' The brief facts out of which the present writ petition arises are that the petitioner secured electricity connection from the respondents. The respondents have issued notice to the petitioner.
The petitioner being aggrieved filed Constitutional Petition No,13064 of 2004, which was disposed of by this Court vide order dated 4-8-2004 and the impugned notice was held in abeyance. The respondents have disconnected the connection of the petitioner on 5.8-2004 in spite of the knowledge of the order of this Court. The petitioner being aggrieved filed this Constitutional petition.
2. The learned counsel of the petitioner submits that petitioner has informed the respondents that operation of the impugned notice has been suspended by this Court vide order dated 4-8-2004.
Respondent No,4 intimated the petitioner as follows:-- "I have already received telephonic message from P.A. Of Mr. Muhammad Hanif Khatana, Additional Advocate General, Lahore at about 2-40 p.m. On 4-8-2004 for suspension of operation of his order/notice dated 28-7-2004 but said that I have disconnected the power supply/ connection of the petitioner's Ice Factory premises on 5-8-2004 at about 12-00 (Noon)."
' The learned counsel of the petitioner submits that respondents Nos.3 and 4 have wilfully and deliberately lowered the dignity of the order of this Court by using such undesirable language and not complying the order dated 4-8-2004 and committed gross contempt and are liable to be proceeded under Contempt of Court Ordinance 2003. The case was fixed on 10-8-2004. The learned counsel of the petitioner was directed to hand over copy of the writ petition along with all the annexures to Mr. Muhammad Akbar Tarrar, Addl. A.-G. Mr. Abdul Rehman Madni, Advocate/standing counsel of the respondents and Mian Hamid-ud-Din Kasuri, Deputy Attorney General for Pakistan, who were directed to assist the Court on the next date of hearing after obtaining instructions from respective respondents. The case was adjourned for 18-8-2004. Messrs Hafiz Muhammad Yousaf, Advocate and Abdul Rehman Madni, Advocate entered appearance on 18-8-2004 and requested adjournment, which was opposed by the learned counsel of the petitioner. However, in the interest of justice and fair play, case was adjourned for 31-8-2004. On 31- 8-2004 Mr. Ilyas Khan Advocate got adjournment on the ground that he had received fax message from the respondents, which was allowed and the case was adjourned for 2-9-2004.
3. The respondents have filed report and parawise comments in Court and copy of the same has been handed over to the learned counsel of the petitioner. The respondents have taken a. Stand in reply of para.6 that petitioner did not appear before the respondents in terms of order dated 4-8- 2004 on 9-8-2004. The supply of the electricity of the petitioner has been restored by the respondents -on 16-8-2004. The learned counsel of the respondents on the basis of the parawise comments submit that petitioner is to make the payment of arrears plus current bill which amounted to Rs,2,55,558. The respondents have also mentioned the conduct of the petitioner by approaching different Courts in para..7. They further submit that petitioner has not approached this Court with clean hands.
4. The learned counsel of the petitioner in rebuttal submits that respondents have committed contempt of this Court after intimation of the direction of this Court on 4-8-2004 at 2-40 p.m.
Disconnected the connection, of the petitioner on 5-8-2004. He further submits that he has no knowledge qua restoration of the connection of the petitioner, as the petitioner is not present in Court. He further submits that matter qua the outstanding of the respondents is pending adjudication before the Inspector.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
6. It is settled principle of law that this Court has ample jurisdiction to look into the subsequent events at the time of deciding the cases as per law laid down by the Division Bench of the Karachi High Court and the Honourable Supreme Court in the following judgments:-- ' Nasir Jamal v. Zubeda Seguin 1990 CLC 1069 ' Mst. Amina Begum etc. v. Mehr Ghulam Dastgir PLD 1978 SC 220.
