1. ' The respondent No. 1 filed a suit for recovery of Rs. 50,000 on the allegation that on 6-8-1983 the Executive Engineer Road Sukkur had awarded a contract to him for construction of A.D.C. Building for Giddu Colonial Staff, Sukkur. It was alleged that the work was completed according to specification and only few items were left which could have hardly taken a fortnight when all of a sudden the work was stopped and payment of sixth running bill was withheld without any reason.
2. The work was stopped in October, 1964 and in spite of representation no further instructions were issued by the P.W.D. Authorities and in meantime some offices of A. D. C. At Sukkur were shifted in the building without the consent of the respondent and settlement of his claim. In spite of the protest made by respondent No. 1 the temporary control of the building was transferred from B and R. Department to appellant No.
1. The respondent .No. 1 was directed by the appellant No. 3 to restart the work which was accordingly completed. According to the respondent No. 1 measurements were taken and recorded in the measurement book and he bad received Rs. 1,73,373 towards 5 running bills. He, therefore, claimed Rs. 50,000 towards the final bill, the security deposit, earnest money and other items. The suit was originally filed against Pakistan Development Corporation and the Executive Engineer but later the Government of West Pakistan and Executive Engineer Sukkur Road were also added as defendants. The written statement filed on behalf of appellants Nos. 1 to 3 was adopted by respondents Nos. 2 and 3. Beside preliminary objections raised in the written statement it was also contended that according to the terms and conditions and rules governing the contract, the respondent No. 1 had to first make representation to the Superintending Engineer and refer the matter to arbitration before instituting the suit. It was pleaded that the payments made to respondent No. 1 were advance payments and not payments against work actually done. The appellant's Executive Engineer had made fictitious measurements for which deduction has to be made. It was pleaded that work had not been completed by the respondent No. 1 and whatever has been done is not according to specifications and standard prescribed by the contract. During the progress of the work the defects were pointed out and even the Governor's inspection team objected to the defective work but it remained unrectified. The respondent No. 1 was asked to remove those defects but be never cared to do so, therefore, question of preparation of final bill did not arise. The claim of respondent No. I was repudiated. The respondent No. 1 examined three witnesses whereas the appellant examined Abdul Hafeez Engineer.
3. ' The learned trial Court by it's judgment dated 31-7-1970 decreed the suit as prayed. The appellants presented this appeal on 20.8-1971 alongwith an application under section 5 of the Limitation Act for condonation of delay. In support of this application several affidavits of officers of the appellant have been filed giving reasons for the delay in filing appeal. Before dealing with these facts it would be proper to give certain dates which are relevant for appreciating the appellant's contention. The judgment of the trial Court was announced on 31-7.1970 and decree was signed on 5-10-1970. The appellant No. 1 applied for certified copy of the judgment and decree on 20-2-1971.
4. The copy was delivered on 6-3-1971 and the appeal was filed on 20-8-1971. The period of limitation provided for filing appeal against the judgment of the learned Civil Judge is 60 days from the date of the judgment and decree. Of course the time taken for obtaining the certified copy has to be excluded.
5. ' In the affidavits filed in support of the application under section 5 it has been stated that Taj Mohomed who was Assistant Government Pleader had been defending the suit. The said Advocate did not inform the appellants that the suit had been decreed on 31-7-1970. V, hen the respondent No. 1 filed execution proceeding and notice was served in the office of the appellants on 27-1-1971 for appearance in Court on 20-2-1971 the appellants contacted Mr. Taj Mohomed Advocate to ascertain the correct facts and Abdul Malik the Junior Clerk was disputed to obtain the case papers from the said A. G. P. Mr. Taj Mohomed, Advocate avoided on one pretext or the other and the papers could not be obtained from him. Thereafter Mr. Nawab Wahid Ahmad Advocate was instructed to obtain the relevant papers and he was able to obtain the certified copy on 6-3-1971.
