P L D 2004 Karachi 143 (PLP)

We have carefully considered the contentions raised by the learned Advocates for the parties, the facts obtaining on record and the relevant law. First, we would like to examine the judgments on which the learned counsel for the appellants has placed reliance. In the case of Zubaida Begum (supra) the delay in filing second appeal was condoned by the High Court for the reason that according to the affidavit filed by the learned counsel the second appeal was not filed in time because of the reasons beyond his control. The Hon'ble Supreme Court refused to interfere with the discretionary jurisdiction of the High Court on the ground that the delay was condoned in legitimate exercise of discretionary jurisdiction. In the case of Syed Imran Raza Zaidi, the condonation of delay was sought on the ground of erroneous view of the departmental authorities that the remedy of review was available and they were contemplating to file a review petition until they were informed by the District Attorney that review before the Service Tribunal was not competent. The Hon'ble Supreme Court observed that, they were not impressed with the explanation and it does not constitute a valid ground for condoning the delay. However, since another appeal in which the same order was impugned was filed before the Hon'ble Supreme Court within the period of limitation therefore, leave was granted to consider an identical question. So far the principle of law is concerned, the Hon'ble Supreme Court clearly held that, erroneous view about a proposition of law pertaining to availability of forum was not a valid ground for condoning the delay. In the case of Muhammad Raz Khan, the Hon'ble Supreme Court elaborately discussed the question of limitation pertaining to the impugned orders alleged to be void and held as follows:‑‑ "

4. Secondly, there is no cavil to the proposition that normally constraints of limitation do not apply against void orders as held in case of Muhammad Shafi v . Mushtaque Ahmed 1996 SCMR

865. Nevertheless every case is distinguishable on its facts and circumstances. It is undoubtedly imperative for aggrieved party to persue legal remedies with utmost diligence and satisfy conscience of the Court or quasi‑judicial authority for approaching respective forums beyond prescribed limitation, even if objections to that effect were not raised. This principle has been discussed in PLD 1985 SC 153 (Hakim Muhammad Buta and another v. Habib Ahmed and others) and PLD 1993 SC 147 (Province of Punjab and others v. Muhammad Hussain and others). Thus, aggrieved person seeking redress has legal obligation to justify each day's delay for launching proceedings, because with lapse of time valuable right accrues to the opposite side. This view has been consistently maintained by superior Courts. However, reference may be made to judgments reported in (i) PLD 1996 SC 292 (Ali and others v. Muhammad Shafi and others), (ii) PLD 1995 SC 396 (Government of Punjab v. Muhammad Saleem), (iii) 1986 SCMR 930 (Muhammad Feroze Khan v. Khalique Dad Khan and 28 others), (iv) PLD 1982 SC (AJ&K) 13 (Khadim Hussain Khan v. The State).

