C.M.NO.02 OF 2017 This application in terms of Section 5 of The Limitation Act, 1908 seeks condonation of delay in filing the appeal, which is barred by 31 days.
2. Learned Law Officer submits that delay in filing of appeal is the result of non-availability of certified copies of necessary documents as well as delayed sanction to file the Intra Court appeal. He added that law favours the adjudication on merits and the government could not be penalized on account of act of delinquent officials. In support of his contentions, learned Law Officer has placed reliance on "GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Industries Commerce and Mineral Development, Peshawar and others v.
FRONTIER CHEMICALS INDUSTRIES RAM BAGH, MARDAN" (2016 SCMR 1410).
3. We have heard learned Law Of ficer at some length and perused the record.
4. The respondent/ writ petitioner filed a writ petition averring therein that he applied for the post of Tubewell Operator in Agronomic Research Centre, Khanewal and after completion of the process, he was declared as successful candidate as per merit list dated 19 September , 2017 securing highest marks but due to imposition of ban on recruitments after 31 December , 2007, no appointment letter was issued in his favour . The writ petition was allowed by the learned Single Judge in Chamber vide judgment dated 11 September , 2017, which is impugned herein.
5. It is an admitted fact that the writ petition was allowed vide judgment dated 11 September, 2017 directing the appellants to issue appointment letter in favour of respondent No.1 within 30 days on the basis of recommendations dated 19 September, 2007 prepared by the departmental selection committee.
6. In view of stance taken by the learned Law Officer, we have gone through the record, which reflects that copy of the judgment was applied on 24 October , 2017, which was delivered on 25 October , 2017 whereas the Intrath st th th th th th Court Appeal was filed on 3 November , 2017. Article 151 of The Limitation Act, 1908 provides 20 days for filing an appeal from a decree or order of a High Court in exercise of its original jurisdiction. As already observed that judgment was passed on 11 September , 2017 whereas application for obtaining certified copies was moved on 24 October , 2017 after 43 days of the passing of the judgment. Period of 20 days prescribed under Article 151 of The Limitation Act, 1908 was clearly elapsed on 1 October , 2017 and the copies were thus applied after lapse of 23 days of the limitation period.
7. Law is well settled that limitation of 20 days provided under Article 151 of The Limitation Act, 1908 for filing appeal mentioned therein would start running from the date of decree or order passed by the High Court in its original jurisdiction. There is no ambiguity or disparity in Article 151 of The Limitation Act, 1908 for reckoning the said period. Thus, the time spent in obtaining certified copies of the relevant record would not be excludable from the period prescribed for filing the Intra Court Appeal. In the case of "KHAWAJA MUHAMMAD AFZAL and another v. SH. MUHAMMAD SADIQ and others" (1998 SCMR 179), the Hon'ble Supreme Court of Pakistan, while dilating upon the issue in hand, held as under: - "It is well established that once time has begun to run it does not stop. The time for filing the Letters Patent Appeal having already expired neither the time spent in pursuing the review application nor the time spent in obtaining copy of the order passed by the Single Judge could be deducted from the period of 20 days. Similarly the time spent in obtaining copy of the order rejecting the review application could not be deducted as under the Rule it was not necessary to file copy of that order alongwith the memorandum of the Letters Patent Appeal. In computing the time for filing the Letters Patent Appeal the High Court had thus fallen in error ."
The above view was adopted by this Court in the case of "ASHIQ HUSSAIN SABRI v. SECRET ARY HEAL TH, GOVERNMENT OF THE PUNJAB" (PLD 201 1 Lah. 490 )
8. In the case of "MINISTR Y OF DEFENCE and 3 others v. MUHAMMAD ATHAR" (2013 MLD 1284 ) while dealing with scope and the impact of Article 151 and Sections 12, 14 of The Limitation Act, 1908, it was held as under: -
6. "The limitation provided for filing an appeal from a decree or order of a High Court in the exercise of its original jurisdiction is twenty days from the date of decree or order as provided under Article 151 of the First Schedule provided under section 3 of the Limitation Act, 1908. Column No.3 of the said Schedule is meant for mentioning of time from which period begins to run and against Serial No.151 in Column No.3, the starting period is given as "the date of the decree or order" and the present filing of appeal is not given any relaxation for exclusion of the period spent in obtaining the certified copies of the relevant record."
7. The judgment passed by the learned Single Judge was delivered on 6-5-201 1. On behalf of the appellants, an application for obtaining certified copies of the relevant record was made on 12-5-201 1 and the record was prepared in shape of certified version on 17-5-201 1. CPLA was filed on 9-7-201 1, which was the 58 day of passage of the judgment by the learned Single Judge of this Court in Writ Petition No.7537 of 2009.
8. The Hon'ble Supreme Court of Pakistan when disposed of the said CPLA, made certain observations, which are of significance for the purposes of disposal of the present Civil Miscellaneous seeking condonation of delay in filing of Intra Court Appeal. The order was passed by the Hon'ble Supreme Court of Pakistan on 24-9-2012 in presence of both the parties and it is clearly noted that it was never disputed before the apex Court that the judgment passed by the learned Single Judge was amenable to Intra-Court Appeal. It is also noteworthy that when the CPLA was ordered to be converted into ICA, it was ordered to be sent back to the High Court for "decision in accordance with law subject to all just and valid objections".
9. The CPLA was allowed to be convert ed into ICA and at the cost of repetition the date of filing CPLA is once again provided viz. 9-7-201 1. When the CPLA was converted into ICA and the same is being heard by us as ICA, the date of filing CPLA must be taken as a date of filing of ICA. As noted earlier , the date of filing of CPLA was the 58 day from the date, when the learned Single Judge passed the judgment in Chambers on 6 5-201 1.
