Kh. Muhammad Nasim, J.--Through This petition, the petitioner sought leave against the Judgment of the High Court dated 13.12.2022, whereby the writ petition filed by the petitioners herein, has been dismissed in limine.
2. The succinct facts for disposal of the instant petition are that the private respondents herein, filed a declaratory suit along with possession in respect of disputed land compromising Survey No. 287, measuring 5 kanal 10 marla situated at Rawalakot before the Senior Civil Judge Rawalakot. The petitioners, herein, filed written statement and refuted the claim of the respondents in toto. In the light of the pleadings of the parties, the learned trial Court framed issues and directed them to lead evidence pro and contra. At conclusion of proceedings, the learned trial Court decreed the suit in favour of the respondents herein, vide judgment and decree dated 29.06.2018. Respondents, herein, filed an application for execution of decree dated 29.06.2018 before the Senior Civil Judge Rawalakot. Feeling aggrieved from the order of execution of decree dated 05.08.2020 and warrant of possession dated 06.08.2020, passed by the learned Senior Civil Judge, the petitioners Herein, filed an appeal before the District Judge Rawalakot, Poonch on 04.09.2020. The learned District Judge Rawalakot, Poonch dismissed the appeal vide judgment dated 30.09.2020 on the ground that the same has been filed incompetently. The petitioners, herein, challenged the judgment and decree passed by the Senior Civil Judge Poonch dated 29.06.2018 and judgment of the District Judge Poonch dated 30.09.2020 and warrant issued by executing Court dated 06.08.2020 by way of writ petition in the High Court. The learned High Court dismissed the writ petition in limine, vide impugned judgment dated 13.12.2022 which is the subject matter of the instant petition.
3. Sheikh Attique-ur-Rehman the Legal Advisor appearing on behalf of the petitioners submitted that the impugned judgment is based on non-appreciation of the record which is not sustainable in the eye of law. He further submitted that both the Courts below dismissed the appeal and writ petition on technical grounds rather to decide the same on merits. He contended that it is consistent view of the superior Courts that technicalities should not be made hurdle in the dispensation of the justice but the Courts below have not taken into account this settled principle of law. He added that important legal proposition is involved in this case hence grant of leave is justified.
4. On the other hand, Sardar Muhammad Riaz Khan, Advocate, the learned counsel for the respondents strongly opposed the arguments advanced by the learned Legal Advisor while submitting that the impugned judgment is perfect and legal and the same has been passed after due application of mind. He further submitted that the appeal was filed before the District Judge without sanction of the Government, hence, the same has rightly been dismissed as being filed incompetently. He added that the petition is also barred by limitation. No question of public importance is involved in this petition which is a pre-requisite for grant of leave and prayed for dismissal of the petition for leave to appeal.
5. We have heard the arguments of the learned Advocates representing the parties and perused the record made available along with the impugned judgment. A perusal of the record reveals that the judgment of the High Court was pronounced on 13.12.2022, whereas, the petition for leave to appeal has been filed on 18.02.2023, thus, the petition was lodged after a period of 66 days, whereas under law, the period of limitation for lodging the petition for leave to appeal is fixed as 60 days under Order XIII of the Supreme Court Rules, 1978. The petitioners applied for obtaining the relevant copies of the impugned judgment and memo of writ petition before the High Court on 09.02.2023 and the same were furnished to them on 13.02.2023. This shows that even after excluding the period spent in obtaining the relevant copies, the petition is barred by one day, for which no explanation whatsoever has been furnished in the memo of petition before this Court.
Neither any application for condonation of delay nor any affidavit has been filed by the petitioners furnishing any plausible explanation for the delay. Thus, the petition is barred by limitation and the same entails dismissal on the sole ground. This Court in a case reported as "Muhammad Javaid & another vs. Shamim Akhter" [2003 SCR 431, has observed as under: "This petition for leave to appeal is barred by limitation of two days. The same is therefore incompetent and as such is liable to be dismissed. I therefore under accordingly for the dismissal for petition for leave to appeal."
