P L D 1968 Lahore 1106 (PLP)

SARDAR MUHAMMAD IQBAL, J.‑

House No. AA/348, Mohalla Pir Hara, Rawalpindi, originally belonging to Gurmukh Singh and Mst. Bindra Wand, was purchased by Abdur Rahman, peti tioner, through a registered sale‑deed on the 12th of April 1947, for Rs. 8,000.00. The payment admittedly was made before the Sub‑Registrar. He applied to the Deputy Custodian of Evacuee Property for confirmation of sale under section 20 of the Pakistan (Administration of Evacuee Property) Act (XII of 1957). Since the application was not made within the prescribed period of limitation, the petitioner applied under section 5 of the Limitation Act for the condonation of the delay. The Deputy Custodian condoned the delay and held that the transaction of sale was entered into in good faith and was for an adequate consideration. The value of the subject‑matter being more than Rs. 5,000.00 he sent the case for confirmation to the Additional Custodian. The Additional Custodian by his order dated the 15th of November 1960, agreed with the Deputy Custodian that it was a bona fide transaction for an adequate consideration, but refused to confirm the transaction on the ground of limitation. He instead created a charge for Rs. 8,000.00 in favour of the petitioner. The Custodian dismissed the revision petition of the petitioner. This is a petition under clause (4) of Article 2 of the Laws (Continuance in Force) Order, 1958, for the issuance of a writ of certiorari, mandamus or any other appropriate writ or direction to quash the orders of the Additional Custodian and the Custodian of Evacuee Property.

2. Section 16 of the Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949), and on its repeal section 20 of Act XII of 1957, contained provision for confirmation of sale, relevant portion of which reads: "(1) No creation or transfer of any right or interest in or encumbrance upon any property made in any manner whatsoever on or after the first day of March 1947, by or on behalf of an evacuee, or by or on behalf of a person who has or may hereafter become an evacuee after the date of such creation or transfer, shall be effective so as to confer any right or remedy on any party thereto or on any person claiming under any such party, unless it is confirmed by the Custodian. (2) An application for confirmation of such creation of a right or encumbrance or transfer as aforesaid may be made to the Custodian within the prescribed period by any party thereto, or by any person claim ing under or lawfully authorised by such party." The period of limitation for making an application for confirmation is prescribed in sub‑rule (2) of rule 12 of the Administration of Evacuee Property Rules, 1950. It is sixty days from the date of publication of the Rules which were published in the Gazette of Pakistan dated the 25th of August 1950. It is further provided in rule 17‑A of the Rules aforesaid that the provisions of section 5 of the Limitation Act shall apply, so far as may be, in computing the period of limitation prescribed in these Rules. The learned Deputy Custodian noticed the grounds which were taken up by the petitioner for invoking the provisions of section 5, viz. that he could not file the petition earlier as he was not aware of the requirements of the la v due to his illiteracy and was under a bona fide impression that after the registration of the sale‑deed there was nothing more to be done, and condoned the delay by observing: "since the appli cation is genuine, I extend the limitation under section 5 of the Limitation Act". The Additional Custodian in dismissing the application as barred by limitation observed : " the only ground which the petitioner has given for extension of the time under section 5 of the Limitation Act is that he is an illiterate and. was not aware of the law, which required the confirmation of the transaction. Ignorance of law is no excuse. In any case, the Custodian has ruled in Reference No. 808 of 1966, Hafiz Dost Muhammad v. R. A. that the applications made after 1955, should be summarily rejected unless there is a special reason for extending the period of limitation. I have no ground to ignore the ruling. I, therefore, hold that the application under section 20 of the Pakistan (Administration of Evacuee Property) Act (XII of 1957) has to be dismissed as barred by time." The Custodian in dismissing the revision petition of the petitioner observed: "As the reasons given by the petitioner for not filing the application within the prescribed period of 30 days were not sufficient, the Additional Custodian was justified in refusing to confirm the transaction of sale."

3. The petitioner based his application under section 5 of the Limitation Act for condonation of delay on the grounds (a) that he had purchased the property through a registered sale deed, dated the 12th of April 1947 which was a date much prior to the 14th of August 1947 (when a homeland for Muslims came into existence in the form of Pakistan in the sub‑continent of undivided India) on making payment of the entire amount of eight thousand rupees before the Sub‑Registrar (b) that he thought that the registration of the transaction was sufficient and no further formality was required; and (c) that he was an illiterate person, and, therefore, ignorance of law on his part was excusable.