6. Thereafter the case paper was sent to A. D. C. Headquarter at Lahore for advice whether appeal should be filed. The Head Office forwarded the papers to its legal adviser who advised by letter dated 3-7-1971 that appeal should be preferred immediately Mr. Maroof All Khan was engaged for filing appeal and necessary steps were taken for obtaining sanction for payment of court-fee. The sanction was accorded on 27-7-1971 and on 6/7 August 1971 the Head Clerk was sent from Sukkur with all papers to Karachi which were examined by Mr. Maroof Ali Khan. He directed to contain necessary papers from the original record of the suit. Again intimation was sent to Lahore for return of all the case papers sent there which had been secured from the trial Court. The Head Office sent back the papers on 13-8-1971 and the Head Clerk was directed to proceed to Karachi on 15-8-1971.
7. Finally the appeal was filed on 21-8-1971.
8. The entire narration reflects upon the manner in which time was consumed particularly from February, 1971 of August, 1971. It should be remembered that when any party seeks condonation of delay he has to explain the delay A of each and every day. On this principle it has to be examined whether the explanation offered by the appellants explains the delay. From the date when decree was passed i.e. 31-7-1970 upto 27-1-1971 the appellant does not seem to have any knowledge of the proceedings or the decree which was passed because its Advocate did not inform it. During this period of about six months the appellant did not care to enquire about the case from its Advocate who was none else but an Assistant Government Pleader. Nor did he inform the appellant about the litigation. Even the officers of the appellants who were at Sukkur did not bother to know about the proceeding. This exhibits a careless and callous approach as well as an indifferent and irresponsible attitude towards public duty by officers who allowed the matter to remain unattended without making enquiry worth the name. This period was wasted due to the negligence and inaction of the appellant's officers and agents. Even if for argument sake the delay during 31- 7-1970 to 27-1-1971 is explained there remains a period from 28-1-1971 to 21-8-1971 to be explained.
9. The certified copy was obtained on 6-3-1971 but the appeal was not filed for 5 months and 14 days.
10. It is to be examined bow this delay has been explained ? This is again a sad story how the files, nothings and ministerial cobwebs have consumed this period. The papers were despatched from one office to Headquarter for obtaining advice whether appeal should be filed. This simple advice consumed a period of about four months i.e. From 6-3-1971 to 3-7-1971. The only explanation is that the papers were sent by Head Office to the legal adviser for advice which was received on 3-7-1971.
11. This no explanation at all. The matter had already been delayed, therefore, the appellants officers and legal advisers could have acted promptly and advice could have been obtained within a few days. The matter was not of such a complicated nature which required study and research consuming about four months. No attempt has been made to explain this delay of about four months. Here again the appellants officers and agents have acted with utter disregard of the urgency in the matter. They allowed the matter to take its own course unmindful of their duties and the limitations placed by law. The appellants were aware that even before it applied for certified copies, more than 9 months had passed and appeal was prima facie time-barred and, therefore, all actions ought to have been taken with despatch, hurry and due diligence. The matter was not so complicated as to take four months for advice. In fact the Advocate's advice has not been produced to show on which date the matter was referred to him and when he advised the headquarter to file the appeal. The story does not end here. After obtaining the advice another 24 days were wasted for obtaining the sanction for payment of court-fee of hardly Rs. 1,8b8. If the appellants were serious in filing the appeal then this sanction ought to have been obtained immediately. However, after sanction was obtained the batter was sent to Advocate at Karachi on 6/7th August. There is another delay in sending the papers to the Advocate at Karachi. One is unable to understand why the paper were not sent immediately when they bad been received on 6/7th July. In fact, it seems sufficient time has been taken in this process without any reasonable cause or excuse. When the matter reached the Advocate at Karachi he asked for certain other original records which the Headquarter at Lahore had kept with itself. Therefore, complete documents were not given to the Advocate for drafting memo. Of appeal. These documents were ultimately secured on 13-8-1971 and forwarded on 15-8-1971.
