2005 PLP 803 (MLD)

ABDUL SHAKOOR PARACHA, J.

Pakistan through the Secretary, Ministry of Defence, through this Regular First Appeal, filed under section 96, C.P.C., impugns the judgment and decree dated 24-1-1988, passed by Civil Judge, Rawalpindi, whereby the suit filed by respondent-plaintiff Mian Abdul Waheed was decreed for a sum of Rs.40,95,441 with costs of the suit. The sum of Rs.23,33,862, out of the decretal sum of Rs.40,95,441 was actually due to the plaintiff from the defendant, whereas sum of Rs.17,61,579 was decreed by way of damages therefore, the interest at the rate of 14 per cent was decreed on the actually due amount from the date of suit till realization while on the sum of Rs.17,61,579 it was ordered that the defendant-appellant shall pay interest at the rate of 14 per cent from the date of decree till realization.

2. The appeal, prima facie, appears to be barred by limitation. Article 156 of the Limitation Act prescribes a period of 90 days to file an appeal under section 96 Civil Procedure Code (V of 1908) in the High Court from the date of the decree or order. Vide order dated 30-9-1989 of this Court the appeal was admitted to regular hearing subject to examination of question of limitation at the hearing of the appeal. On the record, there is an application (C.M. No.670-C/88) for condonation of delay, but on 9-10-2003 when the appeal came up for hearing before the Division Bench, Federal Counsel for the appellant specifically argued during the course of submissions that some delinquent officials of the Department have been proceeded against for deliberate misconduct in filing the belated appeal. But, as the said ground did not find mention in the application, already on the record, the learned Federal Counsel wanted to file second application for condonation of delay with necessary documents to support his contention. Consequently, second application (C.M. No.713-C of 2003) was filed. Both these applications are being disposed of through this order.

3. In the first application (C.M. No.670-C of 1988) it is stated that after obtaining the certified true copies of the relevant documents the petitioner-appellant had to obtain sanction from the higher authorities and also approval from the Justice Division sanction of money for meeting the expenses was also to be obtained; all these matters took time because the Government Department had their own administrative and procedural difficulties; the completion of all these formalities took some time and the matter was delayed by 106 days. It was further stated that the delay in filing the appeal was neither intentional nor wilful or deliberate.

4. In the second application (C.M. No.713-C of 2003) by reproducing the grounds sated in the previous application it was further stated that upon query by the Standing Counsel's office that the Department should hold an inquiry for fixing the responsibility of delay in filing the appeal, the Department, i.e. DW&CE (Army) GHQ, Rawalpindi held an inquiry under the orders of Brig. Muhammad Arbi Khan, DW&CE (Army) GHQ, Rawalpindi and the findings had already been placed on the record of the appeal and in view of the findings of the Court of inquiry the disciplinary action was recommended to be taken against persons responsible.

5. Before us, the learned Deputy Attorney General on the strength of the case reported as Government of Balochistan through Secretary Member, Board of Revenue and another v. Ghulam Muhammad and 4 others (2001 SCMR 19) contends that when complete record of the case required to be submitted before the Court along with the proceedings despite repeated inquiries requests made by the office of the Deputy Attorney General Standing Counsel was not provided, resultantly the appeal became time barred; the impugned judgment and decree was void ab intio and the appellant is entitled for condonation of delay. Further contends that a sum of Rs.17,61,579 could have not been decreed by the Court through the impugned judgment because the same was never prayed for in the plaint of the suit filed by the present respondent. Reliance is placed on the case reported as Haji Abdullah and 10 others v. Yahya Bakhtiar (PLD 2001 SC 158). Adds that this Court in the interest of justice can condone the delay of 106 days in filing the appeal. To substantiate his contention he places reliance on the case reported as Mst. Allan Bibi v. Muhammad Iqbal alias Bala (2003 SCMR 1001) wherein the petition for leave to appeal was barred by 258 days, but in the interest of justice the case was decided on merits. Finally, he argues that in the judgment and decree it was obligatory for the trial Court to specify the time within which the decree was to be satisfied as required under section 82, C.P.C.

6. The learned counsel for the respondent contends that the Court which awarded the decree had the jurisdiction to adjudicate upon the suit and grant the decree therefore, the decree is not void; each day of delay has to be explained by the appellant in the civil matters and the Government is not entitled to any preferential treatment as to the ordinary citizens; no explanation has been given to condone the delay; the case of Government of Balochistan (2001 SCMR 19) is distinguishable on facts and is not applicable to the facts and circumstances of the present case; in presence of the first application (C.M. No.670-C of 1988) for condonation of delay second application on the same subject (C.M. No.713-C of 2003) was not maintainable; the application under section 5 of the Limitation Act can be placed along with the appeal but not in the already pending appeal.