' It is also settled principle of law that contempt is always between the contemner and the Court. As the respondents, as mentioned above, have taken a definite stand. That the electricity connection of the petitioner has been restored by the respondents on 16-8-2004, therefore, I am not inclined to proceed against respondents Nos.3 and 4 under the provisions of the Contempt of Court Ordinance, 2003. It is also settled principle I of law that Constitutional jurisdiction is C discretionary in character. He who seeks equity must come in the Court with clean hands. The respondents have taken a definite stand in reply of para.6 that the petitioner did not appear before respondents as directed by this Court vide orders dated 4-8-2004 on 9-8-2004, therefore, petitioner has not approached this Court with clean hands. It is better and appropriate to reproduce litigation between the parties as highlighted by respondents in para.7 as under:--
(1) Writ Petition No, 13868 of 2003 Sarfraz Hussain v. WAPDA. The petition was disposed of with a direction to decide the application of the petitioner within 15 days. Copy of the order is enclosed as Annexure-R/1.
(2) Cr. Ore. No,I156-W of 2003 Sarfraz Hussain v. Ibrahim Makhoka etc. The contempt application was moved which was disposed of with the observation that no contempt whatsoever has been committed. Dispose of. Copy of the order is attached as Annexure-R/2.
(3) Writ Petition No,3605 of 2004 Sarfraz Hussain v. WAPDA etc. The petition was disposed of with the observation that connection to petitioner's premises shall be restored within 24 hours of the deposit of the re-connection charges and payment of Rs,50,000 as first instalment. It was further directed that if WAPDA has granted the facility of payment in six instalments to any consumer in the area, petitioner shall be granted the same facility. The petition was disposed of.' A copy of the order is attached as Annexure-R/3
(4) Cr. Org. No,500-W of 2004. The petition was disposed of with the observation that "let petitioner appear before the respondent on any date during the next week". Copy of the order is attached as Annexure-R/4.
(5) Writ Petition No,1109 of 2004. The writ petition was against FIA Authorities, which was disposed of with a direction to Inspector to bring on record the version of the petitioner. A copy of the order is enclosed as Annexure-R/5.
(6) Cr. Ore. No,474-W of 2004. The petition was disposed of with the observation that no case of contempt is made out. A copy of the order is attached as AnnexureR/6.
(7) Writ Petition No,8025 of 2004. The petitioner did not press this petition and it was disposed of. A copy of the order is attached as Annexure-R/7.
(8) Writ Petition No,8941 of 2004. The petition was disposed of on the ground that the petition entails factual inquiry which exercise cannot be undertaken in a Constitutional petition. Copy of the order dated 8-6-2004 is attached as Annexure-R/8
(9) Writ Petition No,13064 of 2004. The petition was disposed of with the direction that the petitioner is directed to appear before the respondent No,4 in his office at 11-00 a.m. On 9-8-2004. A copy of the order is attached as Annexure-R/9
(10) The titled petition is pending before this Honourable Court.
' In view of what has been discussed above, I am not inclined to exercise my discretion in favour of the petitioner in view of the conduct of the petitioner as per law laid down by the Honourable Supreme Court in Rana Muhammad Arshad's case 1998 SCM R 1462 and Nawab Syed Raunaq Ali's case PLD 1973 SC 236. This petition has no merits and the same dismissed.
Petition dismissed.
2005 L R 341 [Lahore] Before Muhammad Muzammal Khan, J.
WAPDA through its Chairman and 4 others---Petitioners versus KARAM DIN ---Respondent Civil Revision No,1407 of 2004, decided on 2nd July, 2004.
(a) Limitation Act (IX of 1908)- ----S.5---Delay---Condonation of---Ill advice by the counsel was not sufficient for condonation of delay. /p. 3431 A Zulfiqar All v. Lal Din and another 1974 SCM R 162; Mst. Mahmooda Begum and others v. Major Malik Muhammad Ishaq and others 1984 SCMR 890; Muhammad Afzal Bhatti and 17 others v. Province of Punjab through Collector, Rawalpindi and 4 others 1997 SCM R 296 and Bashir Ahmad v. Muhammad Sharif and 4 others PLD 2001 SC 228 ref.
