2007 PLP 41 (SCMR)

RAJA FAYYAZ AHMED, J.

Through this petition, leave to appeal has been sought for by the petitioners/plaintiffs from a consolidated judgment, dated 15-8-2005 passed by the learned Single Judge in Chambers, High Court of Balochistan, Quetta, whereby Civil Revisions Nos.400 of 1996 and 121 of 1997 filed by respondent No.1, Government of Balochistan and respondent No.4, Hub Power Company Limited have been accepted and the judgment and decree dated 20-11-1996 passed by the Majlis-e-Shoora/First Appellate Court decreeing the suit of the petitioners in their favour, was set aside.

2. In the final round of litigation, the suit instituted by the petitioners and their mother (since dead), being Civil Suit No.22 of 1989 filed initially against respondents Nos.2 and 3 i.e. Collector, District Lasbella and Tehsildar Hub, Lasbella. for declaration and permanent injunction, in respect of the suit property in which subsequently the Government of Balochistan and Hub Power Company Limited were impleaded as defendants, was dismissed by the learned Qazi, Lasbella at Uthal vide judgment and decree that 13-9-1995, which was assailed by the petitioners in appeal before the learned Majlis-e-Shoora Khuzdar/ First Appellate Court. The learned Appellate Court vide judgment and decree, dated 20-11-1996 set aside the decree of the learned trial Court and decreed the suit in favour of the petitioners/plaintiff's by accepting their appeal, which was assailed separately by respondents Nos.1 and 4 separately in the above said civil revisions before the learned Single Judge of the High Court of Balochistan, Quetta. The revision petitions filed by the said respondents have been accepted by the common judgment, which has been impugned through the instant petition.

3. During pendency of this petition for leave to appeal, C.M.A. No.57/Q of 2006 was filed on 25-4-2006 on behalf of the petitioners by their learned Advocate-on-Record praying therein that due to inadvertence mistakenly instead of filing appeal, petition for leave to appeal was filed within the prescribed period of limitation, against the judgment impugned herein due to bona fide mistake and misconception of law, as well as; C.P.L.A. having been entertained by the office without any objection, so the delay in seeking for conversion of C.P.L.A. as a direct appeal deserves to be condoned.

4. The learned Advocate Supreme Court for the petitioners has been heard. It has mainly been argued that C.P.L.A. was filed against the impugned judgment within the prescribed period of limitation and the same was entertained without any objection by the office. According to the learned counsel under a bona fide error petition for leave to appeal was filed, although; appeal was directly competent against the impugned judgment, whereby the judgment and decree of the First Appellate Court being immediately below to the High Court was reversed, therefore, the delay in making the request for treating. the petition as direct appeal against the impugned judgment is condonable on the grounds urged in the miscellaneous application and the petitioners in the given circumstances of the case on account of the contributory factors may not, in the ends of justice be non-suited. The learned counsel in support of his contentions and to supplement his view-point has placed reliance on the reported judgments of this Court i.e. (1) Chairman, N.-W.F.P. Forest Development Corporation and others v. Khursheed Anwar Khan and others 1992 SCMR 1202 and (2) Taza Gul and others v. Hafiz Fazal Subhan 2006 SCMR 504.

