RANA BHAGWANDAS, J.---This judgment shall dispose of aforesaid two petitions directed against a consolidated judgment of the Lahore High Court in Writ Petitions Nos. 2152 and 9692 of 1995, as common question of fact and law are involved.
2. Petitioner was serving as Secretary Chamanzar House Building Society Limited-respondent No. 4 (hereinafter referred to as the Society). A show-cause notice dated 21.12.1970 was issued to him in terms of section 50-A read with section 22-A of the Co-operative Societies Act, 1925 (hereinafter referred to as Act 1925), on the premise that he had acted dishonestly and caused financial loss to the Society to the tune of Rs. 11,31,693.75. The petitioner contested the notice and submitted a detailed reply. The proceedings dragged on for more than 15 years. Ultimately, respondent No. 2.
Vide order dated 6.8.1985 concluded as under:- "(i) Mr. S. A Jamil withdrew Rs.10,87,962.00 for the purchase of land measuring 716 kanals. He only transferred 528 kanals in the name of the society. Loss occurred to the society to the tune of Rs.
151,000.00 (the value of remaining 187 kanals) as decreed by the Registrar's nominee. He is liable to pay the amount above alongwith the simple interest at Bank's rate.
(ii) He also purchased land at a lower rate than the indicated one. On this score a loss/damage of Rs, 4,37,740.00 occurred to the society. He is liable to pay this amount alongwith simple interest chargeable upto the date of announcement of this order.
(iii) He incurred unjustified and unsupported expenses wroth Rs. 44,130.00. He is also liable to pay this amount with interest to be worked out till to-date.
3. Society's claim for recovery of two more amounts of Rs. 3,38,000.00 and Rs. 2,30,627.00 were,.
However, disallowed. Petitioner filed an appeal. Under section 64 of the Act, 1925, which was dismissed by Secretary to Government of Punjab, Co-operative Department vide order dated 28.7.1993. He then challenged the vires of the original as well as appellate order through Writ Petition No. 2152 of 1995. In the second Writ Petition i.e. 9692 or 1995, petitioner assailed the order dated 6.1.1994 passed in terms of section 81 of the Punjab Land Revenue Act, 1967, requiring him to pay a sum of Rs. 51,94,801.00 on account of dues payable to Punjab Provincial Co-operative Bank Limited, Sanda Road, Lahore on or before 22.1.1994 and order dated 26.4.1995 passed by Secretary, Co-operative Department, declining to modify the order dated 28.7.1993. While the first petition was filed in the High Court on 16.2.1995, the second petition was instituted on 25.7.1995.
4. We have heard learned counsel for the parties at great length and gone through the record made available.
5. A glance at the impugned judgment tends to reflect that the petitioner has been mainly non- suited on account of laches without realising that the proceedings before the Deputy Registrar had lingered on for almost 15 years; decision of the appeal before the Secretary Cooperative Department took nearly 8 years whereas the petitioner having impugned the correctness of the original as well as appellate orders before Secretary Co-operative Department ter want of record of respondent No. 4-Society, awaited the outcome of his representation and invoked the jurisdiction of the High Court when coercive proceedings were likely to commence. Respondent's objection to the conduct of the petitioner on the premise of laches appears to be that the factum of filing a representation for review/recall of the appellate order was not disclosed in the memo. Of writ. Petition but there can be no denial of the fact that such representation had in fact been made.
This was because appellate authority passed the impugned order without the assistance of the relevant record despite requests of the petitioner. There is an order by Lahore High Court dated 27.2.1995 on record, directing the Secretary, Co-operative Department to dispose of the review petition within one month. It was only after this direction that the said petition was actually dismissed on 26.4.1995 on the premise that, in terms of section 64-AA of the Act, 1925, finality was attached to an order passed in appeal or revision by the Provincial Government.
6. Adverting to the question of laches, not raised by the respondents but pointed out by the High Court of its own, it may be pertinent to observe that there is a marked distinction between delay in filing of a legal proceedings within the period specified under the provisions of Limitation Act, 1908 and undue time consumed by a party in filing of Constitutional petition, for which no statutory period is prescribed under the law. In the former case, delay of each day is to be explained by furnishing sufficient cause for enlargement of time and condonation of delay within the contemplation of section 5 of the Limitation Act whereas in the latter case lapse of time or the question of laches is to be examined on equitable principles for the reason that the exercise of Constitutional jurisdiction is always discretionary with the Court and the relief so granted is always in the nature of equitable relief. In case the Court comes to a conclusion that equity leans in favour of the petitioner, the Court must exercise discretion in favour of such party.
