CH. MUSHTAQ AHMAD KHAN, J.---This judgment will dispose of the following connected R.FAs inasmuch as the same arise out of the same acquisition proceedings:--
1. RFA No.129/92 Province of Punjab through Collector, District Attock and others v. Muhammad Nawaz.
2. RFA No.130/92 Land Acquisition Collector, etc. v. Anwar Khan and others.
3. RFA No.131/92 Commandant, Pakistan Military Kakool, and others v. Mst. Sufia Sultana.
4. RFA No.132/92 Land Acquisition Collector, Attock, etc. v, Muhammad Saleem Khan and others.
5. RFA No.133/92 Land Acquisition Collector and others v. Muhammad Afzal Khan, etc.
6. RFA No.134/92 Land Acquisition Collector, etc. v. Rasool Khan and others.
7. RFA No.135/92 Land Acquisition Collector and others v. Sher Afzal and others.
8. RFA No.136/92 Land Acquisition Collector and others v. Mumtaz Khan and others.
9. RFA No.137/92 Province of Punjab through Collector, and another v. Muhammad Firdaus, etc.
10. RFA No.138/92 Province of Punjab and others 'v. Firdaus and another.
11. RFA No.139/92. Province of Punjab and others v. Afsar Khan and others.
12. RFA No.140/92 Province of Punjab through Collector, Attock and others v. Muhammad Miskeen and others.
13. RFA No.141/92 Province of Punjab through Land Acquisition Collector, Attock, etc. v. Sher Afzal and others.
14. RFA No.142/92 Commandant Pakistan Military Academy, Kakool and others v. Sarwar and others.
15. REA. No.143/92 Land Acquisition Collector, etc. v. Khuda Bakhsh and others.
16. RFA No.144/92 Province of Punjab through Collector, Attock and others, v. Azeem Khan, etc. Briefly stated facts of the case out of which these RFAs have arisen are that through Award No.606/LAC/AC/(S) dated 31-12-1988, land of ten villages of Tehsil and District Attock was acquired for Defence Project Training Area, PMA Kakool under the provisions of Land Acquisition Act, 1894 by the Land Acquisition Collector, the appellant in RFAs Nos.130 and 132 to 144 of 1992. Preliminary Notification under section 4 of the Land Acquisition Act was published in the Official Gazette dated 23-2-1986. After observing the legal formalities the award was announced and various rates for various types of land situated in different villages were fixed therein. Dissatisfied with the rates of compensation, the respondents in all these appeals filed references under the provisions of section 18 of the Land Acquisition Act, 1894 alleging that their lands have been undervalued and underestimated and further that the location and potential value of the land has been totally ignored by the Arbitrator while fixing the rate of compensation which is very low. The above references were contested by the appellant and ultimately vide judgment and decree dated 30-9- 1991, the learned Senior Civil Judge, Attock accepted all the references out of which these appeals have arisen and enhanced the compensation on the basis of the report of the Local Commissioner.
Application for supply of the certified copies of the judgment and decree was filed by the appellant on 1-10-1991. Copy was ready for delivery on 3-11-1991 and was delivered to the appellant on 4-11- 1991. The appeals were filed before this Court on 4-2=1992 without payment of court fee etc. and were incomplete in so many other respects, which deficiencies are mentioned as items Nos.l, 3, 6, 10, 15, 21 and 24 of the objection slip. As the appeals on that day were barred by the limitation applications under section 5 of the Limitation Act read with section 151, C.P.C. were also filed for condonation of delay which are supported by affidavits. The cause of delay in filing of the appeals is mentioned in paragraphs Nos.2 and 3 of the said applications which are reproduced as under:-- "(2) That the delay in filing the appeal is not deliberate and intentional rather it was due to miscalculation as to the period of limitation.
(3) That the applicants have a strong case on merits. The dismissal of the appeal on the question of limitation would defeat the ends of justice and would result in irreparable loss to the applicants."
3. As the appeals were not properly stamped documented and being deficient in lot many other respects, the same were returned to the learned counsel for the appellant on 8-2-1992 indicating the objections and for removal thereof with a direction to re-file the same within two days thereafter. After removal of certain objections the appeals were re-filed on 18-4-1992. However, as the objections No.l to 15 were still not removed, vide order dated 26-4-1992 the same were again returned for the removal of the said objections and for re--filing of the appeals which were thereafter re-filed on 14-11-1992. On 16-11-1992 it was again objected by the Office that the appeals are still not complete, therefore, they were again returned for removing the objections and completing the same vide order 'dated 16-11-1992. After removal of the objections, the appeals again were re-filed on 1-12-1992. All the appeals were admitted to regular hearing and have come up before us for final hearing.
