1987 PLP 1119 (SCMR)

(f) Constitution of Pakistan (1973) ‑‑‑Art. 1A9‑‑Constitutional petition‑‑ Laches‑‑Constitutional petition cannot be dismissed on ground of laches, without examining the dictates of justice in the claim of each party in addition to examination of law and jurisdictional points involved in the case.‑‑[Laches]. (g) Constitution of Pakistan (1973)‑ ‑‑‑Art. 199‑‑Limitation Act (IX of 1908), Art. 181‑‑Application of Art. 181, Limitation Act, 1908 to the filing of constitutional petition though not argued at the bar Supreme Court desired to examine the point in a proper case in view of argument raised in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others P L D 1970 S C

1. Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others P L D 1970 S C 1 ref. Raza A. Khan, Deputy Advocate‑General instructed by S. Safdar Hussain, Advocate‑ on‑Record for Appellant. Respondents Nos. 1 to 3 : Ex parte. M. Rafiq Awan, Advocate Supreme Court and M. Qasim Imam, Advocate‑on‑Record for Respondent No.4. Date of hearing: 11th April, 1987. MUHAMMAD AFZAL ZULLAH, J.‑‑ This appeal through leave of the Court is directed against judgment dated 23‑6‑1981 of the Peshawar High Court; whereby the appellants, constitutional petition arising out of an urban settlement matter, was dismissed, on ground of laches, without going into the merits of the case. According to the final order dated 8‑5‑1974 of the Settlement Commissioner, the building in dispute, an evacuee property in possession of the Postal Department of the Central Government as a Post Office since 1931, was sought to be transferred to the appellant department in 1963. A letter at page 1 of the paper‑book from Government of Pakistan to the Chief Settlement Commissioner (dated 12‑10‑1964) shows that sanction to transfer the building to the appellant under section 10 (2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, on the condition that it was not transferable to any person under the Schedule to the Act, was granted. There is evidence on record that correspondence took place also for payment of price. In the meanwhile, in an allegedly collusive proceedings one Afzal Hussain Gardezi obtained a transfer order which was set aside in appeal and the case was remanded for fresh decision. The building was then transferred to Muhammad Yaqoob respondent, a Jammu and Kashmir refugee, in 1970. He admittedly was not in possession thereof. The transfer was as a gesture of settlement free of cost. The appellant's revision was dismissed on 8‑5‑1974, despite the fact that in his pleadings mention was made of a prior transfer in its favour by virtue of section 10(2) of the Act. The appellant's writ petition was dismissed on 21‑1‑1976 on ground of laches alone. It may be mentioned that Abdul Qadir a vendee from the transferee, during the pendency of writ petition, was also impleaded as respondent in the proceedings before the High Court. Leave to appeal was granted in order to examine the points noted as follows: "It is argued that on the peculiar facts and circumstances of this case when direction of the Central Government under section 10 of the Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958, was in operation with effect from 8‑5‑1964! 12‑5‑1964, ‑‑ (As contained on pages 25‑26 of the printed paper book and copy whereof was endorsed to the Additional Settlement Commissioner, Peshawar) any transfer of the property in dispute to the respondent was a nullity and void ab initio. 'As regards laches in filing the writ petition, it is argued that the writ petition had been admitted to a regular hearing on 24‑2‑1977 without any reservation of the point of laches. The respondents filed no written statement but took up the plea of laches orally when the case was heard on 23‑6‑1981. It is submitted that the delay in filing the writ petition took place due to exchange of correspondence with various departments which was not in the control of the petitioner, and even otherwise the reference by the High Court to the dates on which copies etc. were received are not correct. As the points inter alia raised require consideration, we grant leave to appeal.' We have heard both the learned counsel at some length. There is considerable case‑law on the question of laches ranging from dismissal of a writ petition on ground of delay of few months to condonation of laches for over a decade. No hard and fast rules have been laid down in this behalf. There is no law of limitation which may directly apply to the institution of writ petitions and their dismissal on ground of limitation. Such position in this field of law would undoubtedly place any lawyer in a state of uncertainty what to talk of the litigant public. It would be rare that in ordinary practice such like delays would be met in the memorandum of writ petition as is the requirement regarding the statute of limitation; whereunder when the matter is beyond limitation an application under section 5 thereof is made of applicable. An occasion to meet the point of laches in writ petition arises when a specific plea is taken by the opposite‑party in a written statement. When no such plea is taken or when taken, adequate time and opportunity is not afforded to the writ petitioner to meet it, the High Court would not be justified in dismissing the writ petition on the assumption that no explanation is offered by the counsel arguing the case. This is what has happened in this case. The counsel was ordered to explain the delay only at the hearing of the writ petition. His failure to do so without having had enough time and opportunity to get instructions from the Government Departments concerned, could not be treated as a reason for dismissal of writ petition on ground of laches. The learned Deputy Attorney‑General pleaded with vehemence that no juridical principle could deprive the Government from placing reliance on legitimate departmental dealings, case processing, observance of rules and practices and justified delays involved therein, in explaining the two delays. He rightly argued that such condonation is different from exclusion of a time from period of limitation which is not applicable to cases of laches‑‑wherein even the rigours of rules of condonation of delay vis‑a‑vis a statute of limitation are not attracted. After hearing both the learned counsel on point of the delay which is divided into two periods of some months each (it should not have been lumped together as done by the High Court) we are satisfied that neither the period of the delay can be treated as laches nor was it without reasonable explanation. This appeal thus merits to be accepted on this ground alone. It needs to be emphasised that there is absolutely no justification to equate laches with statutory bar of limitation. While the former operates as a bar in equity, the latter operates as a legal bar to the grant of remedy. Thus, in the former, all the dictates of justice and equity and balance of legitimate rights are to be weighed; in the latter, subject to statutory relaxations in this behalf, nothing is left to the discretion of the Court‑‑ it is a harsh law. Thus, passage of time per se brings the Statute of limitation in operation, but the bar of laches does not deny the grant of right or slice the remedy unless the grant of relief, in addition to being delayed, must also perpetuate injustice to another party. It is also in this very context that the condonation of delay under section 5 of the Limitation Act will be on different harder considerations than those in a case of laches. For example, while it is essential to explain and condone the delay of each day vis‑a‑vis statutory limitation, there is no such strict requirement in cases of laches. It is necessary to mention here a peculiar feature of Government litigation. No doubt, it was observed in Province of East Pakistan v. Abdul Hamid Dariji 1970 S C M R 558 that in matter of condonation of delay under section 5 of the Limitation Act the Government will not be shown extra indulgence than an ordinary litigant and if so desired only an amendment o law was the way out. The further experience of nearly two decades after that judgment shows that the inability on the part of the Government to get such an amendment made, has been treated as an accepted and inviolable rule to refuse condonation of delay whenever the plea is raised of departmental delays; which are inherent in the procedures even if culpable negligence is not involved. A just and proper approach which has not prohibited by the rule in Abdul Hamid Darji's case, is to treat the request for condonation on its own merits like that of any other litigant; and not to shut out the plea on simple formula that it is mere departmental delay negligence; because the decision itself, does not lay down such an inflexible rule. The facts of that case and the condition that each case is to be seen on its own circumstances, cannot at all be ignored. It is well‑known that indiscriminate application of this decision has caused immense loss to the public exchequer wherein an innocent third party, namely, the tax‑payer in ultimate analysis, suffers the loss. This is besides those cases where delays are collusive so as to avoid dictates of justice and law. Hence, a departmental delay whenever put forward as a ground for condonation of delay requires consideration on its merits and rejected or accepted accordingly, as the case may be. In the case of laches, however, the principles of condonation would be totally different. It being in the field of equity, it will not be denied: where either the negligence is not culpable vis‑a‑vis the merits case; or, when there is no equity in favour of the party who would be the gainer in case the condonation is denied. It is also for the very same reason that bar of laches in equitable jurisdiction has rightly been equated with principle of estoppel and not the statutory bar of limitation. See Mst. Noor Jehan Begum v. Abdul Mapd Shaida and another Law Notes 1967 (N . U C.) S C 15‑‑Civil Review Petition No. K‑3 of 1967 in Civil Appeal No. K‑39 of 1965, decided on 14‑4‑1967. In the present case no question of estoppel arises. The change of position by the transferee was pendente lite. He cannot take any advantage of this principle either. And the writ petition could not be dismissed except on grounds of merits. The next aspect relates to the nature of the order impugned before the High Court in its writ jurisdiction. We agree that the mere fact that the order is void would not necessarily displace the bar of laches in ‑equitable jurisdiction. The rule is that if it is a just and proper order then notwithstanding it being otherwise void. It need not be set aside in writ jurisdiction, if the same was filed after inordinate delay. See S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1978 S C M R