However, if the Court finds that the party invoking writ jurisdiction of the High Court is guilty of contumacious lethargy, inaction, laxity or gross negligence in the prosecution of a cause for enforcement of a right, the Court would be justified in non-suiting such person on the premise of laches. Indeed the issue of delay or laches is to be considered with reference to the facts of each case and no hard and fast rule can be laid down in this behalf. It was aptly observed by Ajmal Mian, CJ (as his Lordships then was) in Ardeshir Cowasjee Vs. Karachi Building Control Authority
(KMC) Karachi (1999 SCM R 2883) that delay/laches of several years can be overlooked in a Constitutional petition if the cause of the case and dictates of justice so warrant or the delay/laches of month may be fatal to a Constitutional petition. There is sufficient force in the submission of the petitioner's counsel when he says that petitioner had been vigorously pursuing his remedy before the executive forum. Learned counsel is unable to controvert the legal position that, strictly speaking, a review petition would not be competent before the appellate authority under the Act, 1925 but he is of the view that respondent No. 1 while acting as an appellate forum and exercising quasi- judicial authority was certainly competent to recall, review and modify the appellate order within the contemplation of section 21 of the General Clauses Act, 1897. The question of laches in the perspective of a writ petition was exhaustively dealt with in Pakistan Post Office v. Settlement Commissioner (1987 SCM R 1119). We can do no better than to reproduce the extract from the preceuent which reads as under:- "There is absolutely no justification to equate laches with statutory bar of limitation. While the former operates as a bar in equity, the latter operates as a legal bar to the grant of remedy. Thus, in the former, all the dictates of justice and equity and balance of legitimate rights are to be weighed; in the latter subject to statutory relaxations this behalf, nothing is left to the discretion of the Court. It is a harsh law.
Thus, passage of time Per se brings the statute of limitation operation, but the bar of laches does not deny the grant of right or slice the remedy unless the grant of relief, in addition to being delayed, must also perpetuate injustice to another party. It is also in this very context that the condonation of delay under section 5 of the Limitation Act will be on different harder considerations than those in a case of laches. For example, while it is essential to explain and condone the delay of each day vis-a-vis strict requirement in cases of laches."
Reference may also be made to Masooda Bagum v. Government of Punjab (PLD 2003 SC 90) and Ardeshir Cowasjee, Karachi v.Mess Multiline Associates, Karachi (PLD 1993 Kar 237).
7. Perhaps learned Judge in Chambers of the High Court was swayed away by the circumstance that the. Petitioner was challenging the original order dated 6.8.1985, after the lapse of a decade.. Furthermore, the petitioner having omitted to cite the factum of having filed a representation for reconsideration of the appellate order, learned Judge in the High Court thought that the petitioner was guilty of contumacious. Latitude and unexplained delay in approaching the High Court for the exercise of Constitutional jurisdiction. Since the procedural law prescribed under the Code of Civil Procedure would not be strictly attracted to the proceedings before quasi-judicial forums, we are of the considered view that omission on the part of the petitioner to highlight this fact would not be fatal to the maintainability of the writ petition, which was filed within a reasonable time of the accrual of the right to appeal.
8. Reverting to the merits of the petitions, grievance of the petitioner essentially is that neither the Deputy Registrar nor respondent No. 1 summoned the record of the Society to ascertain whether the petitioner had actually drawn huge amounts and misappropriated the same to his own use despite his repeated requests and protests.
Both the orders have been seriously assailed by the petitioner on the premise that the Deputy Registrar himself has observed in the impugned order that most of the record of the Society was available with the police, who had registered a case under sections 408, 420 etc. PPC against the petitioner pending before a Court of law. In case, it be so, it was all the more incumbent upon the Deputy Registrar and after the passing of the original order for the appellate authority to take steps for procuring the relevant record, without reference to which the petitioner was wrongly declared to be defaulter. This aspect of the case requires serious consideration and since we are not satisfied with the legality of both the orders, we would refrain from making further comments and be content by observing that relevant record was not available before the forums, who adjudicated the liability of the petitioner for payment of huge sums of money.
9. Learned counsel for the Provincial Government as well as the Society have not been able to persuade us to take a contrary view to sustain the impugned orders without any reference to material documentary evidence.
10. Resultantly, we would convert these petitions into appeals, set aside the impugned judgment of the High Court and remand the case to the appellate authority i.e. The Secretary, Co-operative Department for a fresh decision, after providing an opportunity of hearing to the parities, as quickly as possible but not later than ninety days from today. Learned counsel appearing for the Provincial Government is directed to convey the order to the incumbent Secretary for doing the needful.
Secretary concerned shall submit compliance to the Registrar of this Court immediately on expiry of ninety dais, No order as to costs.