4. Mr. Mansoor Ahmad, Standing Counsel has appeared on behalf of the appellants in all the appeals. Sardar Zaheer Ahmad Khan, Advocate has appeared on behalf of the respondent in R.F.A.
No.131/92. Mr. Razzaq A. Mirza, Advocate has appeared on behalf of the respondents in RFA No.142/92, whereas in all other appeals M.S. Zaheer Ahmad Qadri and Sh. Iftikhar Ahmad, Advocates have appeared on behalf of the respondents. With consent of the learned counsel for the parties, in all these appeals arguments have been heard jointly and the appeals are also being disposed of with their consent through this consolidated judgment to be written in R.F.A. No.129/92.
5. At the very outset learned counsel for respondents have raised a preliminary objection to the maintainability of the appeals and have prayed that the appeals being barred by time are liable to be dismissed as per provisions of section 3 of the Limitation Act, 1908. Learned counsel for the respondents elaborating their arguments have contended that the appeals even on the day of initial filing were barred by limitation and the grounds seeking condonation of delay being not sufficient, the same are liable to be dismissed on this short ground and further that after the same were returned for removal of the objection, the appellants have neither explained the delay which has occurred up to the date of final re-filing of the appeals, nor have applied for condonation of delay for the said period and as under the law they were obliged to explain each day's delay and the appellants even if are the Government Authorities being liable to be treated at par with the ordinary litigants, the appeals being barred by time, cannot proceed on merits. In support of their contentions, learned counsel have placed reliance on the following cases:--
(1) Muhammad Saeed and another v. Shaukat Ali (1982 SCMR 285).
(2) Nazar Din and others v. The Secretary, Rural with powers of the SC(L), Punjab, Lahore and others(1983 SCMR 1188).
(3) Income-Tax Officer, Company Circle XII, Karachi v. M/s. Sh. Miran Bux, Karam Bux Ltd. and 25 others (1986 SCMR 1255).
(4) . Riasat Ali and 2 other v. Mahmood Ahmad (1993 CLC 120).
(5) Cantonment Board, Kharian Cantt. v. Muhammad Shat (PLD 1991 SC 400).
(6) Gul Muhammad Shah and another v. Shahak Dad (1993 CLC 1547).
6. In reply to the arguments addressed by the learned counsel for the respondents, Mr. Mansoor Ahmad, learned counsel for the appellants has argued that the appeals were initially filed before this Court with the delay of one or t,-,o days which is negligible and as sufficient explanation has been given in the applications seeking condonation of delay which applications are filed alongwith the memorandum of appeals on the day of initial filing thereof, the appellants are entitled to the grant of condonation of delay in filing of appeals, particularly when the rate of compensation fixed by the learned Senior Civil Judge is exorbitant and is not based on lawful evidence, inasmuch ac the rate has almost been doubled on the basis of an inadmissible report of the Local Commissioner. Regarding period which was consumed during the date of returning of the appeals for removal of the objections and re-filing thereof, learned counsel contends that this period has been consumed due to the departmental processing difficulties and involvement of so many officials for removal of objections particularly payment of court-fee. Learned counsel further contends that the technicalities have not to be a hurdle in the way of administrating justice, as according to him in these cases enhancement of compensation has resulted in causing of a great hardship and injustice to the appellants, therefore, he prays =hat the delay may be condoned and the appeals may be decided on merits. Regarding initial delay, learned counsel has further pointed out that the same occurred due to bona fide miscalculation of period of limitation for filing of the appeals on the part of the learned counsel who had to file the appeals. In support of his contention learned counsel has placed reliance on the following cases:--
(1) The Punjab University etc. v. Acharya Swami Ganesh and another (AIR 1972 SC 1973).
(2) Pakistan through Secretary, Ministry of Defence, Government of Pakistan v. M/s. Azhar Borthers Ltd. (1990 SCMR 663).
(3) Deputy Collector of Customs and 2 others. v. Muhammad Tahir and another (PLD 1989 SC 627).
