' SHER ZAMAN CHAUDHRY, J.-This petition for leave to appeal against the judgment of the High Court passed on 23-6-1983 was, after hearing the learned counsel for the respective parties, dismissed vide order passed on 6-2-1984 which was to be followed by a detailed order later on. So this order is, therefore, to be taken in continuation of the order passed by this Court on 6-2-1984.
2. The facts necessary for the disposal of this petition briefly stated are that this petition for leave was filed on 28-8-1983, by the present petitioners alongwith Azad Government of the State of Jammu and Kashmir. The Azad Government however decided to withdraw the sanction accorded for the filing of petition for leave to appeal. The order to that effect was passed by the Government on 26-9-1983. The petition under the circumstances having been declared incompetent was dismissed on 1-10-1983.
3. The present petitioners feeling aggrieved by this order of dismissal applied for the restoration of the petition for leave to appeal on the ground that the dismissal order, passed on the basis of withdrawal of sanction by the Government, could only be passed in respect of Azad Government.
The whole petition could not, therefore, be dismissed. Mr. M. S. Farooqi, the learned Advocate, himself a respondent and also on behalf of the respondents Nos. 1 and 2 conceded the point and made a statement that the respondents would have no objection if the petition was restored. The petition to the extent it related to the petitioners' interest was restored and on joint request of the learned Advocates for the parties, Azad Government was impleaded as pro forma-respondent.
4. In view of the objections listed in the caveat by the non-petitioners it was decided to first hear the parties on the point as to whether the petition for leave was validly instituted and that it was maintainable ? For its correct perception as well as for its proper determination the proposition is to be considered in the light of following admitted facts. The impugned judgment, to challenge the validity of which leave to file an appeal is sought by the petitioners, was passed by the High Court on 23-6-1983. The petition for leave to appeal unaccompanied by certified copy of the judgment under challenge as well as copy of the memorandum of appeal filed in the High Court and also power-of-attorney from the present petitioners was filed on 28-8-1983. These were, however, filed on 30-8-1983, 1-9-19253 and 30.8-1983, respectively. Since the period allowed for riling petition for leave being 60 days all the documents, listed above, were filed well after the period allowed under law. The petition, according to the respondents, not conforming to rule 3 of Order XIII of the Supreme Court Rules, 1978 was incompetent and as such was liable to be dismissed.
5. Raja Muhammad Hanif Khan, the learned Advocate for the petitioners, frankly conceded that the documents viz, certified copies of the impugned judgment and that of the grounds of appeal in the High Court, could not be lodged alongwith the petition for leave. All the same petition for leave to appeal, argued the learned Advocate, having been filed within the time allowed under law could not be declared as incompetent as nonobservance of the rules, according to him, would merely be an irregularity and not an illegality. He further contended that the rules are always framed and are to be used for the advancement and in aid of justice and not to impede justice. In this view of the matter interest of justice, submitted the learned counsel, would best be served if the powers conferred on it under section 42 of the Interim Constitution Act read with Order XLIII of the Supreme Court Rules were exercised by this Court for condoning the delay if any.
6. Sardar Rafique Mahmood, the learned Additional Advocate-General, while addressing the Court on behalf of the Azad Government stated that the Azad Government accepts the correctness of the impugned judgment passed by the High Court. He further stated that the Ordinance on which the petitioners based their claim, being violative, in the estimation of the Azad Government, to the provisions of Azad Jammu and Kashmir Interim Constitution Act, has been withdrawn from the Statute Book. With regard to the petition for leave to appeal the learned Additional Advocate- General submitted that the petition not being in conformity to the requirement contained in rule 3 of Order XIII of the Supreme Court Rules was incompetent.
7. The points, in view of the submissions made by the learned Advocates for the parties, needing determination are :-
(a) as to whether the filing of at least one certified copy of the impugned judgment, memorandum of appeal filed in the High Court and that of the petition for leave to appeal was mandatory under rule 3 of Order XIII of the Supreme Court Rules or the failure to do so within the period of limitation provided under the rules would be an irregularity ? And
(b) whether the circumstances in the plegent case warrant the condonation of delay ?
8. Having stated the point in issue in its correct perspective we will now proceed to examine the first part of the query. The application of the provisions of the Code of Civil Procedure, except so far expressly provided for, has been barred under Order I, rule 5 of the Supreme Court Rules. Instead, the proceedings in the Supreme Court are to be regulated and controlled by the Supreme Court Rules. Rule 1 of Order XIII of the Supreme Court Rules provides the limitation for filing the petition for leave to appeal whereas rule 3 relates to the documents required to be lodged alongwith the petition for leave to appeal. For the proper perception of the point involved reference to the relevant rules is, therefore, imperative. Order X111, rule 1 of the Supreme Court Rules, 1978 reads "(1) A petition for special leave to appeal shall be lodged in this Court within sixty days of the judgment or order sought to be appealed from or as the case may be within thirty days from the date of the refusal or grant of certificate under section 42 (ii) of the Constitution by the High Court : ' Provided that the Court may for sufficient cause extend the time.