(b) Limitation--- Question of limitation-Government could not be treated differently than the private individuals on the question of limitation. /p. 343J B Government of the Punjab through Secretary (Services). Services General Administration and Information Department, Lahore and another v. Muhammad Saleem PLD 1995 SC 396 ref.
(c) Limitation--- - ---Limitation once having started to run, could not be stopped by any subsequent act. [p. 343J C Cantonment Board. Rawalpindi v. Muhammad Sharif through Legal Heirs PLD 1995 SC 472 ref.
(d) Civil Procedure Code (V of 1908)- - ---S.96 & O.XLI. R.1---Limitation Act (IX of 1908). S.5---First appeal---Limitation--Delay, condonation of---In all cases, where condonation was prayed, each day's delay had to be explained---Appellants, in the present case, had filed delayed appeal, but they had not given any explanation for such delay except that their counsel had intimated that appeal could be filed till a particular date---Said explanation was not enough and ill advice of counsel was not sufficient for condonation of delay. /p. 3431 D Muhammad Hussain and others v. Settlement and Rehabilitation Commissioner and others 1975 SCM R 304 ref.
(e) Civil Procedure Code (V of 1908)- ----Ss.115 & 96---Appeal---Delay--- Condonation of---Re visional jurisdiction. Exercise of---Appellate Court below applying law correctly had rightly found that appeal filed by appellants against judgment and decree of Trial Court was barred by limitation and that delay in filing appeal could not be condoned--Judgment/order of Appellate Court below not being arbitrary or fanciful could not be interfered with by High Court in exercise of its revisional jurisdiction in absence of any illegality or irregularity in judgment/order of appellate Court. [p. 343] E Malik Muhammad Tariq Awan for Petitioner.
' This revision petition assails orders/judgments/decrees dated 19-12-2003 and 12-2-2004 passed by the learned Civil Judge and learned Additional District Judge, Sheikhupura whereby suit of the respondent was decreed and appeal of the petitioners was dismissed as barred by limitation, respectively.
2. Precisely, relevant facts are that the respondent is a consumer of the petitioners with reference No,1543- 134360R which was subsequently changed by the petitioners twice. The respondent had been regularly paying the electricity bills and there was nothing outstanding against him when in the month of August, 1998, his electricity meter became defective on which an application was moved to the petitioners for change of electricity meter. The respondent instead of changing the meter, issued him a detection bill, on the basis of bills already paid by him. Refusal of the petitioner to withdraw the bill, led to filing of suit by the respondent for declaration with permanent injunction as consequential relief to the effect that he is not liable to pay the demand .Bill and that the petitioners may be restrained from disconnecting his electricity supply. The respondent pleaded in his plaint that he resides in a small house comprising of three rooms being a man of middle class and his consumption of electricity is much less than the one demanded by the petitioners. He further averred that besides the fact that he is not liable to pay electricity bill of Rs,23,570, the rate of detection bill is excessive/exorbitant as compared to his previous average consumption.
3. The petitioners being defendants in the suit contested it by filing their written statement denying assertions of the respondent in his plaint. Controversial pleadings of the parties, necessitated framing of issues and recording of evidence. The learned Civil Judge who was seized of the matter after doing the needful, decreed the suit of the respondent vide his judgment and decree dated 19- 12-2003.
4. The petitioners aggrieved of the decision of the trial Court dated 19-12-2003, on 10-2-2004 filed a time-barred appeal which was dismissed on 12-2-2004. They have now filed instant revision petition against the judgments and decrees of the two Courts below.