(4) Province of East Pakistan v. Abdul Hamid Darji and others (1970 SCMR 558).
7. We have considered the arguments addressed by the learned counsel for the parties and have perused the record and also have gone through the law declared in cases cited by We learned counsel for the parties in support of their contentions. In case of Muhammad Saeed and another v.
Shaukat Ali (1982 SCMR 285) it has been held that a litigant has to explain each day's delay in filing of the lis and in case a satisfactory explanation of each day's delay is hot forthcoming, the petition is to be dismissed as barred by time. Consequently, in this case CPSLA before the Hon'ble Supreme Court was dismissed as barred by time. In case of Nazar Din and others v. The Secretary, Rural with Powers of the SC(L), Punjab, Lahore and others (1983 SCMR 1188), the CPSLA which was filed with a delay of only one day was dismissed on the ground, that since a valuable right has accrued in favour of respondents No.3 to 5 and that no sufficient cause for condonation of this delay was established on record. In case of Muhammad Feroz Khan v. Khalique Dad Khan and 28 others (1986 SCMR 930), a civil appeal filed before the Supreme Court which was barred by time was dismissed for the reason that sufficiency of cause of delay of each day could not be explained by the appellant. In case of Income-Tax Officer, Company Circle XII, Karachi. v. M/s. Shaikh Miran Bux, Karam Bux Ltd. and 25 others (1986 SCMR 1255) the petitions filed by the Income-tax Authorities were dismissed for want of sufficient explanation for filing of delayed petitions. At page 1257 of the report, it has been held as under:-- "The only explanation of the delay between this date and the 2nd April, 1976 is that time was required for obtaining the necessary sanction for funds and for preparing the petitions. The explanation about the requirement of time for preparing the petitions is not satisfactory because the judgment under appeal was with the petitioner. The real reason for the delay appears to be that time was spent in obtaining sanction for funds. No details of this delay are given, and as the petitioner had to explain each day's delay, the explanation fails to make out sufficient cause.
Accordingly, we dismiss all these petitions on the ground that they are time --barred".
In case of Cantonment Board, Kharian Cantt. v. Muhammad Shafi (PLD 1991 SC 400), where the appellant could not justify condonation of delay of each day, order of dismissal of the appeal as barred by time passed by the learned Additional District Judge was upheld by the Hon'ble Supreme Court of Pakistan after taking into consideration almost whole previous case-law on the subject. In case of Riasat Ali and 2 others v. Mahmood Ahmad (1993 CLC 120), the order of dismissal of first appeal by the learned First Appellate Court as barred by time was upheld by this Court on the ground that the delay of each day is to be positively explained in order to get concession of condonation of delay and in case where the said explanation is not given delay cannot be condoned. In case of Muhammad Ramzan and 4 others v. Mst. Masooda Hassan and 2 others (PLD 1993 Quetta 88) at pages 92 and 93 of the report it has been held that bona fide mistake regarding computation of time or ill-advice by a counsel would not constitute a sufficient ground for condonation of delay and the plea for condonation of delay could only be looked into where delay of each day has been calculated and explained, in absence whereof the Court was not bound even to take into consideration such a plea and that the question of limitation shall not be lightly interfered in purported exercise jurisdiction under section 5 of the Limitation Act as bar of limitation creates a valuable right in favour of a party against whom the time --barred proceedings had been filed. The relevant portion of the observations made at pages 92, 93 of the report in the said case are reproduced as under:-- "As it has been observed that section 14 of the Limitation Act cannot be enforced in appeal proceedings, therefore, the appellants have to make out a case within the scope of section 5 of the Limitation Act, which lays down that delay in tiling of the appeals can be condoned provided sufficient cause has been put forth in order to warrant indulgence on the question of limitation. In this context there is a host of case-law of the Hon'ble Supreme Court wherein it has been held time and again that bona fide mistake or ill-advice by a counsel in invoking the jurisdiction of a wrong forum never constitutes a ground for condoning the delay. Reference can be made to PLD 1983 SC 262 and 385, 1984 SCMR 1068, 1988 SCMR 2, 1989 SCMR 1498, PLD 1991 SC 102 and PLD 1992 SC 529 and 917. Following the dictum laid down in these reports we are inclined to hold that bona fide mistake or ill-advice by the counsel does not constitute sufficient ground for condoning the delay, however, the party who had suffered at the hands of counsel, had a remedy to sue his counsel for damages. As such, the plea being raised by the appellants in this behalf has not been found entertainable for condoning the delay. We have also perused the applications under section 5 of the Limitation Act and failed to find the explanation of each day in filing the belated appeals. Under section 5 of the Limitation Act the plea for condoning the delay can only be looked into if the delay of each day has been calculated and explained and in absence thereof, the Court is not duty bound even to take into consideration the plea raised in the application.