367. On the other hand, if it is a void order and is also unjust and improper besides being illegal, the' High Court will have no hesitation in setting it aside despite the objection regarding laches. It is so because the High Court would then be acting on a still higher principle than that of laches that: injustice is not perpetuated with the blessings of the Court in its discretionary jurisdiction, as the discretion to dismiss a writ petition cannot be exercised in aid of injustice. In this case, if the High Court would have examined the foregoing features in the subject‑matter of the writ Petition the results would have been different. As a necessary corollary, therefore, it has to be laid down that a writ petition cannot be dismissed on ground of laches without examining the dictates of justice in the claim of each party his, of course, is in addition to examination of law and jurisdictional points involved in the case. Before parting with this judgment it needs to be observed the although the question of applicability of the Article 181 of the Limitation Act to the filing of writ petition has not been argued at the bar, it might nevertheless require examination in a proper case. It has been held by this Court in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others P L D 1970 S C 1, that such proceedings before the High Court are of civil nature and C . P. C . applies except when excluded. Whether similar argument cannot be raised regarding limitation might need examination. In the light of the foregoing discussion, this appeal is allowed, he impugned judgment is set aside and case is remanded to High Court for decision of the writ petition, on merits. There shall be no order as to costs. M.B.A./P‑10/S Appeal allowed.