1994 PLP 2315 (MLD)

This petition is directed against the orders dated 28th June, 1993 and 16th October, 1993, passed by Qazi Kharan and Majlis-e-Shoora, Kalat (Appellate Court under the provisions of Dastoor-ul-Amal Diwani Kalat) respectively, as well as against the order dated 3rd February, 1994, passed by the Qazi, in Execution Application. Alongwith the Memo. of Revision, application under section 5 of the Limitation Act was also filed seeking condonation of delay in filing the petition. The -learned counsel for respondent, Mr. M.S. Rukhshani, filed rejoinder to the application and contended that question of limitation being important in its nature be. decided before considering the merits of the petition. According to him, revision against the order of Majlis-e-Shoora, should have been filed on or before 16th January, 1994, but it has been filed on 8th March, 1994. Although application has been moved wherein indulgence of this Court has been solicited to condone the delay but as section 5 of the Limitation Act has not been made applicable on the provisions of section 115, C.P.C., therefore, time cannot be enlarged. Moreover', no sufficient cause has been disclosed in the application for the condonation of delay, thus on merits as well, it deserves dismissal. Learned counsel further emphasised that Government Functionaries in matters relating to limitation are not entitled for any special treatment and their case is to be treated at par with an ordinary litigant. On the other hand Mr. Yakub Khan Yousafzai, learned Advocate General, urged that section 29(2) of the Limitation Act is not attracted on the proceedings initiated under any provision of Civil Procedure Code because the Limitation Act as a whole including section 5 would be applicable as Civil Procedure Code is neither a special or local law, but is a General law, which has been promulgated to regularize the procedure of Civil Courts, thus in such view of the matter, application under section 5 of the Limitation Act has been competently moved, which may be allowed, keeping in view the peculiar circumstances of the case, which concern to a piece of land located adjacent to the Government High School, Kharan, on which the respondent intends to make encroachment and when authorities deterred him, not to do so, he instituted a baseless and false suit. Learned Advocate-General in support of his plea placed reliance on PLD 1970 Lahore 6, PLD 1973 Quetta 35, PLD 1982 Lahore 239, AIR 1961 Madhya Pradesh 75 and AIR 1952 Madras

186. I have heard the learned counsel for parties at considerable length and also perused the relevant provisions of Civil Procedure Code as well as the Limitation Act. A perusal of section 115, C.P.C. reveals that the legislature has determined period of ninety days for filing revision before the High Court. It may be noted that prior to amendment by means of Act, VI of 1992, no limitation was prescribed under section 115, C.P.C., for invoking the revisional jurisdiction and in absence of such period the Superior Courts from time to time, emphasised that ordinarily the petition should be preferred with a reasonable time, but in view of amendment, it has become obligatory upon a party approaching the Court to institute proceedings within the stipulated period. As section 115, C.P.C. has laid down the period for filing a revision, therefore, for the purpose of section 29(2) of the Limitation Act. It would be a special law and unless the provision of section 5 of the Limitation Act specifically are not made, applicable. Application to condone the delay cannot be entertained. The case-law relied upon by the learned Advocate-General, Balochistan also deals regarding the same principle. Now turning to the merits of the application, it would be expedient to reproduce hereinbelow, para. 2 therefrom to determine, if at all a sufficient cause has been disclosed seeking condonation of delay in filing the revision, without being prejudiced from the above conclusion:

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2. That with regard to order dated 16-10-1993, it is submitted that copy of the impugned judgment was obtained on 28-11-1993 and thereafter the matter was referred to the Government of Balochistan for the grant of sanction of file the petition, in hand. As-soon as the sanction was obtained, the matter was referred to the office of the Advocate-General, Balochistan and after procuring the necessary. documents, the petition has been filed without any loss of time." To my mind the reasons set forth absolutely are not sufficient to show indulgence on the point of limitation. More particularly with regard to the fact that judgment was announced by Majlis-e-Shoora on 16th October, 1993, whereas application was moved by the department for obtaining copy on 28th November, 1993 which was supplied on the same day. It is also worth to note that on 29th May, 1994, alongwith the Advocate-General, Mr. Amjad Malik, Advocate also appeared and on consulting the official file made statement that sanction for filing the petition was granted to the office of Advocate-General on 11th January, 1994, much before the expiry of the period of limitation. It is also important to note that while seeking condonation of delay under section 5 of the Limitation Act, it is obligatory upon the party, who claims such concession to explain the delay of each day with cogent reason in instituting the proceedings and in absence thereof, Court would not be obliged to condone the delay. Because a valuable right has been created in favour of opponent party which ordinarily cannot be taken away, on the pretext that Government department consumed time in obtaining necessary documents. It is also a well-known and settled principle of law that Government/Official Institutions are not entitled for any special indulgence in the cases, where time-barred proceedings have been instituted. Reference in this regard is made to 1981 SCMR

37. Relevant para. therefrom is reproduced hereinbelow:

"We do not share this view. The limitation for filing the petition for special leave to appeal in 60 days and even if the time from 14-3-1975, when the High Court passed the ex parte order against the petition, up to the date on which its copy was received in the Department, namely, 5-5-1975 is excluded the petition is still out of time by nearly 2 months. The time said to have been spent during which the various authorities were examining the matter with a view to decide whether an appeal would or should not be filed cannot be excused. This Court has repeatedly laid down that so far as the limitation is concerned, the Government cannot claim to be treated in any manner differently from an ordinary litigant. In fact, the Government enjoys unusual facilities for the preparation and conduct of their cases and its resources are much larger than those possessed by ordinary litigants, if in spite of these facilities the Government cannot comply with the requirement of law of limitation, then it is for it to take steps to have that law. See Province of East Pakistan v. Abdul Hamid Darji 1970 SCMR 558, The Deputy Director, Food, Lahore Region, Lahore etc. v. Syed Safdar Hussain Shah 1979 SCMR 45 and Custodian of Enemy Property v. Hoshang N. Dastur and others 1979 SCMR 191. " The above view has also been reiterated by Hon'ble Supreme Court in the case of Province of Balochistan v. Noor Muhammad and others (C.P.L.A. No. 50 of ~~ 1992). For the above discussion, I am convinced to hold that revision is liable to be dismissed being barred by time, without considering the merits of the case, leaving the parties to bear their own costs. A.A./481/Q Revision dismissed.