' ABDUL HAYEE KURESHI, J.-The present appeal under clause 10 of the Letters Patent, as applicable to the erstwhile High Court of West Pakistan, has been filed by the Government of Pakistan to impugn judgment of the learned Single Judge in Reference No, 3 of 1967. Such reference arose out of a reference made by the Deputy Commissioner of Karachi under section 18 of the Land Acquisition Act. By the said judgment compensation at the rate of Rs, 2 per square yard together with the statutory allowance of 15 per cent. Of the amount of compensation and interest at the rate of 6 per cent. Per annum has been awarded to the respondent on account of the acquisition.
2. We have heard Mr. S. A. Hasnain, Advocate for the appellant and Mr. Hassan Akbar, Advocate for the respondent Deputy Commissioner, Messrs Khuda Bux Umrani and Meher Hussain Mesawa for the private respondents.
3. Initially on behalf of the respondents it has been urged that this appeal is not maintainable as the same is barred by Law of Limitation. It has also been contended on behalf of the respondents that this appeal is not maintainable as the Central Government could not have made an application for making a reference and are not a party interested in the proceedings within the meaning of section 3 of the Land Acquisition Act. For the view that we are taking on the point of limitation we have not thought it proper to enter into the other question touching the maintainability of this appeal at the instance of the Central Government of Pakistan.
4. The judgment of the learned Single Judge was announced on 26-7-1969 and an application for the grant of copy was made on 29-7-1979. Such copy was prepared and supplied on 12-8-1969 but the appeal was presented on 3-11-1969. The time allowed for the appeal under clause 10 of the Letters Patent is admittedly 20 days. What is more that ad valorem court-fee was not paid at the time of presentation of appeal so that an objection was raised. An application was then made on behalf of the appellants which came up before a Division Bench consisting of their Lordships Abdul Kadir Shaikh and Muhammad Haleem, JJ. On 18-8-1970. An order was passed which reads as follows :- "Mr. Waheed Farooqui, Advocate for the appellant.
' The application under section 149 read with section 151, C. P. C. Dated 29th May, 1970 is granted, subject to all just exceptions at the regular hearing, on the condition that the deficit court-fee is deposited within one week."
' In pursuance of this order court-fee was supplied on 24-8-1970. The appeal then came up for admission before a Division Bench consisting of their Lordships Dorab Patel and Muhammad Haleem, JJ. On 23-9-1970. On that date the appeal was admitted and notices were ordered to he issued to the respondents "without prejudice to the rights of the respondents on the point of limitation."
5. It is not the case of Mr. Hasnain that the appeal was presented within time, as; such a submission would be ridiculous. He has contended before us that since the appeal had been admitted the question in regard to limitation stood decided and could not be re-opened. Additionally he has also relied upon an affidavit filed by Mr. S. G. H. Rizvi, a representative of the appellants, in support of the application under section 5 of the Limitation Act. We have seriously considered the arguments of Mr. S. A. Hasnain and have not been persuaded to agree that once an appeal is admitted the question of bar by reason of limitation cannot be re-opened. Initially it would appear that even the order of admission was conditional to the objection on behalf of the respondents at the time of hearing. On a later hearing the application under section 5 of the Limitation Act came up for hearing in presence of the Advocates of either party. On that date the Division Bench of their Lordships Qadeeruddin, C. J. And Mir Khuda Bakhsh Marri, J. Passed the following order :- "The Assistant Advocate-General says that he has not been able to contact the Dy. Commissioner and agree with Mr. Waheed Faruqui that the application for condonation of delay may be heard alongwith the main appeal. It is ordered accordingly."
' It would thus appear that the question of limitation had not been decided by the several Benches before which this ease was lain on various dates of hearing. Indeed this question has been left open for consideration. On the other hand if we were to agree with the contentions of Mr. S. A.
Hasnain that as soon as an appeal is admitted the delay in presenting the same stands condoned, the results would indeed be against the spirit of law. At the time of admission the opposite-party namely the opponent or the respondent normally is not present before the Court. If a case is admitted in the absence of opposite-party it cannot be said that the valuable rights acquired by the opposite-party by reason of delay in institution of the cause would be destroyed solely by the fact of the matter having been admitted. The results would indeed be dangerous. On the other hand we have also considered the affidavit of Mr. S. G. H. Rizvi, which has been filed in support of the application under section 5 of the Limitation Act. Paragraphs (3) and (4) of the affidavit reads as follows :- "3. That it was on or about 25th September, 1969 that the Director-General Civil Aviation received a communication from the office of the Deputy Commissioner, Karachi informing him of the decision in the case.