5. The submissions put forth on behalf of the petitioners by their learned counsel in support of the civil miscellaneous application have been considered in the light of the above said cited case-law. Admittedly, vide impugned judgment, the decree of the First Appellate Court being immediately below to the High Court was set aside and thus, the same was amendable to appeal before this Court by filing direct appeal as the subject-matter of the dispute was not less than Rs.50,000 but instead, petition for leave to appeal was incompetently filed, which was entertained, as such, without any objection by the office. During pendency of this petition, the above said C.M.A. has been tiled on behalf of the petitioners requesting for condonation of the delay of 29 days for treating this petition as an appeal against the judgment impugned herein on the grounds noted above. In the case of Chairman, N.-W.F.P. Forest Development Corporation and others, this Court, while seized of the matter, observed that the petition for leave to appeal if treated as a direct appeal was time-barred and as a petition for leave to appeal was within time, by keeping in view the facts of the case concluded that error in filing the petition for leave to appeal instead of direct appeal seemed apparent on record, entertained the oral request of the counsel for the appellant converted the petition into appeal after hearing both the parties by holding that the question of limitation, thus, lost its significance. In the case of Taza Gul and others, it was held by this Court that instead of filing direct appeal, petition for leave to appeal was filed, the office did not raise any objection to the maintainability of the petition but after publication of the judgment of this Court in the case titled Muhammad Inayat v. Fateh Muhammad reported in 2003 SCMR 875, the petitioners in the said case filed application for converting the petition for leave into appeal under Article 185(2)(d)(e) of the Constitution of Islamic Republic of Pakistan, 1973, as well as; they also filed application for condonation of delay as direct appeal was barred by time. The Honourable Bench in the said case held that as the office had entertained the petition for leave to appeal without any exception, therefore, the petitioners could not be made to suffer on account of misconception of the law, confusion of the legal position in the minds of the members of the Bar for a long time. Accordingly, it was concluded that the petitioners were not guilty of negligence or recklessness in the matter of prosecuting their remedy before the Supreme Court and the case being of a bona fide error, as well as; sufficient cause was made out for exercise of discretion in favour of the petitioners for extension of time for filing direct appeal, accordingly, the petition for leave to appeal was converted into appeal and application was allowed.

6. The ratio of the above reported judgments, obviously for extension of time for conversion of petition for leave to appeal into direct appeal depended upon the factum of bona fide error and sufficient cause shown for exercise of the discretion in the matter of extension of time coupled with the contributory factor on the part of the office in entertaining the petition for leave to appeal instead of direct appeal without any objection or exception. It is thus, abundantly clear that entertaining the petition for leave to appeal though not maintainable and incompetently filed by the office without objection was not the sole factor and reason for condoning the delay for conversion of the petition into direct appeal but simultaneously the other factors and the circumstances of each case were taken due notice of and considered for condoning the delay in entertaining the request for conversion of the petition into direct appeal which as well depended upon showing of sufficient cause, bona fide error or misconception of law and confusion; recklessness and negligent conduct, if any; as the case may be.

7. The learned Advocate-on-Record in the case is a senior counsel, who without taking due notice of the fact that vide impugned judgment the decree of the learned First Appellate Court being immediately below to the High Court was set aside, and; the value of the subject matter of the dispute was admittedly not less than Rs.50,000 directly appealable to this Court under Article 185(2)(d)(e) of the Constitution but petition for leave to appeal was filed without being diligent about the above quoted provisions of the Constitution, and; always supposed to be within the notice and knowledge of the learned counsel of a long-standing at the Bar, hence; it could not be said or expected that the error in filing the petition for leave to appeal on his part was not negligent or reckless, therefore, the same could not be condoned lightly merely because the office entertained the petition for leave to appeal without objection. The sole responsibility for not availing the remedy of appeal as provided by the Constitution would not rest on the shoulders of the office, therefore, in such circumstances of the case, sufficient cause has to be shown for condonation of the delay, which occurred in making the request for conversion of the petition into direct appeal, completely lacking. The C.M.A. seeking for conversion of petition for leave to appeal, into direct appeal was filed on 25-4-2006 after an inordinate delay while this petition was filed on 21-10-2005, which therefore, seems, to be not a bona fide mistake, error or misconception with regard to the above quoted provisions of Article 185 of the Constitution except that due to negligent and reckless conduct instead of filing appeal, petition for leave to appeal was filed by not availing the permissible legal remedy against the impugned judgment, which conduct in our considered opinion is not condonable in view of the dictum laid down by this Court in the case of Zafar Iqbal Hameed Khan v. Ashiq Hussain and 2 others 2005 SCMR 1371 nor the tenure of lapse till the date of filing of the C.M.A. on the subject for conversion of the petition into direct appeal has been found to be condonable by enlarging the time for the purpose. The learned counsel also failed to make any submission with regard to the misconception of law which as urged in the C.M.A. resulted in filing the petition for leave to appeal.

8. Thus, in view of the above reasons, C.M.A. No.57/Q of 2006 is dismissed and consequently, Civil Petition No.111/Q of 2005 is dismissed being incompetent. M.H./G-25/SC???????????????????????????????????????????????????????????????????????? petition dismissed.