1. MUSHTAK Au KAZI (CHAIRMAN).-The appellant a Superintending FnsIneCr in Sind was dismissed from service under paragraph 3(1) of Martial Law Regulation No, 58 of 1969 by Government of West Pakistan under notification dated 14th April 1970. The appellant made a representation to the Government and took no further action even after the Service Tribunals had been created, for the reason that the Tribunal had taken the view that in the cases falling under M. L. R. 58 they had no jurisdiction. After about 10 years one such appeal filed in the Supreme Court against the orders of the Service Tribunal was decided and it was held by the Supreme Court in that case M. Yameen Qureshi v. Islamic Republic of Pakistan , that the Service Tribunal had jurisdiction to hear the appeal against such orders under MLR-58 if the impugned orders were passed without jurisdiction or were coram non judice or mala fide.
2. The appellant has thereafter preferred this service appeal for the first time before this Tribunal on 24th November 1980 i,e, about 9 (nine) months after the decision. Along with this appeal an application has been filed under section 5 of the Limitation Act, for condoning the delay on the ground that the Supreme Court decision was published in March Part of PLD in which it was held that the Service Tribunal had jurisdiction to hear the appeal in cases of civil servants dismissed under MLR-58. The appellant has given no reasons for not filing this appeal promptly after the said decision was published in the March Part of PLD till the filing of this appeal on 24th November, 1980.
3. This Tribunal had considered the question of limitation in another similar appeal of Captain (Retd.)
4. Muhammad Fazal Qadeer v. Pakistan, Appeal No, 31 of 1980, and taken the view that the appeal was clearly time barred as 10 years delay upto the time of the decision of the Supreme Court and1 the delay of several months after the decision till the filing of the appeal, could not be contdoned under section 5 of the Limitation Act. The grounds of the decision mentioned in the judgment would also be applicable to the case of the present appellant and they are therefore, reproduced as under:- "The grounds that have been urged for condoning this enormous delay are two-fold. Firstly that the jurisdiction of the Tribunal in such matters remained in controversy until the above decision of the Supreme Court and secondly that the dismissal order was'an action taken under Martial Law Regulation 58 of 1969 which regulation was illegal and the action taken was a nullity in law. That the provisions of section 5 need not be examined at all, if the impugned order is without jurisdiction and void. Reliance has been placed on the decisions reported in PLD 1973 Quetta 1 and PLD 1969 Lah. 1039.
5. The entire question which is being agitated has been thoroughly dealt with in the decision of Supreme Court in M. Yamin Qureshi v. Pakistan. In that case the appellant had come in appeal against the order of the Central Service Tribunal dismissing the petition of the appellant on the ground of ouster of jurisdiction. It has been shown in this decision by reference to the earlier authorities namely Asma filani's case , Zia-ur-Rehman's case , Saeed Ahmnd Khan's case and the relevant Articles in the Constitution, in respect of action taken under Martial Law Regulation 58 of 1969 the following position emerges :-
(i) Under Article 270(3) of the Constitution of 1973, validity of such instruments could not be called in question in any Court on any ground whatsoever for a period of 2 years from the commencing day of the Constitution of 1973.
(ii) Martial Law Regulation 58 of 1969 was not validated during this limited period of 2 years and the same instrument had lapsed. WO The position with regard to the orders made, proceedings taken and acts done under regulation 58, however had been saved under clause (4) of article 270 under the doctrine of necessity. All transactions past and closed had been condoned.
(iv) Such immunity however dia not extend to acts and actions which were, without jurisdiction, Coram non judice or mala fide.
(v) That the orders made incompetently without jurisdiction would not be covered by the ouster clause and the Service Tribunal therefore had jurisdiction to decide all questions of law and facts as mala fide orders were not immune from being challenged.
6. In the above case 'under decision no question regarding limitation was involved. The appeal was filed before the Service Tribunal in time, and from the decision of the Tribunal, the appeal was preferred to the Supreme Court under Article 212 of the Constitution. The question therefore arises whether the present appeal to the Tribunal filed for the first time after more than 10 years of the order of dismissal can be admitted by condoning the delay, because of the new exposition of law by the Supreme Court, that the orders passed under M. L. R. 58, can be challenged before Service Tribunals on the ground of want of jurisdiction and mala fides. The trend of decisions of the Courts on this question has been, that a new statement or exposition of the law by the superior courts is not sufficient cause for excusing such delay. And so, where a party against whom a decision is given apparently satisfied for the time being, but subsequently a new statement or exposition of law favourable to his case having been given in a judgment in another case, he comes to prefer an appeal or an application for review, his delay will not be excused on the groumd. (H. C. Mitra's Commentary on Limitation Act, 15th Edn., p. 71). Mowri Bewa v. Soorendra Nath . In Basdeo v.
7. Murlidhar Sing , Aggarwal, J. Observed :- "It was held in 10 W R 178 that a new statement of the law by the High Court was not sufficient excuse for delay in applying for a review of judgment, that is still less an excuse for delay in appealing against a judgment. I am therefore of opinion that the fact that this Court in March 1942 was of opinion that a second appeal lay is no ground for excusing the delay in filing the appeal.2 3 4 5 6 Had the preset petitioners appealed, their appeal would have been dismissed on the ground that no appeal lay and they could not apply for review of the judgment dismissing their appeal. A new ruling is no ground for reviewing a previous judgment. If it were, much inconvenience and confusion would be the result. If a judgment be liable to be reviewed on the ground of a new ruling, it can be reviewed even if the new ruling is made a long time after the decision of the case and there should be no difference in principle in reviewing a judgment after a month or two or after forty or fifty years. If a judgment can be reviewed after such a long time, the title of many persons would be insecure."
8. The fact that Court takes a different view of law in a subsequent case is no ground for reviewing the judgment in a prior case, AIR 1957 Raj. 165-1 L R 1956 Raj. 6.
9. In the present case the judgment of Supreme Court was announced' on 22nd January 1980 and even thereafter the service appeal has been filed after a delay of 4 months. There can be no explanation at least for this period, even presuming that the new exposition of law may be considered as a sufficient cause.
10. The other ground, of the order being a nullity and a void order, has also no application to the present case. Under Article 270(4) of the Constitution 1973, such transactions past and closed cannot be re-opened and have been saved. The Quetta and Lahore decisions have therefore no application to the facts of this case. The Quetta decision was in a case under the Rent Restriction Ordinance, where the Rent Controller passed an order when there was no relationship of landlord and tenant between the parties and the order was without jurisdiction. The Lahore decision was given in a case under Settlement Act in which too, the order was without jurisdiction."
11. Sufficient opportunity was given to Mr. Kazi Abdul Rahim appearing for the appellant in this case to enable him to distinguish the facts of the present appeal filed by him or to produce any further decisions to the contrary in his favour, Mr. Kazi Abdul Rahim has made a statement, that the facts of this appeal are similar to Appeal No, 31 of 1980 already decided by this Tribunal and that he has no further arguments to urge, because he has not been able to find any decisions condoning the delay in such cases. The result is that the appeal is dismissed in limine for the reasons stated. P D 1980 SC 22 PLD 1972 SC 139 PLD 1973 SC 49 PLD 1974 SC 151 10 W R 178-2 Beng. LR AC 184-n AIR 1941 Oudh 447