The brief facts leading to the stage of arguments before me are that on 27.5.1981 the present petitioners and respondent-company entered into a contract for construction of 125 beds Hospital at Pakistan Aeronautical Complex, Kamra, which work was completed by the respondent and the final bills were paid to him in the year 1986-87. But it came to light on the basis of audit in the office in 1987 that an amount of Rs, 3,59,630/24 was allegedly paid in excess to the respondent, for which he was not entitled, that the respondent failed to re-pay the said amount on repeated correspondence, hence a Suit No, 134/1, was filed on 31.7.1995 by the petitioners against him in the Court of learned Senior Civil Judge, Nowshera. Issues arising out of the pleadings of the parties were framed. The plaintiffs examined Khalid Mehmood SDO B&R Army as PW.1. and then closed the evidence of the plaintiffs. The defendant examined Maqsood Ahmad SDO B&R GEF-6, Kamra as DW.1, Afsar Ali UAG GEDP as DW.2, and Pervaiz Khan Managing Director as DW.3 and closed the evidence.
2. The learned Original Court decided that the suit of the plaintiffs was time-barred in accordance with Clause 65(d) of the Agreement between the parties, and that period could not be stopped by filing suit under Article 149 of the Limitation Act, 1908. It was further held that the audit assessment regarding over-payment to the defendant was carried out by the. Audit Test Team at the back of the defendant without affording him, an opportunity to show-cause, that the proceedings were void and illegal, and could not be termed to had been legally taken within the stipulated three years period, on payment of the final bill. Ultimately, the suit of the plaintiffs was dismissed. The present petitioners filed appeal in the Court of learned District Judge Nowshera which was contested by the respondent. The said appeal was also dismissed by the learned Appellate Court on the basis of its judgment dated 12.4.1999, hence this revision petition.
3. Mr. Hamid Farooq Durrani, learned DAG and Mr. Waqar Hanif Bhatti, Advocate, argued the case on behalf of the respective parties. I also perused the record.
4. It was on 27.5.1981 that the contract agreement duly signed by the representatives of the parties, copy Ex. PW.1/1, was finally accepted. The contract was for construction of 125 bedded Hospital at Kamra. The period for completion of work was twenty one months and CMES (DP)-1 Kamra was declared Controlling Officer and Engineer in-charge for the work. The final bill was prepared on 25.1.1986. It was as a result of the test audit of the Garrison that the controversy between the parties regarding over payments of Rs, 3,61,356/83 started in September, 1981. Suit No, 134/1 was instituted by the present petitioners in the Court of learned Senior Civil Judge, Nowshera on 31.7.1995 which was decided on 21.11.1997. The learned Senior Civil Judge was of the view that as the final bill was paid on 25.1.1986, and the period for adjustment of over payments, according to Clause 65(d) of the MES (General Conditions of a Contract), was three years, therefore, the period started from 25.1.1986 and could not be stopped by filing the suit under Article 149 of the Limitation Act, 1908. He, therefore, dismissed the suit. On appeal, the learned District Judge decided that Article 96, and not Article 149 of the said Act, was applicable, and the suit was, therefore, dismissed. He also discussed the case on merits, like the learned Original Court, and came to the conclusion that the suit was time-barred.
5. The learned DAG appearing for the petitioners contended that Article 149 mentioned above was applicable. The learned counsel for the respondent supported the judgments of the above named two Courts. He also referred to Section 29 of the Limitation Act, 1908 and submitted that the period prescribed in the General Conditions was the period of limitation. But Section 29 ibid is related to Statutes and not to documents of the nature of the referred General Conditions.
6. The learned District Judge had also found that the appeal before him was time-barred and was liable to dismissal. He discussed that attested copies of the impugned judgment and decree dated 21.11.1997 were delivered to the petitioner on 3.2.1998, but time was consumed in correspondence and counsel was informed on 24.2.1998 to file appeal. He informed the Ministry on 31.3.1998 to file appeal in the Court of learned District Judge. Another Advocate was appointed on 1.4.1998. Wakalat Nama (Power of Attorney) was signed and attested on 6.4.1998, but appeal was filed on 11.4.1998.
Application for condonation of delay was also signed on 6.4.1998, but was filed on 11.4.1998. The learned Appellate Court did not find any convincing explanation for condonation of delay and declared the appeal hopelessly time-barred. He, therefore, after referring to the merits of the case, also dismissed the appeal, vide his judgment and order dated 12.4.1999, impugned in this Revision Petition, while deciding Appeal No, 17/13 of 1998 instituted on 11.4.1998. Prima facie, the suit was to be instituted within one month from 21.11.1997, and after adding the period of obtaining copies to it. But the appeal was filed on 11.4.1998 inspite of the fact that copies were delivered on 3.2.1998:
7. Delay was condoned in the case of Chief Land Commissioner, Punjab, Lahore vs. Makhdoom Syed Nazar Hussain Shah and 13 others (1975 SCMR 352) with the following observations:-- "This petition is barred by four days" and "The dalay, it seems has been due to the negligence of the dealing officials in the office of the Land Commission. In the application for the condonat on of the delay, this has admitted and it has been mentioned that action has been initiated against the defaulting officials. In the circumstances this short delay of four days can be excused. The delay is, accordingly condoned."