7. We have considered the arguments of the learned counsel for the parties and perused the record with their assistance. The impugned judgment and decree was passed on 24-1-1988. Firstly, the application to supply the copy of the judgment and decree was made vide diary No.2459 on 10-2-1988 with a delay of 16 days. The copies were made ready and supplied the same day, i.e., 10-2-1988. The case of the appellant seeking condonation of delay is that after obtaining the certified true copies of the relevant documents the appellant had to obtain sanction from the higher authorities and also approval from the Justice Division, but not a single document has been appended with the appeal to show that correspondence was made by the appellant for obtaining sanction from the higher authorities and approval from the Justice Division. It is further stated that sanction of money for meeting expenses was also to be obtained. This contention is also not substantiated by any document showing that any letter was written to the Justice Division for obtaining sanction of money for meeting the expenses. The record is also silent that how much time it took to complete the formalities of obtaining sanction from the higher authorities, approval from the Justice Division and sanction of the money. Simply stating that completion of formalities took some time and the matter was delayed by 106 days cannot be considered as sufficient ground to condone the delay. The case of Government of Balochistan (2001 SCMR 19) relied upon by the learned Deputy Attorney General is not helpful to the appellant, firstly because in the said case the petition filed before the Hon'ble Supreme Court was beyond limitation, basically due to non-supply of complete record to the Advocate-on-Record to be filed with the petition despite repeated enquiries/requests made by her through phones to the concerned authorities; secondly, the impugned order was a void order for the reason that private respondents never prayed for compensation of the land in dispute, but the learned Judge in Chambers of the High Court quoting the reported judgment PLD 1978 SC 220 issued a direction to pay them the total sale price. It was observed by the Hon'ble Supreme Court that in the said judgment the High Court had exercised its inherent jurisdiction under section 151, C.P.C. to shorten the litigation. In the instant case seeking condonation of delay the judgment and decree has been passed by the Court of competent jurisdiction so it was not void.

8. In the case reported as Custodian of Enemy Property v. Hoshang M. Dastur and others (1979 SCMR 191) it has been ruled that, "Petition for special leave to appeal in civil proceedings--To be lodged within sixty days of judgment appealed against

Court, however, may extend time for sufficient cause petitioner not showing due diligence in filing petition and wasting most of precious time in routine in repeatedly writing to law Division asking them to reconsider their advice as formerly tendered

Petitioner failing to explain long and inordinate delay of at least seven months in filing petition. No sufficient cause, held, made out for condonation of delay." In the case of Province of West Pakistan, Lahore v. Mian Noor Ahmad and others (1975 SCMR 91) while interpreting the section 5 of the Limitation Act (IX of 1908), the Hon'ble Supreme Court ruled that the Government was not entitled to any preferential treatment as compared to ordinary citizens.

9. The appellant has placed on record the findings of the Court of Inquiry dated 22-8-1989 against the persons who were responsible for delay in filing the instant RFA. According to the findings and recommendations of the Court of Inquiry, it was recommended that disciplinary action against certain officials be taken. This finding of the Court of Inquiry against the persons who were responsible for delay does not make it a case of condonation of delay of the each day in filing the appeal. In similar circumstances, in the case reported as Chairman/ Secretary, Pakistan Railways. Ministry of Railways, Government of Pakistan, Islamabad and others v. Muhammad Sharif Javaid Warsi (PLD 2003 SC 6), where certain Government official was found responsible for delay in filing the appeal, the Honourable Supreme Court holding that no preferential treatment is to be offered to Government Department qua the civil litigation declined to condone the delay and took serious notice of the conduct of Government official and directed that the officers of the Government Department who were responsible for causing delay in instituting proceedings before different Courts should be penalized.

10. Section 82 C.P.C. does not apply to this case as this section is further extension of the principle incorporated in section 80 C.P.C. The object of this section is to allow further chance to the Government or the Public Offices to satisfy the decrees before the order of execution against them is passed. The words "where the decree is against the Government or against a public officer in respect of any such act as aforesaid" appearing in section 82 C.P.C. are of great importance for this case. Section 80 lays down that the suit may be instituted against the Government or against a public officer, in respect of any act purporting to be done by such public officer in his official capacity, after the expiration of two months next after notice in writing has been delivered to or left at the office. In the present case, decree has been awarded to the respondent in pursuance of the contract, therefore, neither section 80 nor 82 of the C.P.C. would apply here. For what has been discussed above, both the applications (C.M. Nos.670-C of 1988 and 713-C of 2003) are dismissed. The appeal having been filed with a delay of 106 days is barred by time and is not properly instituted. The same is, therefore, also dismissed. M.H./P-57/L Appeal dismissed.