1978 PLP 207 (SCMR)

DORAB PATEL J.‑The petitioner was a Sub‑Inspector in the Karachi Police, who was dismissed from service on 21‑9‑1959. He, therefore, filed a suit in 1962 in the District Court, Karachi for a declaration that his dismissal was illegal and void, and that he continued to be in service. As this suit was decreed, he ‑was re‑instated, but be was not paid his salary, therefore, although he had not sought any relief in this respect in his suit, ha went on filing execution applications. It is not necessary to refer to the details of this prolonged litigation and it is sufficient to state here that the execution proceedings instituted by the petitioner were dismissed. Therefore, he filed another suit for the recovery of the alleged arrears of salary due to him. This suit was filed in 1973 in the District Court, Karachi, and it came up for hearing before the learned District Judge. Meanwhile, however, Article 212 of the Constitution had ban amended and the Sind Service Tribunals Act, 1973 had come into force, therefore, the learned District Judge passed an order on 10‑7‑1974 that the suit had abated. And it is not irrelevant to point out here that the petitioner challenged even this order of the District Judge in a revision in the High Court which was dismissed in doe course. Meanwhile, although he was prosecuting his remedies in the Courts, be bad also filed an appeal on 5‑10-1974 before the Sind Civil Services Tribunals. In a very lengthy petition, he set out the history of his prolonged litigation with the respondents and sought in this appeal both declaratory relief about his claim to be in service and also pecuniary relief for the alleged arrears salary due to him. The petitioner informed us that the hearing of his appeal began before the Tribunal in 1975 and although the, appeal had been heard on Send Services several occasions on merits, on 25‑1‑1977, the Advocate‑General sprang a surprise on him by submitting that the appeal was time‑‑barred tinder section 6 of the Sind Services Tribunal Act, 1973. The petitioner thereupon filed an application for condoning his delay in filing his appeal aid also relied upon this Court's judgment is Syed Faiz Ali Shah v. Chief Administrator of Auqaf Lahore (PLD1974 S C 17). However, relying on this Court's judgment in Masud Ahmad v. Pakistan (PLD1976 S C195). the Tribunal held that the appeal was time- barred and dismissed it by its order dated 4-7‑1977. Hence this petition for leave. Mr. Rizvi who argued his cam in person did not dispute the fact that his appeal was hit by the rule laid down by this "Court in Masud Ahmad's case. He however, relied on the fact that the learned District Judge had passed an order on 10‑7‑1974 declaring that the suit bad abated and submitted that the period up to the date of this order should have bun condoned in view of section 6-A of the Sind Services Tribunal Act as it stood after its amendment by Act IX of 1974 on 24‑6‑1974. But the question whether the petitioner had made out sufficient cause for condoning his delay was a question of fact within the exclusive jurisdiction of the Tribunal and the petitioner ha not filed a copy of his application to condoning the delay. It is also not irrelevant to observe here that he is not a person unfamiliar with the law, as is apparent from the protracted litigation conducted by him, therefore, it cannot be said that the Tribunal had exercised its discretion capriciously or arbitrarily in refusing to condone the petitioner's delay. The petitioner than submitted that his prayer for condoning the delay in filing his appeal was supported by, the observations of this Court in Syed Faiz Ali Shah's case and as his further grievance war that this authority had not been examined by the Tribunal, we have examined it. The facts of this cam were that a Letters Patent Appeal had been admitted by the High Court, despite the office objection that it was time‑barred. However, when the appeal came up for hearing, it was dismissed on the ground that it was time‑barred. The appellant challenged thus order in an appeal in this Court and as the appeal was allowed, Mr. Rizvi submitted that this authority supported his can because as in the case cited his appeal had been admitted by the Tribunal without any noting that it was time‑barred. The argument is misconceived, because in allowing the appeal. Hamoodur Rahman, C. J., who pronounced the judgment of the Court observed : "In out view, since the order of the admitting Bench was susceptible of the interpretation that the delay, if may, had been condoned it could well have misled the appellant and his learned counsel into believing that the delay having been already condoned no further application for the condonation of the delay if any, was necessary. In the circumstances it was only fair that the Bench finally hearing the appeal should have, when raising this question suo motu, without any objection from the respondent, given an opportunity to the appellant to explain the delay." These observations would have helped Mr. Rizvi's case, if he had not been heard in support of his application for condoning the delay in filing his appeal. But not only was he heard on this question, he had also filed an application, therefore, the judgment is distinguishable on the fats and does not land any support to the petitioner's case. In the result no case has been made out for interfering with the Tribunal's finding that the appeal was time‑barred, therefore, this petition is dismissed. Petition dismissed.