The explanation, that the delay was due to negligence of the official, was inadvertent and unintentional and action had been initiated against the defaulting official, was found convincing.
8. Delay of 208 days was condoned in the case of Ch. Manzoor Elahi vs. Federation of Pakistan etc. (PLD 1975 SC 66) with the observations that public interest was involved in the case, there was plausible explanation forthcoming for the condonation of delay, and constitutional question of public importance regarding the jurisdiction of the Supreme Court and High Courts was involved in the case. Delay of several months was condoned in the case of Syed Ahmad Hussain vs. The Chief Justice and Judges of the West Pakistan High Court (PLD 1961 SC 162) at the time of granting of the special leaving on sufficient grounds, and the august Supreme Court of Pakistan declined to interfere with the order of condonation.
9. In Superintendent of Central Excise, Lyallpur vs. Ch. Faqir Hussain (PLD 1958 SC (Pak.) 167, it was mentioned in the petitioner for condonation of delay that extra time was needed for consultation in a number of officers including the Ministry of Law of the Government of Pakistan and for the engagement of special Counsel. It was, however, observed:-- "No extended period of limitation is provided for Government, as litigants before this Court. This is because it is felt that enjoying unusual facilities for preparation and conduct of their case, as against those available to private litigants, Governments do not need any greater latitude in respect of limitation than the ordinary litigant. The reasons advanced for delay are not, in our opinion, convincing, and we wish to emphasize the necessity for as great vigilance on the part of Governments in these matters as the Court is entitled to expect from, and enforces against, private litigants."
It was observed in the case reported as 1975 SCMR 91 "As observed by this Court in more than one judgment, Government is not entitled to any preferential treatment as compared to ordinary citizens in adjudication of civil matters", observation of the Apex Court in the case cited as 1975 SCMR 277(1) was "As valuable proprietary rights have come to be vested in the respondent, we do not find it a fit case to condone the delay. The petition is dismissed as barred by time."
10.It was observed in the case reported as 1981 SCMR 37 "The time said to have been spent during which the various authorities were examining the matter with a view of decide whether an appeal should or should not be filed cannot be excused. This Court has repeatedly laid down that so far as the limitation is concerned, the Government cannot claim to be treated in any manner different from an ordinary litigant. In fact, the Government enjoys unusual facilities for the preparation and conduct of their cases and their resources are much larger than those possessed by ordinary litigants. If inspite of these facilities the Government cannot comply with the requirements of the law of limitation, then it is to take step to have that law (changed)". The precedents in the cases cited as 1979 SCMR 45 and 1979 SCMR 191 were referred in this respect.
11.While deciding the case Custodian of Enemy Property vs. Hoshang M. Dastur and others (1995 SCMR 191), the august Supreme Court of Pakistan distinguished the cases reported as PLD 1975 SC 66 and PLD 1961 SC 162, and took into consideration the cases reported as PLD 1958 SC (Pak.) 167, 1974 SCMR 38 and 1975 SCMR 91. It was observed therein by the Apex Court "Inspite of this the petitioner did not show due diligence in filing the petition for leave to appeal."---"Most of the precious time was wasted in routine in repeatedly writing to the Law Division asking them to reconsider their advice." and "It was also argued before us on behalf of the petitioner that this is a hard case in which very valuable property has been disposed of by specific performance for inadequate consideration and on onerous terms under the impugned decree. But it was held in Mst. Hajran vs. Sardar Muhammad that the mere fact that valuable rights of the petitioner are involved, is by itself no proper ground for condonation of delay in civil matters." The case of Hajran is reported as PLD 1970 SC 287. The ruling of this Court reported as PLD 1998 Peshawar 21 on the subject is mentioned to further strengthen the view taken in this case.
12. As a result of the above discussion, in the light of the judgments of the august Supreme Court of Pakistan, it can be safely held that (a) the law of limitation as provided in the Limitation Act, 1908 is to be strictly observed because delay in initiating legal proceedings provides valuable rights to the opposite-party which, once accrued, cannot be snatched by the same opposite-party on any existing ground whatsoever, and by an other party except through due process of law on establishing rights and liabilities in accordance with law, (b) the law of limitation is equally applicable to the Government, Federal or a Provincial, and to all the litigants who are entitled to be dealt with in accordance with the provisions of Articles 4 and 25 of the Constitution of the Islamic Republic of Pakistan, (c) the period of limitation is not to be condoned except on convincing explanation, specially unavoidable circumstances, legal disabilities, importance of litigation in the general public interest, or innocent lapse or fault inspite of advertence and due diligence, and the like, and (d) the mere fact that valuable rights of the plaintiff/petitioners are involved in the matter, is not good ground, by itself, for condonation of delay.
13. In the light of the above, there is no other option but to hold that the impugned order of the learned Appellate Court is based on correct understanding of law and proper appreciation of record on the file, which order neither suffers from any illegality or material irregularity, nor is perverse, or the result of misapplication/non-application of power of jurisdiction, nor based on misreading, nonreading or over-reading of any evidence. The impugned order, therefore, does not call any interference by this Court no revision. I, accordingly, dismiss the present Revision Petition, leaving the parties to bear their own costs of litigation throughout.