1. IRFAN SAADAT KHAN, J.---This High Court Appeal (HCA) has been filed impugning the judgment passed by the learned Single Judge in J.M. No.53 of 2017, dated 19.04.2019.
2. At the very outset, the HCA is found to be hopelessly time barred. Mr. Aley Maqool Rizvi, AAG appearing in this matter on behalf of the appellants was directed to firstly address the Court so far as the limitation is concerned, to which he stated the order of the learned Single Judge since is void, hence, no limitation runs against a void order and, therefore, by allowing application under Section 5 of the Limitation Act (the Act), the instant matter may be heard on merits.
3. We have heard the learned AAG at some length and have also perused the record.
4. It is noted that judgment /order of the learned Single Judge was that of 19.04.2019 whereas, the department applied for its certified copy on 29.04.2019 i.e. after ten days' time. The copy thereafter was supplied on 12.06.2019 i.e. during vacation period. The High Court resumed after vacations on 05.08.2019. The department was left with further ten days to file this HCA by 15.08.2019, as the limitation for filing the appeal before the High Court as given under Article 151 of the Act is twenty days. Now if ten days from 19.04.2019 to 29.04.2019 and ten days from 05.08.2019 to 15.08.2019 are considered then on 16.08.2019 this HCA had become time barred, whereas admittedly the instant HCA has been filed on 05.10.2019, which in the present circumstances appears to be hopelessly barred by almost fifty days.
5. Perusal of the record clearly reveals that the person filing the instant HCA i.e. Syed Sahib Ali Shah Bukhari was given the Authority Letter on 08.08.2019 to file the appeal and defend the Government interest accordingly. On 09.08.2019 he got an affidavit sworn but it is interesting to note that no appeal was filed as had this HCA been filed prior to 16.08.2019 the same would have been within time. What were the circumstances which precluded the said authorized person not to file the HCA in a timely manner, though he was duly authorized by the department on 08.08.2019 to file the HCA and an affidavit in support of memo of HCA was also sworn, had remained an unsolved mystery. However admittedly no HCA was filed and apparently the matter was let to become time barred.
6. It is also interesting to note that the application under Section 5 of the Act was prepared as late as on 30.09.2019 and the same Syed Sahib Ali Shah Bukhari has got sworn the affidavit in support thereof on the same date but still the HCA was filed on 05.10.2019. It is, thus, apparent that there seems to be a negligence either on the part of said Syed Sahib Ali Shah Bukhari, who though was duly authorized by the department on 08.08.2019 to file the HCA and who got the affidavit also sworn on 09.08.2019 but did not file any appeal for the reasons best known to him, which ultimately was filed on 05.10.2019 creating serious doubt over the matter with regard to state of affairs obtaining in the instant case. In our view some responsibility has to be fixed upon the delinquent person as to it was whose responsibility to file the HCA in a timely manner either that of Syed Sahib Ali Shah Bukhari or any other officer who was entrusted with the duty to file the HCA or it was the AG Office which kept the matter pending before it; but the end result is that this HCA is hopelessly and miserably time barred.
7. In the affidavit annexed with the limitation application the only reason given for condonation of delay being that the order of the learned Single Judge is void and no limitation runs against a void order. Perusal of the record reveals that the Suit bearing No. 903 of 2000 for specific performance, declaration, permanent injunction and damages for Rs.5 Crore was filed by the present respondent No.1 against the appellants as well as respondents Nos.2 and 3 (respondent No.3 was added vide court's order dated 15.08.2000). However, it is noted that the appellant No.1, appellant No.4 and respondent No.3 were debarred subsequently. The matter proceeded before the learned Single Judge and thereafter through an application under Order XXIII, Rule 3 C.P.C. a compromise took place between the parties and the learned Court vide order dated 17.03.2011 disposed of the matter when counsel for the plaintiff, counsel for the defendant No.6, Mr. Gul Sher Ahmed Mangi, Director (Exploration) on behalf of D.G Mines and Mineral Development and Ms. Naheed Naz State Counsel were present. The parties admitted the contents of the settlement agreement and their signatures thereon. Mr. Gul Sher Ahmed Mangi, Director (Exploration) endorsed no objection for passing of decree in terms of compromise and the suit consequently was decreed in terms of the compromise. It may be noted that on the said date Director from the D.G. Mines and Mineral Development was present and so also State Counsel and thereafter, in their presence, the suit was decreed. The present appellant then as late as on 13.09.2017 i.e. after almost five and a half years moved an application under Section 12(2), C.P.C. on the ground that they had not presented the application under Order XXIII Rule 3 C.P.C. and hence the order of compromise has been obtained by way of fraud and misrepresentation.