Even otherwise, the question of limitation is not to be lightly interfered in purported exercise of jurisdiction under section 5 of Limitation Act, because it creates a valuable right in favour of the party against whom the proceedings are being instituted, thus on this score as well, we see no merits in the applications.
Mr. Farooq, H. Neik, also contended that in the Appeal No.52 of 1992, appellants did not pay the proper court-fee before the District Judge, Khuzdar; therefore, on account of insufficient court-fee it may be deemed that no appeal was instituted before the District Judge and in the present appeal without considering the period which was spent before the District Judge, where the time is to be calculated from 30th June, 1991 duly constituted appeal was not submitted and on this score as well the said appeal becomes hopelessly barred by time and no indulgence can be shown in enlarging the time because, neither these facts find mention in the application under section 5 of the Limitation Act. nor `this point has been urged by the counsel appearing for appellants. Mr. Farooq N. Neik relied on PLD 1981 Lah. 286, AIR 1931 Calcutta 333, AIR 1941 Allahabad 295 and 1980 CLC 485. When confronted with this situation, Muhammad Yousaf Advocate of the appellants in RFA No.52/92 could not give the reply satisfactorily. It is to be observed that under Order 41, Rule 1, C.P.C., the appellant besides accompanying the decree with the memo of appeal is also under obligation to affix the same amount of the court-fee which was paid before the trial Court and for non-payment of requisite court-fee it would be deemed, that no appeal has been properly instituted. Thus it is held that the Appeal No.52 of 1992 is also considered hopelessly barred by time for this added reason as well."
In case of Khairoo and another v. Muhammad Yaqoob and 7 others (1988 . SCMR 1910), their Lordships of the Supreme Court have held that if condonation of delay sought is on the ground that there was confusion in calculating the period of limitation for filing of a petition in the mind of the learned counsel who filed the same, it is not a valid ground for condonation of delay as a valuable right had accrued to the respondents due to bar of limitation, the petition, hence, was dismissed in this case as barred by time. In case of Secretary, Finance Division, Government of Pakistan and 2 others v. Muhammad Iqbal Solangi (1993 SCMR 837= 1993 PLC (C.S.) 877), the Hon'ble Supreme Court of Pakistan has held that condonation of delay is within the discretion of a Tribunal before whom a time-barred lis was filed and if in exercise of that discretion, the Tribunal does not condone the delay, no interference is possible unless it is shown that the order passed by the said Tribunal is arbitrary and capricious. In case of the Punjab University, etc. v. Acharya Swami Ganesh and another (AIR 1972 SC 1973), it has been held that .bona fide mistake on the part of the learned counsel regarding calculation of period of limitation for filing of an appeal is a sufficient ground for condonation of delay. In case of Pakistan through Secretary, Ministry of Defence, Government of Pakistan v. M/s. Azhar Brothers Ltd. (1990 SCMR 663) leave was granted to consider the question of delay when lapse on the part of Government agents or functionaries was involved. Learned counsel, however, is not in a position to make a definite statement as to whether this case has been finally decided or not. However, in this very judgment case of Province of East Pakistan v.
Abdul Hamid Darji and others (1970 SCMR 558) has been taken note of and considered wherein it has been held that in matter of condonation of delay under section 5 of the Limitation Act, Government will not be shown extra indulgence than an ordinary litigant and if so desired only an amendment in the law was the way out. In case of Pakistan Post Office v. Settlement Commissioner and others (1987 SCMR 1119) which has also been taken note of in the above leave granting order their Lordships of the Supreme Court of Pakistan have held that if a departmental delay is put as a ground for condonation of delay, it is to be examined on the facts of its own merits and is to be accepted or rejected in the given circumstances of each case. In case of Deputy Collector of Customs and two others v. Muhammad Tahir and another (PLD 1989 SC 627) where a petition for leave to appeal was barred by 101 days and condonation of delay was sought on the ground that the lower functionaries have misconducted in the matter of vigilance and preparation for filing of the petition, the delay was geld to be bona fide and was condoned particularly in view of the admitted fact, that the departmental action was also being taken against the said functionaries.