10. Although there is no concept of exclusion of the time spent in obtaining the certified copies of the relevant record in case an ICA is to be filed, never theless after exclusion of the said period of six days (from 12-5-201 1, the date of submission of form in Copying Agency for obtaining certified copies of relevant record to 17-5-201 1; when the copies were prepared), even then, it would become 52 day, when the ICA was considered to have been filed.rd th th st th th nd Keeping in view the period of limitation provided under Article 151 of the Limitat ion Act, 1908 the ICA was thus barred by 132 days on the date of its filing.
11. The Hon'ble Supreme Court of Pakistan while converting the CPLA into ICA and by remitted the same back to the Court, left it open for this Court to decide the appeal in accordance with law subject to all just and valid objections, thus, we can examine the objection raised by the respondent with regard to the limitation.
The Hon'ble Supreme Court of Pakistan in case of "Mst. Khadija Begum and 2 others v. Mst. Yasmeen and 4 others (PLD 2001 Supreme Court 355) while dealing with the question of limitation has categorically held that sufficient cause must be shown by the person seeking condonation of delay , which means "circumstances beyond control of party concerned" and that, nothing shall be deemed to be done in good faith which is not done with due care and attention.
13. The Hon'ble Supreme Court of Pakistan in case of Federation of Pakistan and 2 others v. Khurshid Ahmed and another (1999 SCMR 664) has dealt with the question of availa bility of ICA or otherwise and interesting factor is that in the reported matter , the General Headquarters (GHQ) was a party to the litigation and after such authoritative findings by the Hon'ble Supreme Court of Pakistan, the General Headquarters must become wiser and aware of the remedy available under the law but notwithstanding such position a remedy by way of CPLA was availed, while ICA was unde niably available to the aggrieved party . It is a settled position of law that in case of time barred proceedings, defaulting party must explain the delay of each day caused in preferring a valid proceedings in accordance with law ."
9. A party , while seeking condonation on account of limitation, has to explain delay of each and every day as the question of limitation is as important as the jurisdiction of the Court. In terms of Section 3 of The Limitation Act, 1908, it is the bounden duty of every Court to take notice of the question of limitation, even if not raised in defence by the contesting party . Reliance in this respect, if need, can be placed on "UNITED BANK LIMITED and others v.
NOOR-UN-NISA and others" (2015 SCMR 380 ).
10. While adverting to the contention of learned Law Officer that lenient view shall be taken while pressing the hurdle of limitation in the way of governm ent, it is observed that each and every case has its own facts. The Courts are obliged to decide the lis on the basis of available material and keeping in view the conduct of the parties in the said matter . No cavil that in case of "GOVERNMENT OF KHYBER PAKHTUNKHW A through Secretary Industries Commerce and Mineral Development, Peshawar and others v. FRONTIER CHEMICALS INDUSTRIES RAM BAGH, MARDAN" (2016 SCMR 1410 ), the Hon'ble Apex Court condoned the delay of 41 days in filing the petition by the Government of Khyber Pakhtunkhwa but while going through the facts of the said case, we are in agreement that the same are clearly distinguishable to the facts in hand. In the present case, though a plea has been taken that delay in filing of appeal is the result of non-availability of certified copies of necessary documents as well as delayed sanction to file the Intra Court appeal but no cogent material is available to this effect and only a general and bald assertion is made, which is not sufficient for extending the discretion in each and every case where the government is confronted with the question of limitation.
11. While examining the question of limitation on the above prospective, we have noted that the only reason assigned in the application is that time was consumed due to non-supply of the necessary certified copies as well as delayed sanction from the concerned quarters. The reason so pleaded is apparently fallacious and without substance as the copies were even applied after the expiry of limitation prescribed under Article 151 of The Limitation Act, 1908. Mere bald and general assertions are not sufficient justifying condonation of delay on the part of government or its functionaries.
12. There can be no distinction between an ordinary litigant and the government institutions in the matter of limitation. Every statute is meant to eliminate the discrimination and government institutions cannot be given preferential status before a Court of law. We are cognizant of the fact that principles of natural justice are founded on the equality of the citizens, which is even guaranteed under Article 25 of The Constitution of Islamic Republic of Pakistan, 1973. The State or Government cannot be treated differently unless such privilege is extended through a lawful statute. Reference in this respect can be made to "FEDERATION OF PAKISTAN through Secretary, Ministry of Foreign Affairs, Government of Pakistan, Islamabad and 5 others v. JAMALUDDIN and others" (1996 SCMR 727), "FEDERATION OF PAKISTAN through Secretary, Ministry of Finance v. NIAZ AHMAD" (1997 PLC (C.S.)
750) and "PAKISTAN RAILWAY ADVISOR AND CONSULTANCY SERVICES (PRACS) RAILWAY BURT INSTITUTE v. Ch. MUHAMMAD HUSSAIN" (2003 CLC 81).
13. The nutshell of above discussion is that instant application is without any substance. Resultantly the same is dismissed .
C.M.NO.01 OF 2017
14. This application seeks interim relief.
15. For the reasons recorded in order of even date passed in C.M.No.02 of 2017, instant application has become infructuous. The same is accordingly dismissed .
MAIN APPEAL.
16. For the reasons recorded in order of even date passed in C.M.No.02 of 2017, instant Intra Court Appeal is dismissed in limine being barred by time.