8. Interestingly, before the learned Single Judge also the same plea was taken that no limitation runs against a void, order and the learned Single Judge through an elaborate order, by quoting a number of decisions of the Hon'ble Supreme Court of Pakistan, found the application to be misconceived as well as barred by time and dismissed the same. Before us also a hopelessly time barred appeal has been filed and the same ground that no limitation runs against a void order has been taken. Firstly, as rightly observed by the learned Single Judge that on the date when the compromise order was passed the State Counsel was very much available who did not raise any objection and moreover no less than a Director from the Mines and Mineral Department on behalf of the D.G. Mines and Mineral Development was available who endorsed no objection to the passing of the decree in terms of the compromise and more interestingly, the same GuI Sher Ahmed Mangi was one of the applicant who had filed the application under Section 12(2) C.P.C. as apparent from the list of the applicants in J.M. No.53 of 2017, page 21 of the file. How come a person duly making an appearance before the Court in compromise application can subsequently file an application under Section 12(2) C.P.C. claiming that the order has been obtained by way of fraud and misrepresentation, which legally cannot be done.
9. The contention raised by the learned AAG that no limitation runs against a void order is not an inflexible rule.
10. Reference in this regard may be made to the decision given by the Hon'ble Supreme Court Pakistan in the case of Blue Star Spinning Mills Ltd. v. Collector of Sales Tax (2013 SCMR 587), where a full bench of the Apex Court has observed as under: "The Court specifically adverted to the argument raised by petitioner's learned counsel that no limitation runs against a void order and held that this is not an inflexible rule; that a party cannot sleep over to challenge such an order and that it is bound to do so within the stipulated /prescribed period of limitation from the date of knowledge before the proper forum in appropriate proceedings."
11. It is evident from the above decision of the Hon'ble Supreme Court that a party cannot take refuge for not challenging the order on the ground that it is a void order. It is incumbent upon a party claiming the order to be void to establish invalidity of the said order and also to prove that the order is without jurisdiction. In the instant matter both these aspects are totally lacking, as the learned Single Judge has found the application to be misconceived factually and legally both. On factual aspect he has observed that the A.G. Office was duly represented as far as the compromise is concerned and legally observed that the said application was miserably barred by limitation. It may be noted that non-running of limitation period is not a rigid rule. It is incumbent upon a party to challenge an order in a timely manner as it is a settled proposition of law that if the limitation starts running it does not stop except in certain circumstances which are duly mentioned under Sections 5 and 12 of the Act, which aspects in the present matter are totally lacking, as it could be seen that when the person Syed Sahib Ali Shah Bukhari was duly authorized by the department on 08.08.2019 to file the HCA and to defend the Government interest, who got the affidavit sworn on 09.08.2019, but what precluded this person or any other delinquent person responsible for the delay for filing the HCA as late as on 05.10.2019 without there being any reasonable and plausible justification for the same. The affidavit filed along with the limitation application also appears to be vague as no convincing and cogent reason for the delay has been mentioned rather in a scanty and perfunctory manner it is asserted that no limitation runs against a void order.
12. It is a settled proposition of law that law helps the vigilant and not the indolent and after the expiry of the limitation period a vested right is always created in favour of the other side. Reference in this regard may be made to the decisions given by the Hon'ble Supreme Court of Pakistan in the cases of Muhammad Nawaz and 3 others v. Mst. Sakina Bibi and 3 others (1974 SCMR 223) and Central Board of Revenue, Islamabad through Collector of Customs. Sialkot Dry Port, Samberial District Sialkot and others v. Messrs Raja Industries (Pvt.)
13. Ltd. through General Manager and 3 others (1998 SCMR 307). Once limitation starts it could only be condoned after considering valid and c cogent reasons for the same. Matter has been examined minutely by us, however, unfortunately the factors for condoning the delay are totally lacking in the instant matter. It is also a settled proposition of law that delays are condoned when reasonable and plausible reasons for the same are given but a perusal of the affidavit and the application clearly demonstrate that neither plausible reasons nor justification have been given for filing the HCA late, rather, there is, in fact, no ground either in the affidavit or in the application justifying the cause of delay. It is also a settled proposition of law that it is the bounden duty of the Court to dismiss a lis before it if the same is barred by limitation and no plausible explanation has been furnished, with regard to such delay. We need not to cite decisions or case law on the above legal propositions since the same are quite settled by now.
