2002 PLP 1856 (MLD)

By this judgment I propose to dispose of this civil revision application filed under section 115, C.P.C. arising out of order dated 15‑1‑2002 passed in Civil Appeal No.106 of 2001 by the learned Vth Additional District Judge, Karachi West, whereby he allowed the application, filed by respondents‑appellants under section 5 of the Limitation Act condoning the delay in filing appeal on their behalf. The brief facts, giving rise to the filing of this civil revision application, as stated in its memo, are that the applicants‑respondents filed a Civil Suit No‑163 of 1999 in the Court of 1st Senior Civil Judge, Karachi West for declaration and injunction which was decreed by the learned trial Court in favour of the applicants‑respondents vide its judgment and decree dated 30‑4‑2001 against the respondents‑appellants. As against such judgment and decree respondents‑appellants preferred an appeal before the learned District Judge, Karachi West bearing Civil Appeal No. 106 of 2001 on 23‑10‑2001 with the delay of 67 days alongwith application under section 5 of the Limitation Act which was allowed by the learned Appellate Court vide order dated 15‑1‑2002 which has been impugned by the applicant‑respondent in this Civil Revision Application. I have heard Mr. Riaz Kadir Brohi, learned counsel appearing on behalf of the applicants‑respondent No. l and Mr. Tahawwar Ali Khan, learned counsel, appearing on behalf of the respondents‑appellant. It has been contended by the learned counsel for the applicants- respondents that the appeal was deliberately and wilfully filed with the delay though the respondents‑appellants had every opportunity to perform their duty and the time was within their control. It has, further been contended that the Sindh Local Government Ordinance XXVII of 2001 came in force on 14th August, 2001 describing and delegating the powers of civil servants and elected members of their exercise. It has, also, been contended that the application for condonation of delay had been filed with the motive to somehow confuse and misguide the learned Appellate Court and to obtain favourable order under colour. Furthermore, the letter dated 22‑10‑2001 is departmental letter not a Government Gazette notification. The Ordinance was promulgated much earlier started operating and functioning from 14th August, 2001. It has also, been contended that the District Coordination Officer was vested with power to issue such kind of authorization letter from 14th August. 2001 and the validity of letter from the contents spells that it is valid for 15 days which fact clearly indicates that the DCO had been issuing such kind of authorization from 14th August, 2001 which the respondents are purposely concealing for nefarious designs and purposes to somehow frustrate and defeat the ends of justice. He has relied upon the cases of Chief Settlement and Rehabilitation Commissioner and another v. Ghulam Ghaus (1974 SCMR 38), Commissioner of Income‑Tax v. Rais Pir Ahmed Khan (1981 SCMR 37) and Azad Government of the State o Jammu and Kashmir v. Ch. Muhammad Latif (PLD 1983 SC (AJ&K) 701 in support of his contentions. On the other hand, learned counsel appearing on behalf of the respondents‑appellants has contended that after creation of City District Government by virtue of SLGO 2001 since 14th August. 2001 no officer was authorized to sign the pleadings on behalf of City Government but on 22‑10‑2001 one officer namely Qurban Ali Jaffery was authorized to sign the pleadings and Vakalatnama on behalf of City District Government and the appeal was presented on 23‑10‑2001 without wasting a single day after issuance of authorization letter to the concerned officer as such there is negligence or wilful default on the part of respondents‑appellants. It has, further, been contended that the impugned order is quite legal, speaking one discussing all aspects of the case particularly the reason of delay and lawful and the same requires no interference by this Court so that the appeal may be disposed of on merits rather than to indulge mere technicalities. He has relied upon the cases of Saleh Shah v. The Sindh Industrial Trading Estates Limited and others (PLD 1962 (W.P.) Karachi 608) Siraj Din and another v. Muhammad Ishaq (1981 CLC 1740) and Muhammad Dawood and others v. The State (1986 SCMR 536) in support of his contentions. I have considered the arguments of both the learned counsel and also gone through the record. Admittedly, the Civil Appeal bearing No.106 of 2001 was filed on 23‑10‑2001 whereas the judgment in Suit No.163 of 1999 was pronounced on 30‑4‑2001. If the respondents‑appellants would have been vigilant the certified copy of the judgment passed in civil suit could be obtained during the month of May, 2001 and by the end of the said month the appeal could be filed but it is strange that the respondents appellants instead of applying for certified copy of the said judgment on the next day or a day thereafter, filed application, after six days whereafter again managed to get the fees estimated on 14‑7‑2001 i.e. after about 67 days and deposited the same on the same day but got the delivery of the copy on 22‑8‑2001 i.e. after thirty‑seven days and they filed appeal on 23‑10‑2001 that is too after the delay of 67 days taking the plea that during such, period no authorized person was available to sign such appeal because of promulgation of SLGO 2001 on 14th August, 2001. Computing the period from the date of applying for certified copy till the date of estimation of costs it comes to more than two months, which has not been explained sufficiently. Moreover, the period from the date of delivery of copy of the judgment up to filing of appeal has, though sufficiently explained according to the learned counsel for the respondents‑appellants, but in my view if the copy would have vigilantly, been obtained by using whole month of May, 2001, the appeal could have been field at least in the first week of June, 2001 when even the Elections for District Governments were not held and the question for existence of new set‑up, and non‑availability of authorized person to sign the pleadings could not be raised as before such elections Karachi Metropolitan Corporation did exist. This shows the negligence on the part of the respondents‑appellants as there is no explanation on record for the period, which was consumed to get the fees estimated as well as filing of application for certified copy after six days. It has become the practice of the Government Departments to t4 the Court matters lightly and taking leniency to respect of condonation for the period in filing appeals or petitions common. In my view in civil matters delay in filing appeals or petitions have to exceptional cases should be lightly condoned for a valuable right has accrued to the other pair y of which it cannot be deprived except for very substantial reasons. To make to Departments of Government exception to this rule would be placing a premium on the negligence and want of proper diligence in public offices. In the circumstances, I am convinced that the respondents appellants had deliberately and wilfully not filed the above appeal in time though they had every opportunity to perform their duty and the time was within their control. Resultantly, I accept t is civil revision, set aside the order dated 15‑1‑2002 passed by the learned Vth Additional District Judge, Karachi West and maintain the judgment and decree, dated 30‑4‑2001 passed by the 1st Senior Civil Judge, Karachi, West in Civil Suit No. 163 of 1999. Civil Revision Application No.25 of 2002 stands disposed of alongwith listed application. Q.M.H./M.A.K./M‑370/K Revision allowed.