2001 SCMR 19 (PLP)

IFTIKHAR MUHAMMAD CHAUDHRY, J.

This petition has been filed to seek leave to appeal against judgment, dated June 3, 1999 passed by High Court of Balochistan in Civil Revisions Nos.400 of 1996 and 121 of 1997 whereby revision petitions were dismissed with the modification in the relief. Concluding para. therefrom is reproduced hereinbelow:-- "In view of what has been discussed hereinabove I am of the considered opinion that the judgment/decree impugned is, well- reasoned and not open to any exception. Consequently both the petitions are dismissed. However, it is observed that as possession of the suit land has been handed over by the Government 'of Balochistan to Hub Power Company for installation of Power Project, therefore, to my perception practically it is not possible at this stage to hand over the possession of land to respondents. Moreover, the respondents themselves have requested before the Appellate Court that if it is not possible to hand over the land to them in that case they should be properly compensated. The discretion is vested in the Court but the Courts should exercise it judiciously in order to avoid multiplicity of proceedings and to shorten litigation to do complete justice between the parties and mould the relief according to the altered circumstances in the larger interest of justice and to make the decree executable. In this regard I am supported by the judgment of Hon'ble Supreme Court reported in PLD 1978 SC page 220, thus, I am inclined to hold that since the land has been occupied by the Hub Power Company which had already installed the biggest Power Project of the country thereon, as such, the sale price which has been paid by Hub Power Company to the Government be paid to the respondents. With the modification mentioned hereinabove petitions are dismissed. However, the mutation entry in the name of Hub Power Company shall remain intact on its, name.".

2. The petition was found to be barred by 38 days, therefore, application for condonation of delay has also been filed wherein indulgence of the Court has been asked for the following reasons:-- "(1) That the petition filed is beyond its limitation time was basically due to the incomplete record received by Advocate-on -Record, to be filed with the petition. Repeated inquiries, phones and requests with promise of supplying the relevant documents at its earliest bore no positive result. But waiting to receive the same resulted in unnecessary delay in filing the petition. (2) That the order/judgment of Appellate Court so challenged was in the opinion of Advocate-on-Record, a void order and, therefore, no limitation runs against it. And under such view of the matter, the required application was not attached. (3) That the impugned order was decided mere on technical grounds than the merits of the case. Since the interest of public is involved, therefore, it is just that the delay in the filing be condoned so that the adjudication is on merits, rather than on the technicalities of the case." Before dilating upon merit of the case we consider it appropriate to observe that invariably the cases instituted either before High Court or this Court on behalf of the Government suffer from laches, in complying with prescribed statutory provisions of limitation due to negligence of concerned authorities who are competent to launch judicial proceedings, inasmuch as to overcome the question of limitation, no cogent reason is assigned explaining the delay of each day preventing them from, filing proceedings in the Court. One of the reasons for it could be an unrecognized inbuilt non-cooperation between various Government functionaries either intentionally or for some extraneous consideration with an object to extend benefit to opponents/litigants at the costs of the Government rendering it ultimately to lose its cases up to the Apex Court. This Court has time and again in clear terms expressed in its judicial pronouncements that State and subject both are at par in the eye of law, therefore, Government agencies are not to be treated preferentially. Reference in this behalf may be made to the case of Lahore High Court, Lahore through Registrar v. Nazar Muhammad Fatiana and others (1998 SCMR 2376).

4. Now coming to the reasons assigned in the instant case seeking condonation of delay one can infer quite conveniently that no cooperation was extended to learned Advocate-on-Record, for filing petition before the Court in time. A careful perusal of the application, contents whereof have' been reproduced hereinabove, manifestly makes it clear that learned Advocate-on-Record, was not provided with. complete record of the case required to be submitted before this Court alongwith proceedings despite of repeated enquiries/requests made by her through phones to the concerned authorities, resultantly, the petition became time-barred. If she had not raised the plea that impugned order is a void order, there would have been a great difficulty for the Government to argue its case before this Court on merits. Thus, in the interest of the Government, we are compelled to observe that Government Officers who are at the helm of affairs must adopt a comprehensive procedure to ensure that its cases should not fail before the Courts on technical grounds like limitation etc. and efforts must be made to institute the proceedings within time instead of succumbing to criminal negligence of few of officers/officials who in order to oblige the opponent litigant for the sake of their handful gains managed to cause delay for one or the other reason in approaching the Court, and ultimately, such unscrupulous persons make attempt to shift their liability either on the Law Officers or on the Courts by advancing an argument that their case has not been presented properly or the Court has given an adverse decision. It may also be noted that such officers who are responsible for causing delay- in insisting proceedings never realize that though they had made some gain but due to their such conduct proportionately the Government had suffered huge losses as in the instant case, the total amount which has been received by the Government of Balochistan by handing over the land to respondent Hub Power Company is being claimed by the respondents considering themselves to be its owners.

5. As far as the merits of the case are concerned, there is no need to go in detail of legal and factual aspect because the impugned order apparently is a void order for the sole reason that private respondents have never prayed for grant of compensation of the land in dispute, but the learned. Judge in Chamber of the High Court following the judgment reported in PLD 1978 SC 220 has directed to pay them total sale price. It may be noted that in the said judgment, the High Court has exercised its inherent jurisdiction under section 151, C.P.C. to shorten the litigation which was going on between the parties since long and controversy between them was related to non-service of notice under section 30 of Displaced Persons (C & R) Act, 1958. Whereas in view of the facts and circumstances of the instant case, the judgment in the case of M/s. Malik & Haq and others v. Muhammad Shamas-ul-Islam Chaudhri and 2 others (PLD 1961 SC 531) is applicable with its all force on the instant case as in this case this Court has enunciated the law that "if the plaintiff is entitled to money from the, defendant, he cannot claim a declaration as to his being so entitled, must sue for money". In view of this principle of law two important questions emerge for consideration as to whether the respondent had legally established their claim over the property which Collector Lasbella had sold to the respondent Hub Power Company, and whether in alternative any specific prayer was made to claim the compensation in terms of money or not. As far as the former question is concerned, it is ought to be deferred for the time being because we intend to remand the case to the High Court, therefore, any observation if made, it shall reflect adversely on the case of either of the parties. However, as far as latter question is concerned, .it can safely be answered in the affirmative, because neither in the original, plaint, prayer was made for granting decree in terms of money nor during the pendency of the suit plaint was sought to be amended by incorporating the alternative relief. Therefore, we are of the considered opinion that the learned High Court travelled beyond its jurisdiction by granting relief to the private respondents and passed an order which has-no legal sanction in law.

6. When Mr. Ghulam Ahmad Sheikh, learned Advocate Supreme Court was confronted with above legal and factual situation, he candidly conceded for remand of the case to the High Court of Balochistan for fresh decision. Under the circumstances, learned A.A.-G., also subscribed to his view-point and prayed for remand of the case in the interest of justice. As such keeping in view peculiar circumstances of the case and examining the impugned order thoroughly, we are inclined to hold that it being a void order, deserves to be set aside, therefore, delay if caused in filing the petition, the same is condoned in the interest of justice. For the foregoing reasons, the petition is converted into appeal as a result whereof, impugned judgment, dated 3rd of June, 1999 is set aside and case is remanded to the High Court of Balochistan for disposal in accordance with law expeditiously.

8. Copy of the judgment be transmitted to the Chief Secretary, Government of Balochistan for initiating action against the officers/officials who are actually responsible for causing delay in filing the petition before this Court. No order as to costs. M.B.A./G-29/S Case remanded.