14. Moreover, it is also a settled proposition of law that in time barred matter each day's delay has to be satisfactorily explained, which aspect too is totally lacking in the instant matter. Reference in this behalf may be made to the following decisions:
1. Commissioner of Income-Tax v. Rais Ahmad Khan (1981 SCMR 37)
2. Nikuleswar Sikdar v. Barun Chandra Chakravorty and another (1971 SCMR 54)
3. Government of the Punjab through Secretary (Services), Services General Administration and Information Department, Lahore and another v. Muhammad Saleem (PLD 1995 SC 396)
4. Province of East Pakistan v. Abdul Hamid Darji and others (1970 SCMR 558)
15. 5.The Deputy Director, Food, Lahore Region, Lahore and others v. Syed Safdar Hussain Shah (1979 SCMR 45)
16. It is also a settled proposition of law that decrees obtained on the basis of consent/compromise are not challengable until and unless the same are proved to be obtained by way of fraud and misrepresentation. In the instant case, as noted above, no occasion either of playing fraud or that of misrepresentation has been pointed out as, firstly, the case was duly represented by Mr. Gul Sher Ahmed Mangi, Director (Exploration) on behalf of D.G. Mines and Mineral Development and the State Counsel and, secondly, how could there be an occasion of playing fraud when all the parties have entered into a compromise by filing a proper application and then duly appearing before the learned Single Judge in support of their compromise application. In- the instant case it is not even remotely suggested that Mr. Mangi, Director (Exploration), who endorsed no objection to passing of decree in terms of compromise, in any way was not representing the D.G. Mines and Mineral Development Department or there were some motivation of fraud or misrepresentation by him so as to prefer the application under Section 12(2) C.P.C.. Neither it has been proved that the contents of the application were unlawful or void nor was it proved that the said application in any way lacks legal sanctity. For application under Section 12(2)
17. C.P.C. the onus heavily lies upon a person filing the said application that the order of the Court has been obtained by way of fraud or misrepresentation, which onus as seen from the impugned order and from the record, is totally lacking. The aspect of giving consent with regard to passing of decree in terms of compromise by the Department's representative in presence of the State Counsel due to pressure being exerted from other side also appears to be not borne out from the record. Are the appellants so naive not to take care of their legal rights to adopt the legal procedure in accordance with law against the other party as available to them.
18. We were able to lay our hands to the decision given by the Hon'ble Supreme Court of Pakistan in the case of Karachi Development Authority v. Messrs Makhdoom Bilawal Cooperative Housing Society and others (2001 SCMR 1277) wherein the Hon'ble Supreme Court of Pakistan refused the leave after observing that in a compromise decree no fraud or misrepresentation was proved and affirmed the order of the High Court. In the case of Zaibun Nisa Habib v. Alley Rasool (1989 SCMR 416) also the petition for leave to appeal was dismissed by the Hon'ble Supreme Court of Pakistan after finding that various orders having been passed, by consent, hence, there was no scope for grant of petitioner's application under Section 12(2) read with Section 151, C.P.C. and the order of the High Court was not interfered with and was found to be in accordance with law in that very case.
19. In the instant case also the suit was decreed as per the terms of compromise application when Mr. Mangi, representative of the Department, and the State Counsel were available when the order on the said compromise application was passed, hence, from the facts obtaining in the instant matter no case of fraud or misrepresentation has been pointed out or made out by the learned counsel appearing for the appellants. The order of the learned Single Judge seems to be in accordance with law and does not warrant any interference on our part.