5. Now looking to applicability of limitation against void orders question would naturally' arise whether right of such person against whom an adverse order exists would be unfettered, ignoring established principles and would enjoy limitless discretion to knock the door of justice whenever desired by him or same should be regulated by judicious norms. We earnestly feel that unless certain constraints apply against right of challenging void order specially relatable to period of knowledge, the same may create complications leading to dangerous results. Principle of justice and fairplay does not help those who were extraordinary negligent in asserting their right and despite becoming aware about alleged void order adverse to their interest remain to deep slumber. Therefore, according to our considered opinion, facility regarding extension of time for challenging orders cannot be legitimately stretched to any length of unreasonable period at the whims, choices or sweet‑will of affected party. Thus, order termed as nullity or void could at best be assailed by computing period of limitation when he factually came to know about the same. When a person presumes that adverse order is a nullity or totally devoid of lawful authority and ignores it beyond the period specified by law of limitation, then he does so at his own risk. Therefore, in all fairness terminus a quo will have to be fixed, the date of knowledge of alleged void order, which too must be independently established on sound basis. In this behalf, we derive strength from the observations contained in PLD 1975 Baghadad‑ul‑Jadid 29 (Sayed Sajid Ali v. Sayed Wajid Ali) and 1978 SCMR 367 (S. Sharif Ahmad Hashmi v. Chairman, Screening Committee). In the case of Ahmed Ali, the condonation of delay in filing the appeal was sought on the ground that the appellant had no notice of the order assailed before the Hon'ble Supreme Court and the contention was not controverted by the respondent, therefore, the delay was condoned. In the case of Land Acquisition Collector, the Hon'ble Supreme Court observed as follows:‑‑‑ "It is settled law that the bar of limitation would not operate in respect of void orders but not in respect of erroneous orders. The question of limitation may not, therefore, arise in respect of a judgment which is a nullity in law, void or ultra vires the statute or the Constitution." In the case of Fida Hussain, the Hon'ble Supreme Court laid down the principle that in case of decree allegedly obtained through fraud, the right would accrue to challenge the said decree when the fraud comes to the knowledge of the applicant in case he was not party to the suit. After a careful consideration of the principles laid down by the Hon'ble Supreme Court, in the above judgments, the principles which can be deduced are that the period of limitation shall be applicable to the erroneous orders and even in cases of void orders and the decrees obtained through fraud, the period of limitation shall start running when the person adversely affected factually comes to know about the same. In the words of Hon'ble Supreme Court, therefore, in all fairness terminus a quo will have to be fixed, the date of knowledge of alleged void order which too must be independently established on sound basis. Now we consider the contention raised in the application for condonation of delay to the effect that the appellants could not file the appeal without obtaining certified copy of the impugned order and that the period of limitation be computed from the date of supply of the certified copy and not from the date of knowledge of the impugned judgment. The point in question came for consideration before a Division Bench of erstwhile West Pakistan High Court (predecessor of this Court), in the case of Abdul Karim v. Sheikh Muhammad PLD 1966 Baghdad‑ul‑Jadid

14. The Bench comprising their Lordships Anwarul Haq and Abdul Kadir Sheikh, JJ did not accept the explanation in support of plea for condonation of delay. The relevant facts were that, a learned Single Judge delivered the judgment on 18‑12‑1961. In the application for condonation of delay it was alleged that the appellant applied for certified copy of judgment on 20th of December, 1961, which was supplied on the same day. He was then advised to apply for certified copy of decree. The application was submitted on 4‑1‑1962 and certified copy supplied was on 15‑1‑1962. The appeal was preferred on 29‑1‑1962. The period of limitation for filing Letters Patent Appeal was 30 days from the date of judgment. It was contended that due to erroneous advice to the effect that certified copy of the decree had also to be filed alongwith the appeal, the delay was caused. The Hon'ble Division Bench observed that, the question whether the time requisite for obtaining the copy of the judgment under appeal in such a case can be excluded was considered by a Full Bench in the case of Jog Dhian v. Hussain and another AIR 1935 Lah. 328, and it was held, with reference to rule 4 as contained in Chapter 1‑A of Volume V of the High Court Rules and Orders, that: "The rules under the Letters Patent do not amount to a special or local law. It follows that the time requisite for obtaining a copy of the judgment appealed from, which need not be filed with the Memorandum of Appeal, cannot be excluded." It is further held that the reason given by the appellant for delay in filing the appeal cannot be accepted as sufficient cause for condoning the delay, because there was no legal requirement of filing a certified copy of the decree alongwith the appeal. The contention that even if the time requisite for obtaining the copy of the judgment and the decree sheet cannot be excluded yet the delay be condoned on the ground that it was due to the erroneous advice given to the appellant by his counsel was repelled. It was observed that, even if erroneous advice was given by a lawyer, it is clear that it was done without due care and attention as the rules on the subject were quite clear and there was also a Full Bench decision of the Lahore High Court on this very point to the effect that erroneous advice cannot be regarded as a bona fide mistake in the sense in which this phrase is defined in the Limitation Act. Reference was made to the judgment in the case of Said Muhammad v. Goma PLD 1952 B J 8, wherein it was held as follows: "The test therefore, whether or not a cause is sufficient is to see whether it could have been avoided by a party by the exercise of due care and attention. In other words, whether it is a bona fide cause, inasmuch as nothing shall be deemed to be bona fide or in good faith which is not done with due care and attention." It was further held in the case of Said Muhammad that, but where there has been a bona fide mistake, not through misconduct or through negligence, nor through want or reasonable skill, but such as a skilled person might make the client is entitled to indulgence. The learned Judges in the case of Abdul Karim, held as under:‑‑ "We are in respectful agreement with the above observations and consider that in the present case if there was indeed any erroneous advice tendered to the appellant in the matter of obtaining a certified copy of the decree sheet, that advice was the result of negligence and would not constitute sufficient cause within the meaning of the law. The appeal was held to be time barred and was accordingly dismissed." Similar question was considered by a Division Bench of the Lahore High Court in the case of Abdul Subhan v. Chief Settlement and Rehabilitation Commissioner 1987 MLD 2736. In this case the High Court Appeal was presented after expiry of the period of limitation. While considering the plea for condonation, it was held that, under Article 151 of the Schedule to the Limitation Apt, 1908 the limitation for filing such an appeal is 20 days. The order under appeal was made on 28‑11‑1966. The appeal was filed on 15‑6‑1967. The appeal could be filed without a certified copy of the impugned order. Application for certified copy was made on 20‑5‑1967. It was delivered on 9‑6‑1967. It was further observed that, the copy of order was delivered on 9‑6‑1967 while the appeal was filed on 15‑6‑1967. It was held that, in such a case a person has to explain the delay of each day. The delay from 9‑6‑1967 to 15‑6‑1967 was not explained and accordingly it was held that apart from, the fact that no copy for filing the appeal was required, the time spent for obtaining the copy could not be excluded. The non‑filing of appeal in between 9‑6‑1967 to 15‑6‑1967 was not explained and therefore, the condonation of delay was not allowed and the appeal was dismissed as barred by time. Rule 4, Chapter 1‑A, Volume V of High Court Rules which is being acted upon in this Court contains as follows:‑‑‑ "