6. Furthermore, the perusal of the record also reveals that the learned District Judge Poonch has not decided the appeal on merits rather the same has been decided on the sole ground that the appeal was incompetently filed. The learned District Judge Poonch observed that the appeal was filed without the sanction of the Government as is required under Rule 29 of the Azad Jammu and Kashmir Law Department Manual, 2016. The petitioners, herein, challenged the order passed by the District Judge Poonch dated 30.09.2020, judgment and decree dated 29.06.2018 passed by the Senior Civil Judge Rawalakot, and warrant issued by the trial Court by way of writ petition before the High Court. The learned High Court dismissed the writ petition in limine vide impugned judgment dated 13.12.2022, on the sole ground that the appeal before the District Judge was filed incompetently. The record shows that no plausible explanation could be offered before the District Judge that as to why the appeal was filed without proper sanction which is the requirement of law.
It is also admitted position that for filing appeal before the District Judge, no sanction was brought on the record within the stipulated statutory period. In this state of affairs, the learned High Court has committed no illegality while dismissing the writ petition in limine. This view finds support from a case reported as "Commissioner Division Poonch & 3 others vs. Mushtaq Sadiq & 3 others"
[2019 SCR 97] wherein, this Court has observed as under: "From the perusal of the above, it reveals that no explanation could be offered before the High Court that as to why the appeal was filed without proper sanction, which is the requirement of law.
It is also an admitted position that for filing the appeal no sanction was brought on the record within stipulated period of time. The learned High Court has committed no illegality while dismissing the appeal. We agree to the argument of the counsel for the respondent and are justify to hold that the appeal filed before the High Court was incompetent. The arguments addressed by the counsel for the appellants on merits cannot, therefore, be considered. With these observations, the appeal stands dismissed."
7. An identical proposition came under consideration of this Court in a case reported as "Department of Agriculture & another vs. Raees Khan & 8 others" [2015 SCR 1501] wherein, it has been observed as under: "I have heard the learned Additional Advocate-General and the counsel for the respondents at some length and gone through the record made available along with the impugned judgment. The appeal has not been decided on merits rather the same has been decided on the sole ground that the appeal before the High Court was incompetently filed. The learned High Court has observed that the appeal was filed without sanction of the Government as is required under Section 34 of the Azad Jammu and Kashmir Law Department Manual, 1984. From the perusal of record, it reveals that against the judgment and decree of the Additional District Judge, an appeal was filed on 02.01.2012, before the High Court which was drafted and argued by Mr. Imtiaz Hussain Raja Advocate. At the time of hearing the appeal, a preliminary objection regarding competence of appeal was raised by the learned counsel for the respondents that the same has been filed without Government sanction. When the learned High Court confronted the position with the learned counsel for the petitioners, he admitted that the petitioners engaged him as a counsel without permission of the Government. The learned Additional Advocate-General has also admitted before this Court that at the time of filing of appeal before the High Court the counsel for the petitioners, i.e., Imtiaz Hussain Raja, Advocate, was not equipped with the sanction of the Law Department. However, he submitted that the Government sanction was under process, but not opportunity was provided by the learned High Court to the petitioners for placing the same on record. The stance of the learned Additional Advocate-General is not supported by any document. As the learned counsel for the petitioners has not made any request before the high Court for placing the same on record rather, he conceded that he has engaged by the petitioners without getting permission of the Law Department. The copy of notification dated 15.03.2012, referred to by the Additional Advocate- General before this Court cannot be considered as the same has been obtained after filing of appeal before the High Court. It may be observed here that Law is equal for everybody. The special treatment cannot be extended to the Government Functionaries. In this regard reliance can be placed to a case reported as "Deputy Collector of Customs and two others vs. Muhammad Tahir and another" [PLJ 1989 SC 411] wherein, it has been observed that: "It has recently been held by this Court that the petition on behalf of the Government functionaries in matters involving Government interest or public interest, the petitioners no doubt would be treated at par with ordinary citizens but they would be given the same concessions and considerations as given to the other citizens."
8. In this state of affairs, the learned Legal Advisor has failed to substantiate any legal question of public importance which is pre-requisite for grant of leave, therefore, the petition for leave to appeal stands dismissed.
9. Before parting with the judgment, we would like to direct the Secretary Law, Justice, Parliamentary Affairs, and Human Rights Department to look into this serious lapse on the part of the Law Department and Education Department that why the Judgment passed by the Senior Civil Judge Rawalakot dated 29.06.2018 has not been challenged within time by way of appeal before the District Judge Rawalakot and while filing appeal against the orders of the executing Court the sanction was not accorded. Moreover, the outcome of inquiry shall be communicated to this Court through the Registrar. within a period of 2 months from the communication of the order of this Court. A copy of this judgment shall be sent to Secretary Law, Justice, Parliamentary Affairs, and Human Rights Department for compliance.