12. Under section 5 of the Limitation Act the Court is empowered to exercise its discretion for condoning the delay if from the facts and circumstances o the case it is satisfied that the appellant due to sufficient cause was prevente from preferring the appeal within the prescribed time. Sufficient cause ha nowhere been defined nor can a fixed rule be laid down to determine what is sufficient cause. It entirely depends upon the facts and circumstances o each case which may differ from one case to another. Therefore, one has to, examine the facts and ground set out by the appellant. The discretion to be exercised by the Court should be in a judicial manner. Neither it should be arbitrary nor very liberal. If the discretion is exercised on wrong notion of law it will not be an exercise of judicial discretion. The Court has to see that while exercising discretion no injustice is done to any party. The notions of justice are not to be extended only to comfort the appellant but there is another party before the Court and he is the respondent. The Court has, therefore, to see that justice is done to both the parties according to law. The best rule to guide the discretion is whether the appellant has acted with reasonable diligence in presenting the appeal.
13. In an application under section 5 of the Limitation Act it is the duty of the party who is seeking condonation of delay, to explain the delay of each and every day and unless it is satisfactorily explained delay cannot be condoned. It is to be borne in mind that by lapse of time a vested right is accrued to the other party of which it cannot be deprived lightly (41 Mad. 904).
14. ' In the present case as explained above the delay from obtaining certified copy of the judgment of the trial Court upto filing the appeal has not bee D satisfactorily explained. The entire facts show that file had been movinrom one table to another and from one officer to the other officer unmindful of the limitation provided by law. It seems that the appellants were completely unconcerned of the fact that the law provides a period of limitation for filing appeal. Their officers and agents were taking their own time in their own manner. In these circumstances how can it be concluded that the appellants have acted diligently ?
15. ' Mr. Maroof Ali Khan the learned counsel for the appellants contende that the appellant No. 1 is a government owned organization and such dela may be condoned. It cannot be presumed that the Government organizations or the Government departments are prove to delays and are not capable of working with dispatch, promptness and consciously. The law does not E provide for different treatment to the Government Departments or organizations. No different rule can be applied between a citizen and Government department or Government organization. All have to be treated alike and equal before law. In this context it is pertinent to reproduce the observation of the Supreme Court in Province of West Pakistan v. Abdul Majeed (1): "This Court has also in several cases had occasion to point out that so far as limitation is concerned the Government cannot claim to be treated in any manner differently from an ordinary litigant, because, of the fact that the Government enjoys unusual facilities for the preparation and conduct of their cases and its resources are much larger. If in spite of these facilities the Government cannot comply with the requirements of the law of limitation, then it is for it to take steps to have that law changed and not to ask the Courts to give a different interpretation to its provisions. In this view of the matter, the High Court's decision in these two petitions is unexceptionable.
16. Section 5 does not confer any special consideration to the Government and no discrimination can be made between State and citizen. This view was expressed in Secretary of State v. Hindustan Co- operative Insurance Society Ltd. (2), Secretary of State v. Debendra Lal Khan (3), District Board Shahpur v. Shan Das Din (4) and 152 I C 59.
17. ' In the facts and circumstances of the case the appellants have failed to G show that they have acted deligently and promptly in filing the appeal.
18. ' The learned counsel contended that in terms of contract the matter should have been referred to Superintending Engineer before filing the suit and as the respondent No. 1 failed to do so the jurisdiction of the trial Court was barred. Such a clause could be termed as arbitration clause; it does not bar the jurisdiction of the Court. Mr. Maroof Ali Khan stated that an application under section 34 of the Arbitration Act was filed but it was dismissed. It closes this chapter.
19. ' For the foregoing reasons the application under section 5 of the Limitation Act is dismissed.
20. Consequently the appeal is also dismissed.
21. Application . {{FOOT NOTE}}
(1) 1970 SCMR 558 (2) 36 CWN40
(3) 61 Cal. 267 (4) 123 I C 83 {{FOOT NOTE}}