20. We were also able to lay our hands on a decision given by the Hon'ble Supreme Court in the case of Food Department, Gujranwala through its Deputy Director and others v. Ghulam Farid Awan (2010 SCMR 1899) wherein it was held as under: It is well-settled that the government functionaries are equal before the Courts. No preferential treatment can be shown to the Government/or its agencies. A stock explanation of administrative delays is normally pleaded in the condonation applications. Such explanation does not constitute a sufficient cause or a reasonable ground to be attached any weight or credibility. In fact it constitutes an admission of the guilty neglect of the concerned and thus compounds the ever existing, manage mental inefficiency and lack of decision making in the Govt. offices. Those seeking condonation of delay are under legal duty to explain each day's delay and to show their vigilance to avoid such delays which fatally obviates a valuable remedy. Reference is made to:
(i) East Pakistan v. Abdul Hamid Darji and others (1970 SCMR 558)
(ii) Federation of Pakistan v. Niaz Ahmad (1997 SCMR 959)
(iii) Commissioner of Income Tax v. Rais Pir Ahmad Khan (1981 SCMR 37)
21. Similar observations were also made by the Hon'ble apex Court in the following decisions: 1) Pakistan through Secretary, Ministry of Defence v. Messrs Azhar Brothers Limited (1990 SCMR 1059)
22. 2) The Province of West Pakistan, Lahore v. Mian Noor Ahmad and others (1975 SCMR 91)
23. 3) Government of Baluchistan v. Abdul Nabi and another (1988 SCMR 1906)
24. 4) Federation of Pakistan through Secretary, Ministry of Foreign Affairs, Government of Pakistan, Islamabad and 5 others v. Jamaluddin and others (1996 SCMR 727)
25. We were also able to lay our hands on the decision given by the Hon'ble Supreme Court in the case of Chairman, District Evacuee Trust, Jhelum v. Abdul Khaliq through Legal Heirs and others (PLD 2002 SC 436) wherein the Hon'ble apex Court observed as under:
4. It has been pointed out number of times that cases pertaining to Federal/Provincial Government or autonomous bodies instituted beyond limitation prescribed by law before subordinate Court, High Court and this Court without assigning any justification acceptable under the law for not approaching the Court within time and in the applications seeking condonation of delay, if filed, invariably the plea is taken that time has been spent in completion of departmental proceedings, therefore, delay may be condoned. The concerned department must know that delay of limitation in filing of proceedings can only be condoned if it is sought for on sufficient grounds otherwise in absence thereof no special indulgence can be shown to such department because it is well-settled that no preferential treatment can be offered to the Government department or autonomous bodies. Their cases have to be dealt with same manner as the cases of an ordinary litigant/citizen. In this behalf, reliance is placed on Central Board of Revenue, Islamabad through Collector of Customs, Sialkot Dry Port, Samberial, District Sialkot and others v. Messrs Raja Industries (Pvt.) Ltd through General Manager and 3 others (1998 SCAM 307), Lahore High Court, Lahore through Registrar v. Nazar Muhammad Fatiana and others 1998 SCMR 2376, Federation of Pakistan through Secretary, Ministry of Foreign Affairs, Government of Pakistan, Islamabad and 5 others v. Jamaluddin and others 1996 SCMR 727, Pakistan through Secretary, Ministry of Defence v. Messrs Azhar Brothers Ltd. 1990 SCMR 1059 and Government of the Punjab through Secretary (Services), Services General Administration and Information Department, Lahore and another v. Muhammad Saleem PLD 1995 SC 396.
5. We are conscious that on declining relief either to the Government or public litigant in view of the provision of limitation, serious, injustice is caused to either of the party before the Court but we cannot help it in view of the existing law. However, concerning the cases belonging to the Government/autonomous bodies, at least one thing can be done that if case is decided against it on the question of limitation, the direction must be passed to the high-ups of the department so he/they may initiate departmental action against those officers who are directly or indirectly responsible for causing delay in I instituting the cases beyond period of limitation and even in absence of such directions, it would be duty of such Officer to take action accordingly because if such unscrupulous persons are not proceeded against, they will have no fear of causing huge losses to the Government/autonomous functionaries at the cost of public exchequer because ultimately it is the public at large who suffers, being ultimate beneficiaries of the Government property. (Underlining ours)
26. In view of the explicit observations made by the Hon'ble apex Court, we deem it appropriate to observe that a copy of the order be sent to the Chief Secretary of Sindh as well, for proceeding in accordance with law after real ascertainment as to who was the person or the persons who were instrumental in letting the matter go time barred as they might try to get away with by throwing the burden upon the Court that an ,appeal was filed, though late, but it was the Court which dismissed the same and hence they are helpless.
27. The upshot of the above discussion is that the HCA is found to be wholly misconceived being not only barred by limitation but also not maintainable on the basis of facts obtaining in the instant matter, therefore, the same stands dismissed in limine along with the listed applications.