4. Letters Patent appeals‑‑‑Time within which to be filed and documents to accompany.‑‑Every appeal to the High Court under clause 10 of the Letters Patent from a Judge sitting singly on the appellate side of the High Court, shall be presented within 30 days from the date of the judgment appealed from, unless the admitting Bench, in its discretion for good cause shown, grants further time. The period of limitation for the presentation of an appeal against the judgment of a Single Judge exercising original jurisdiction is 20 days from the date of the judgment (Article 151 of the Schedule to the Indian Limitation Act, 1908). In an appeal under clause 10 of the Letters Patent, the Memorandum of Appeal need not be accompanied by a copy of the decree, order or judgment appealed from, but where a certificate is required under clause

10. The Memorandum of Appeal must contain a declaration to the effect that the Judge who passed the judgment has certified that the case is a fit one for appeal. The time spent in obtaining the certificate (including the date of the order granting the certificate, shall be excluded in computing the period of limitation). The periods of limitation prescribed in this Rule, shall be computed in accordance with the provisions of section 12 of the Indian Limitation Act, 1908." Since the filing of certified copy of judgment and decree is not a requirement for filing of High Court Appeal, therefore the contention that the delay caused on account of obtaining the certified copy of the judgment and decree amounts to sufficient cause is not tenable at all. In the facts and circumstances of the case, the period of limitation started running from the date of knowledge of the impugned judgment on the part of respondent No.

1. The application for condonation of delay is totally silent about the particular date when he came to know about the impugned judgment. However, even if it is taken as 16‑7‑2002 when the application for certified copy was filed, the appeal is hopelessly barren by time, coupled with the fact that there is no explanation as to why appeal was not immediately filed on receiving the certified copy of the impugned judgment and decree on 20‑9‑2002. The contention that the period of limitation started running from the date of supply of the certified copy of the judgment and decree i.e. 20‑9‑2002 and therefore the appeal was filed within 20 days of such date is totally erroneous and untenable. For the foregoing reasons, it is held that, no sufficient cause has been shown for condoning the delay and resultantly the application under section 5 of the Limitation Act, stands dismissed. Consequently, the appeal stands dismissed as barred by time alongwith the listed applications. S.A.K./R-107/K Appeal dismissed.