2002 PLP 1209 (MLD)

MUHAMMAD YUNUS SURAKHVI, J.‑‑‑This appeal, by way of leave of the Court, has been directed against the judgment passed by the High Court on 6‑11‑2000, whereby the writ petition filed by the respondent herein was accepted and he was held entitled to the medical facilities as Professor in the University of Azad Jammu and Kashmir and also as a retired officer both at hospital and at his residence.

2. The necessary facts, giving rise to the present appeal, are that the respondent was an Associate Professor in Grade B‑20 in the University of Azad Jammu and Kashmir and got retirement. During his service in the month of August, 1994, the respondent had a heart problem and remained under treatment of doctor nominated by the University who referred him to Armed Forces Institute of Cardiology (hereinafter to be referred as A.F.I.C.) Rawalpindi for further treatment. The University accorded necessary sanction for the treatment of respondent from A.F.I.C. where he underwent a number of tests. The doctor of A.F.I.C. continued the treatment of respondent. The University of Azad Jammu and Kashmir initially paid some amount to respondent for medical treatment but from 1995 to 1999 did not make any payment for the expenses incurred by respondent on medical treatment and purchasing the medicines etc. The respondent being entitled submitted medical bills to the University. It was further disclosed that from 1995 to 1999 the respondent spent Rs.1,17,689.57 for the purpose of purchasing medicines and other expenses incurred on medical tests. The aforesaid amount was claimed through bills submitted by respondent to the University but it refused to make the payment. The respondent having been illegally refused the payment, as such, was constrained to file a writ petition which, as stated earlier, was accepted by the High Court vide its impugned order, dated 6‑11‑2000.

3. It was observed by the High Court that the respondent is entitled to the medical facilities as Professor in the University of Azad Jammu and Kashmir and also as a retired officer both at hospital and at his residence. It was directed that the Vice‑Chancellor shall make payment to the petitioner (respondent herein) at all the bills submitted by him in this regard and the respondents (appellants herein) shall make payment in future of all such bills to be submitted. It is the aforesaid order of the High Court, dated 6‑11‑2000 which is the subject‑matter of present appeal.

4. The petition for leave to appeal was admitted for regular hearing by this Court filed by the appellants herein vide order, dated 9‑4‑2001. During course of arguments at the stage of admission of petition for leave to appeal the learned counsel for respondent, Raja Muhammad Hanif Khan, duly raised an objection that the appeal filed by the appellants was barred by limitation and was instituted incompetently. The application for obtaining the copy of memorandum of appeal was moved by the appellants on 17‑1‑2001 when the period of limitation for filing the appeal had already expired.

5. Today the arguments were heard on appeal. Raja Muhammad Hanif Khan, the learned counsel respondent, repeated his preliminary objection and submitted that he has not only raised the objection at the time of admission of petition for leave to appeal but also in his concise statement to effect that the appeal filed by the appellants was barred by limitation as the application for obtaining the copy of memorandum of appeal was moved by the appellants on 17‑1‑2001 when the period of limitation for filing appeal (petition for leave to appeal) had already expired. The learned counsel stressed that the impugned judgment was announced by the High Court on 6‑11‑2000 and the petition for leave to appeal could have been filed within 60 days, i.e. on 5‑1‑2001, as such the appeal filed by the appellants being incompetent and barred by limitation was liable to be dismissed on this sole ground. The learned counsel also contended that even no application for condonation of delay was filed by the appellants explaining the delay caused in lodging the appeal. The learned counsel contended that had the appellants acted with due care and diligence, they should have filed the appeal (petition for leave to appeal) within the prescribed period of limitation.

6. On the other hand Sardar Muhammad Yasin Khan, the learned counsel for the appellants, contended that the appellants duly applied on 8‑11‑2000 for obtaining the copy of judgment of the High Court but the same was delivered to them on 27‑11‑2000; the period thus spent from 8‑I1‑2000 to 27‑11‑2000 if excluded from the period of limitation, the petition, for leave to appeal is well within the period of limitation. The learned counsel contended that the argument raised by the learned counsel for the respondent has no substance and is liable to be repelled.

7. After giving our due consideration to the arguments advanced at the Bar, it may be pointed out that perhaps Sardar Muhammad Yasin Khan, the learned counsel for the appellants, is under a misconception that the appeal before the Supreme Court should be accompanied only by the copy of judgment or the order appealed from. However, Order XIII, rules I and 3 of the AJ&K Supreme Court Rules provides as under: ‑‑

1. A petition for leave to appeal shall be lodged in this Court within sixty days of the judgment or order sought to be appealed from or as the case may be within thirty days from the date of the refusal or grant of certificate under section 42(11) of the Constitution by the High Court: Provided that the Court may for sufficient cause extend the time. 2. .......................................................................... 3. (1) The petitioner shall lodge at least tour copies of ‑‑‑ (i) his petition for special leave to appeal; (ii) the judgment and order sought to be appealed from together with grounds of appeal or application before the High Court and the order of the High Court refusing grant of certificate under section 42(11) of the Constitution, if any one copy each of which shall be certified to be correct; (iii) .............................................................. The plain reading of Order XIII, rule 3(1)(ii) provides that petition for leave to appeal shall be accompanied by the judgment and order sought to be appealed from together with the grounds of appeal or application before the High Court. This being a mandatory provision, its non compliance renders the appeal is incompetent. Perhaps after realizing the difficulty, Sardar Muhammad Yasin Khan, the learned counsel for the appellants, applied for obtaining the copy of writ petition filed before the High Court on 7‑11‑2000 but by that time the period of limitation for lodging the appeal (petition for leave to appeal) had already expired. It may also be highlighted that even no application was moved on behalf of the appellant for the condonation of delay as each and every day of delay has to be explained by the party who files a petition for leave to appeal beyond the period of limitation. In a case reported as Ch. Ajaib Hussain v. Mst. Zarin Akhter and 11 others (1999 YLR 1426) it was observed by Full Bench of this Court that the copy of grounds of application before the High Court is one of the mandatory documents. An application includes one under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. As held in number of cases the omission to file copy of application is a fatal defect for which the appeal has to be dismissed. It was also observed that from the perusal of language employed in rule 3 of Order XIII of the Azad Jammu and Kashmir Supreme Court Rules it becomes manifest that observance, of this rule is mandatory and failure of observance, unless condoned by sufficient cause shown, would render the petition incompetent. In an unreported case of this Court titled Ghulam Ahmed Khan v. Custodian of Evacuee Property and others (Civil P.L.A. No.91 of 2000, decided on 5‑7‑2000) it was observed that it is well‑settled principle of law that filing of attested copy of writ petition filed in the High Court is mandatory and under the Supreme Court Rules failure to do so renders the petition for leave to appeal as incompetent.

8. It would be useful to make reference to the reported case titled Allah Ditta and others v. Sher Ahmed Khan and others 1993 SCR 325, and Government of Pakistan and another v. Tariq Hussain Farooqi and others PLD 1984 SC (AJ&K) 47, wherein non‑compliance of Order XIII, rule 3 of Azad Jammu and Kashmir Supreme Court Rules has been' held fatal to the petition for leave to appeal. Out of the above‑referred cases, application for condonation of delay was refused in the latter case observing that there was no sufficient cause for condoning the delay because the case was one of the negligence. In the light of what has been stated above, without entering into the merits of the case, finding no force in this appeal, the same stands dismissed as being incompetent and barred by limitation. In the circumstances of the case, we pass no order as to costs. H.B.T./298/SC (AJ&K) Appeal dismissed.