4. The learned Additional Custodian did not refer to the grounds taken up by the petitioner for condonation of delay. He casually observed: " Ignorance of law is no excuse " and refused to condone the delay on the basis of the ruling of the Custodian in Reference No. 808 of 1960. The period o limitation prescribed by the rules was sixty days, but the delay could be condoned under rule 17‑A read with section 5 of the Limitation Act. Section 5 of the Limitation Act does not in any way restrict the period which may be condoned. The Custodian by his order in Reference No. 808 of 1960 had further fixed a period of limitation up to 1955 and if this was to be applied in all cases the position of law In that case would be (a) that the period for submitting the applications for confirmation is sixty days (b) that the delay may be condoned under rule 17‑A if sufficient ground was made out within the meaning of section 5 of the Limi tation Act and (c) that the delay should not be condoned after 1955 unless there was a "special reason" for extending the limitation. The Custodian has not explained the difference which he or his subordinates could take in view between the words "sufficient grounds" as used in section 5 of the Limitation Act and the words " special reason" which he mentioned in his order. If "special reason" means something different from "sufficient grounds", the order of the Custodian would be in the form of a legislation, restrictive of section 5 of the Limi tation Act, which, we have no doubt, it was not competent for him to do. Once it was provided by rules that section 5 of the Limitation Act was applicable, the section was to be given effect to without any limitation imposed by the Custodian. The Custodian has also not given any reason or justifica tion for fixing arbitrarily the year 1955 as the date for limiting the operation of section

5. The order of the Custodian in Reference No. 803 of 1960, in the circumstances, was, at best, applicable only to the facts of that case and if it was intended to be given effect to in other cases arising before him or any of his subordinates, the decision is clearly without lawful authority and of no legal consequence. The Additional Custodian, therefore, in having acted on the observations of the learned Custodian has failed to exercise jurisdiction which otherwise vested in him to consider the application presented under section 5 of the Limitation Act and to decide it on its own merits.

5. Before parting with the case, we may deal with the observations of the learned Additional Custodian, viz. "Ignorance of law is no excuse." It is well established that a mere mistake or ignorance of law is not per se a sufficient ground for asking the Court to exercise its discretion under section 5 of the Act. Ignorance of law coupled with other circumstances can in certain cases be a sufficient ground for condoning delay under section 5 of the Limitation Act. The petitioner did not seek condonation of delay only on account of his ignorance of law. He advanced other reasons also. In Karishna Mohan Ghosh v. Surapati Banerjee and others (A I R 1925 Cal. 684) where the appellant was an ignorant milkman without any previous experience of litigation and pleaded ignorance of his duty to substitute the legal representative of the deceased respondent though he was warned of the respondent's death, it was held that in the circumstances of the case, the delay was bona fide and that sufficient cause was shown within the meaning of section 5 of the Limitation Act. In Hurro Chunder Roy v. Surna Moyel (I L R 13 Cal. 266) it was observed that ignorance of law on the part of the appellant about the forum of appeal was a sufficient cause to grant extension under section

5. The observations in Gangaparasad Raj Ram v. Mt. Banaspad (A I R 1936 Nag. 246) are that this rule is subject to qualifications that there must be no negligence, no inaction and no want of good faith. In Muhammad Hassan‑ud Din v. Saif Ali (A I R 1924 Lah. 41) it was ruled that the ignorance of the appellant of the law it was also to file a copy of the judgment of the Court of first appeal with the memorandum of appeal was a sufficient ground for condoning delay in the presentation of appeal. In Bhagwan Das v. Tikaya Ram (A I R 1933 Lah. 264) the ignorance of the appellant as to the court‑fee to be paid on memorandum of appeal was considered a sufficient ground for condoning the delay in making up the deficiency of the Court‑fee. The lawyers are supposed to know law and in Rajendra Bahadur v. Bajeshawar Bali (AIR 1937 P C 276) it was held that a mistaken advice given by a legal practitioner may, in the circumstances of a particular case give rise to sufficient cause within the section. Thus, ignorance of law per se may not be a sufficient reason for condoning the delay, but if it is accompanied by circumstances which do not show want of good v faith or negligence on the part of the person invoking the application of section 5 of the Limitation Act, it may in the circumstances of a particular case furnish a sufficient ground for condoning delay.

6. The petitioner based his case for condonation of delay on the grounds that he was an illiterate person and being conscious of the fact that it was a genuine transaction, having been completed through a registered‑deed dated the 12th of April 1947 at a time when factually Pakistan had not come into existence, he thought that he had acquired a valid title ; and that if he did not apply for the confirmation of the sale transaction, it was due to his ignorance of legal provisions, and that the delay was not intentional or mala fide, but it was caused due to the peculiar circumstances of the case. The Deputy Custodian of Evacuee Property in condoning delay obviously took notice of these facts. The Deputy Custodian also held in emphatic terms that the transaction was a genuine sale for adequate consideration. The Additional Custodian in unequivocal terms affirmed the Deputy Custodian's view about the genuineness of the transaction and that it was for adequate consideration. The Custodian accepted the recommendation of the Additional Custodian for creating a charge of Rs. 8,000.00 in favour of the petitioner which shows unmistakably that the Custodian was also of the same view. It is, therefore, inconceivable that but for a genuine mistake engendered in good faith, the petitioner, if he had been aware of law as to confirmation, should not have applied for the confirmation. The Additional Custodian and the Custodian did not advert to these facts, and the failure on their part to do so, shows that they have not applied their mind to the D provisions of section 5 of the Limitation Act; and their orders suffer from an infirmity which renders them as without lawful authority and of no legal consequence.

7. The petition his accepted, the orders of the Custodian and the Additional Custodian are declared as without lawful authority. The result is that the case of the petitioner for the confirmation of the order of the Deputy Custodian dated the 15th of September 1960 shall be deemed to be pending before the Additional Custodian, who will dispose of the same in accordance with law. There shall be no order as to costs. A.E. Petition accepted.