1. ' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought; against the dismissal by the High Court, of petitioner's regular first appeal as time-barred.
2. ' The High Court also thought that it was not a fit case for condonation of delay. We, after hearing the learned counsel for both sides consider it a fit case to examine; inter alia, whether the condonation of delay has rightly been refused in this case by keeping in view the relevant law and principles.
3. ' Recently this Court condoned the delay in a similar case in Civil Petition No,657 of 1989, wherein leave to appeal was granted on 17-6-1989.
4. ' It may be mentioned that during the hearing of this petition it was pointed out to the learned counsel for the petitioner that in a recent judgment of this Court the question of delay and its condonation having been re-examined by this Court, with reference to its earlier view in cases where Government is a party, it might be helpful to the petitioner in this case. Learned counsel was also told that even if he had failed to take out and cite that case in support of this petition he might find out the same till the rising of the Court so that it may be taken note of.
5. ' As a result of the foregoing he cited Zabita Khan and others v. Saleh Muhammad and others 1989 SCMR 141. This obviously and on its face is not that case. Learned counsel was also told that he should take this request by the Court seriously; and if he failed to perform his duly this might entail the withdrawal of the leave- on account of his failure to perform his duty. When dictating this order the failure of the learned counsel has, no doubt, been noticed but to punish the petitioner Government for the action or inaction of its agent, as in the present instance, would indirectly mean punishing tax-payer for no fault of his. Accordingly the Court Associate of this Court was told to find out the citation who took out the correct case within about 10 to 15 minutes (the learned counsel had nearly two hours at his disposal). It is Pakistan Post Office v. Settlement Commissioner and others 1987 SCMR 1119 wherein a specific reference was made to the previously held view of this Court in Province of East Pakistan v. Abdul Hamid Dari 1970 SCMR 558 and, inter alia, it was observed as follows:-- "It is necessary to mention here a peculiar feature of Government litigation. No doubt, it was observed in Province of East Pakistan v. Abdul Hamid Dariji 1970 SCMR 558 that in matter of condonation of delay under section 5 of the Limitation Act the Government will not be shown extra indulgence than an ordinary litigant and if so desired only an amendment of law was the way out.
6. The further experience of nearly two decades after that judgment shows that the inability on the part of the Government to get such an amendment made, has been treated as an accepted and inviolable rule to refuse condonation of delay whenever the plea is raised of departmental delays; which are inherent in the procedures even if culpable negligence is not involved. A just and proper approach which has not been prohibited by the rule in Abdul Hamid Dariji's case, is to treat the request for condonation on its own merits like that of any other litigant; and not to shut out the plea on simple formula that it is mere departmental delay/negligence; because the decision itself, does not lay down such an inflexible rule. The facts of that case and the condition that each case is to be seen on its own circumstances, cannot at all be ignored. It is well-known that indiscriminate application of this decision has caused immense loss to the public exchequer wherein an innocent third party, namely, the taxpayer in ultimate analysis, suffers the loss. This is besides those cases where delays are collusive so as to avoid dictates of justice and law. Hence, a departmental delay whenever put forward as a ground for condonation of delay requires consideration on its merits and rejected or accepted accordingly, as the case may be." (at page 1124).
7. ' This all has not at all been noticed so that the Government should punish in any manner its agent; namely, the lawyer appearing for it before us in support of this petition, which undoubtedly involves huge sum of money--over ten lacs. The purpose is to demonstrate once again the earlier observation in a case which would be covered by the remarks in the foregoing quotation; namely that: a just and proper approach is to treat the request for condonation on its own merits like that of any other litigant; and not to shut out the plea on simple formula that it is mere departmental delay/negligence, on the part of Government agents/ functionaries. This incident demonstrates another realism also. If the Bench would not itself have been aware of the earlier aforenoticed decision or the recent leave grant order dated 17-6-1989 in Civil Petition No,657 of 1989 and the learned counsel for the respondent had insisted on pressing the rule in the case of Abdul Hamid Dari; while the learned counsel for the petitioner had remained unaware of all this, this petition for leave to appeal might have been dismissed and/or on the aforenoticed neglect/failure of the learned counsel for the Government, the oral leave grant order might have been withdrawn. The public exchequer might have suffered immensely.
8. The entire question of delay, when the Government agents/functionaries are involved, in the light of the foregoing instance, needs further examination.
9. ' In view of what has been stated above we grant leave to appeal in this case also to examine the points noted above as also those taken in this petition. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.