5. Learned counsel for the petitioners submitted that the petitioners filed an application under section 5 of the Limitation Act, 1908 detailing sufficient cause for the condonation of delay occasioned in filing the appeal but a contrary view taken by the Appellate Court is not in consonance with the settled principle known for administration of justice. He further submitted that copies of the judgment and decrees appealed before the First Appellate Court were supplied on 16-1-2004 and on the last day of limitation, Eid holiday's intervened and by excluding those holidays, appeal of the petitioners was within limitation. It was further submitted on behalf of the petitioners that it is settled proposition that instead of non-suiting the litigants on technicalities, the cases should be decided on merits but this aspect of the case, escaped notice of the Appellate Court. Learned counsel for the petitioners also urged that the petitioners being departmental functionaries were not to be dealt like trained litigants because the Government Departments, have to rely on their subordinate functionaries to follow the litigation and that an Advocate who is an expert of law, gave them advice that appeal could be filed till 10-2-2004, which was a sufficient cause for condonation of delay.
6. I have anxiously considered the arguments of the learned counsel for the petitioners and have examined the record, appended herewith. Undeniably, judgment was announced by the trial Court on 19-12-2003, copies of which were applied by the petitioners on 3-1-2004 i.e, after 15 days. The copies applied were supplied on 16-1-2004. The time spent for obtaining certified copies of the judgment and decree appealed against was to be excluded, which is from 3-1-2004 to 16-1-2004, by this exclusion, appeal was to be filed till 2-2-2004. On the last day of limitation, public holidays of Eid were announced from 2-2-2004 to 5-2-2004. In this manner, appeal could have been filed on reopening of the Courts i.e, 6-2-2004 but instead, it was filed on 10-2-2004. There is no explanation of any kind by the petitioners as to why appeal could not be filed from 6-2-2004 to 9- 2-2004. Law regarding condonation of delay has been settled by repeated consistent judgments of the Honourable Supreme Court on the subject whereby it was held that any ill advise by A the counsel is not sufficient for condonation of delay. Reference in this behalf can be made to the judgments in the cases of Zulfiqar Ali v. Lal Din and another 1974 SCM R 162; Mst. Mahmooda Begum and others v. Major Malik Muhammad Ishaq and others 1984 SCMR 890; Muhammad Afzal Bhatti and 17 others v. Province of Punjab through Collector, Rawalpindi and 4 others 1997 SCM R 296 and Bashir Ahmad v. Muhammad Sharif and 4 others PLD 2001 SC 228. Similarly, controversy regarding giving grace to the Government Department, as compared to private litigants, has also been put to rest by the Honourable Supreme Court by holding that Government cannot be treated differently than the private individuals on the question of limitation, in the case of Government of the Punjab through Secretary (Services), Services General Administration and Information Department, Lahore and another v. Muhammad Saleem PLD 1995 SC 396.
7. Limitation once having started to run, cannot be stopped by any subsequent act, as held by the Honourable Supreme Court in the case of Cantonment Board, Rawalpindi v. Muhammad Sharif through Legal Heirs PLD 1995 SC 472. In all the cases, where condonation is prayed, the applicant has to explain each day's delay but in the case in hand, no such explanation by the petitioners had been given except that their counsel intimated them that appeal could be filed till 9-2-2004 but this explanation is not enough as observed D above. Reference in this behalf can be made to the case of Government of the Punjab, through Secretary Services (supra) and Muhammad Hussain and others v. Settlement and Rehabilitation Commissioner and others 1975 SCM R 304.
8. For the reasons noted above, I have no ambiguity that First Appellate Court correctly applied the law and rightly held that appeal of the petitioners was barred by limitation and the delay caused by them in filing it, cannot be condoned. Judgment/ order of the Appellate Court is not shown to be arbitrary or fanciful and without set it aside, judgment and decree of the trial Court cannot be reversed. Both the Courts below committed no illegality or irregularity as envisaged by section 115, C.P.C. In absence of which no interference in revisional jurisdiction by this Court is permissible, under law. This revision petition has no merit in it and is accordingly dismissed in limine.