to prove these documents out of which some per se were admissible. Had the objections been decided at the time when the same were raised it would have been possible for the parties to call for such witnesses who could prove those documents if so required by law. However, since the objections remained alive throughout, therefore, the petitioners/defendants evidence was shut out by implication to call for the evidence to prove such documents in accordance with law. Since precious rights of both the parties are involved, therefore, it would be just and fair if an opportunity is provided to both of them to examine proper evidence for which retrial order would be sine qua non. The judgments of the Courts below suffer from patent illegality and improper exercise of jurisdiction to rely on evidence, the admissibility of which was not decided in accordance with law as pointed out above. This petition is accordingly accepted, judgments of the Courts below are set aside and the case is remanded to the learned trial Court with a direction to hold the trial afresh on the issues already framed in the case. Since it has become fairly an old matter, therefore, a time period of six months is fixed for disposal of the suit in the Court below. The parties are directed to appear before the learned trial Court on 6‑5‑1996. A.A./P‑4/L Case remanded.