(2) .........................................................................
3. (1) The petitioner shall lodge at least four copies of his petition for special leave to appeal ;
(ii) the judgment and order sought to be appealed from together with grounds of appeal or application before the High Court and the order of the High Court refusing grant of certificate under section 4 (ii) of the Constitution, if any, one copy each of which shall be certified to be correct".
' The provisions contained in the Supreme Court Rules in their essential characteristics correspond to Order XLI of the Code of Civil Procedure.
9. From the perusal of the language employed in rule 3 it becomes. Manifest that the observance of the rule is mandatory and the failure of its A observance, unless condoned on sufficient cause shown, would render th petition incompetent.
10. In the instant case the period allowed for filing the petition for leave to appeal was till the 22nd of August, 1983 whereas it was filed on 28-8-1983. Even if the period spent for obtaining the copy of the impugned judgment was allowed to be commuted the limitation period still at the best could be extended upto the 24th of August, 1983. The certified copy of the High Court judgment having been applied for on 26-7-1983 was issued on 1-8-1983. It was filed in the Court on 30th of August.
Whereas, the copy of the grounds of appeal taken in the High Court was placed on the file on 1st September, 1983. It is interesting to note that even the application for issuance of the copy of the grounds taken in the High Court was filed when the period of limitation for filing the petition for leave to appeal had already expired. The date when the copy was applied for is the 28th o, August, 1983 and it was issued on the 31st of August, 1983. It is that obvious that the required copies were filed after the expiry of the period allowed under law. We, therefore, are in agreement with the learned counsel for the respondents that non-compliance of the mandatory provisions o Order XIII, rules 1 and 3 would render the petition incompetent. It would thus mean that there was no valid institution of the petition within the period of limitation prescribed under the rules. In somewhat similar circumstances the proposition was considered by the Supreme Court of Pakistan in case titled Muhammad Sharif Khan v. Board of Revenue West Pakistan Lahore and another (0. The petition for leave to appeal in the above titled case was filed beyond the period of limitation. The petitioners sought the condonation of delay on the ground that the delay was due to the failure on the part of his counsel to intimate him about the result of his writ petition in the High Court. Mr. Hamood-ur-Rehman, C. J. While considering the proposition observed :- "The petitioners cannot absolve themselves of their own responsibilities by throwing the blame on their learned counsel for the delay. Even assuming that their counsel was at fault, it is the petitioners who are to suffer and not the other side to whom a valuable right has accrued by the lapse of time. We are not prepared to accept that a client's responsibility ceases after he has briefed a counsel to appear on his behalf. It is his duty to keep in touch with his counsel and to find out the progress of his matter. If he .Cannot go personally, it is his duty to make proper arrangement for timely information to be conveyed to him by either the counsel or his clerk".
The petition for leave to appeal not being in conformity with the Supreme Court Rules (1956), Order XLIII, rule 1, was therefore, dismissed as being time-barred. Rules 1 an* 3 of Order XIII of the Azad Jammu and Kashmi Supreme Court Rules are not merely directory but mandatory in nature. C Non-compliance of these rules unless condoned on sufficient cause show would render the petition for leave to appeal incompetent.
11. Coming to the second Part of the query, i. e., whether the circumstances in the present case warrant the condonation of delay? Th. Court no doubt has powers to condone the delay in suitable cases on sufficient cause shown by the party. The Court would generally condos the delay if there exist reasonable circumstances to justify the action. In D cases where because of delay in filing the petition for leave or on account of non-compliance of the mandatory rules certain rights have accrued to a part then the Court has also to take into consideration the interests of 3r party as well because then it is a matter between the Court and the petitioned {{FOOT NOTE}} (1)1970SCMR 76 {{FOOT NOTE}} alone. The Court has to strike a balance between the interests of the respective parties.
12. In the instant case the petition for leave to appeal was neither accompanied by a certified copy of the judgment which was sought to be challenged nor by a certified copy of the grounds of appeal, taken before the High Court, which was the mandatory requirement under the rules. These copies were filed after the period of limitation. Objections on these defect were taken in unequivocal terms by the respondents in their caveat filed in the Supreme Court on the 31st of August, 1983. It cannot be said that the petitioners were not aware of these objections as they had submitted their counter-objections to the caveat on 10-1-1984. No petition for the condonation of the delay in filing the above referred documents has even been moved upto date by the petitioners. As stated in earlier part of this judgment the petitioners never bothered even to apply for the issuance of certified copy of the memorandum of appeal in the High Court till the period of limitation for filing the petition for leave to appeal had already expired. It is a classical case of 'could not careless' attitude on the part of the petitioners. Under the circumstances there exists no justifiable reason in our estimation which could warrant the condonation of delay.
' For the afforested reasons the petition for leave to appeal is found to be incompetent which, therefore, stands rejected.
11111.111.