4. That the said communication alongwith the relevant files reache the dealing officer on 14-10- 1969. The dealing officer immediately the next day, forwarded the papers to the Ministry of Defence, in order to enable them to seek the advice from Law Ministry."
On a reading of the two paragraphs conjunctively the position that emerg is that the Director- General of Civil Aviation received a communication from the Deputy Commissioner of Karachi on 25-9-1969 informing him of the decision in the case. This communication together with the other relevant files reached the officer concerned with regard to the litigation on 14-10-1969 viz, after 19 days. Why this time was consumed has not been explained but we have good reason to come to the conclusion that the delay that has been caused is on account of the lack of interest that the concerned officers have exhibited. In this affidavit of Mr. S. G. H. Rizvi nothing has been shown which might constitute a sufficient cause for the condonation of delay, Mr. S. A. Hasnain has additionally stated before us that the delay was a result of wrong advice tendered by the counsel to the Government of Pakistan. We are afraid there is no foundation absolutely for making such a statement. That office to whim the advice was tendered or the counsel who tendered that advice has not filed any affidavit to support such contention.
6. Mr. S. A. Hasnain has additionally contended that the appellant in this case in the Central Government of Pakistan and in cases of this nature the departmental files and correspondence have to emanate and reach several departments before the case could be filed. In other words the contention is that the time should be condoned because the machinery of the Government takes inordinately long time to make arrangements for the filing of cases. We are afraid we cannot possibly take such view in law. We are fortified in or opinion by the pronouncements of the Supreme Court in the case of Province of East Pakistan v. Abdul Hamid Darji and others (1) in which Hamoodur Rehman, C. J. Observed as follows :- "So far as the limitation is concerned, the Government cannot claim to be treated in any manner differently from an ordinary litigant, because of the fact that the Government enjoys unusual facilities for the preparation and conduct of their cases and its resources are much larger. If in spite of these facilities the Government cannot comply with the requirements of the Law of Limitation, then it is for it to take steps to have that law changed and not to ask the Courts to give a different interpretation to its provisions."
' The other case in point is that of Commissioner of Income-tax v. Ravi Textile and Carpet Company (2). Even in this case their Lordships of the Supreme Court observed that the mere fact of the petitioners being Government departments does not entitle them to special indulgence in this respect, as compared with ordinary litigants. After such observation their Lordships proceeded to dismiss the petitions by reason of the same being barred by time. There is still another difficulty in the way of appellant, which arose out of the appeal having been filed with deficit court-fee stamp.
As stated above, originally the appeal was presented on 3-11-1969 and proper court-fee stamp had not been paid. Deficit court-fee was paid only on 24-8-1970 viz. After about 9 months. No explanation whatsoever has been given for such delay in supplying court-fee stamp. Our attention has been drawn to the case of Mst. Sadiqunisa v. Khan Sahib Agha Muhammad Sultan Mirza and 8 others (3) in which the Division Bench had to consider the question arising out of delayed payment of court-fee stamp. The Division Bench in paragraph 5 of its judgment took the view that a memo of appeal cannot be treated as properly presented so long as the proper court-fee is not paid. On such process of reasoning the appeal in that case was found to be {{FOOT NOTE}}
(1) 1970 SCMR 559 (2) 1968 SCM R 115'
(3) PLD 1972 Kar. 105 {{FOOT NOTE}} ' barred by time. In another case from the Karachi Bench of the High Court of West Pakistan, namely H. H. S. Feldman v. The Province of East Bengal (1) similar question arose and the Division Bench came to the same conclusion as the Division Bench in the case of Mst. Sadiqunnissa. The Division Bench went on to observe that the Court should not exercise the discretion under section 149 of the Civil Procedure Code in favour of the party guilty of default for seeking indulgence of the Court. We are in respectful agreement with these weighty pronouncements of the Division Bench. For this reason also we have come to the conclusion that the 'appeal is barred.
7. In the result this appeal is dismissed with costs.
(1) PLD 1970 Kar. 296