The following guidelines hence have been laid down by this Court as well as by the Hon'ble Supreme Court of Pakistan regarding decision of question of condonation of delay in time-barred cases:--
(a) that in case a sufficient explanation is rendered by the litigant regarding delay in filing of the lis, the Court has discretion to condone the delay;
(b) that in order to get a delay condoned, petitioner/appellant has tomake out a sufficient cause for condonation of delay of each and every day; (c)that the Court/Tribunal before whom a time-barred lis is filed has a discretion to condone the delay and in case discretion is exercised for or against no interference is possible with the order unless and until the same is shown to be arbitrary and capricious.
(d) that miscalculation of time is not a sufficient ground for condonation of delay; .
(e) that unless and until the cause of delay of each day is specifically calculated and explained, the Court is not bound to consider the plea subsequently raised in support of the arguments for condonation of delay;
(f) That the cases filed by .the Government/Statutory Authorities ordinarily are to be treated at par with other litigants except with the difference that in those cases where explanation offered is departmental lapses, the case has to be decided under the given circumstances of each case after taking into consideration the genuineness and bona fides of those lapse;
(g) that after the expiry of the period of limitation a valuable right accrues in favour of the respondent and hence delay is not to be condoned automatically as of right without there being a sufficient cause for condonation thereof.
8. Judging this case in the light of the aforementioned guidelines laid down in cases referred to above, we find that the appeals. were initially filed although incomplete after a delay of two days.
The explanation as given in the applications under section 5 of the Limitation Act which is appended with the memorandum of appeals, is vague and cannot be said to be sufficient to condone delay within the meanings of the provisions of section 5 of the said Act. Merely because the appellants have stated that the delay is not deliberate and intentional, is due to miscalculation as to the period of limitation, they have strong cases on merits and further that dismissal of the appeals on the question of limitation would cause an irreparable loss to the respondents, are not legally recognized sufficient grounds justifying condonation of delay. No affidavit of the learned counsel has been filed to depose that miscalculation was on his part. Any miscalculation on the part of UDC of the concerned Office cannot at all be said to be a sufficient cause for condonation of delay in case where due to expiry of the period of limitation a valuable right has accrued to the other side. Case of The Punjab University etc. v. Acharya Swami Ganesh and another (AIR 1972 SC 1973) relied upon by the learned counsel for the appellant besides being a case relatable to a foreign jurisdiction, is distinguishable on facts, the law-declared therein being contradictory to the law declared by the Supreme Court of Pakistan "case of in Khairo and another" (supra)' and cannot be followed, therefore, the ground of miscalculation of limitation for filing of an appeal, being not a lawfully recognised valid ground for condonation of delay, cannot be allowed to be pressed into service by the appellants in their favour. The other two grounds namely that a great injustice will occur and the Government will suffer a loss in case the appeals are dismissed as barred by time are also of no legal efficacy inasmu ch as entertainment of appeals by condoning the delay will take away valuable right accrued to the respondents whose lands have been acquired and taken possession of by the appellants, and, therefore, the balance of injustice in such a case will definitely be towards the respondents side. Suffering of a loss is also not a ground for condonation of delay particularly when the appellants have not taken any plea in writing for filing of delayed appeal on the ground of any departmental difficulty nor any material or even affidavit of any departmental employee has been placed on record or produced during the course of arguments. Bare statement of the learned counsel during the course of arguments, therefore, cannot be given any weight and cannot even be considered as a plea in view of law declared in case of "Muhammad Ramzan and another" referred to supra. Case of "M/s. Azhar Brothers Ltd." is just a leave granting order whereas cases of "Pakistan Post Office" and "Deputy Collector of Customs and 2 others" referred to supra, are distinguishable on facts and the law declared therein is not of any help to the appellants inasmuch as there is no allegation/explanation of misconduct on the part of the departmental functionaries nor any departmental action has been or is proposed to be taken against the said functionaries who were responsible for filing of delayed appeals.
Resultantly, we hold that the appeals were initially barred by time and there is no ground to condone the delay of two days in filing of the said appeals. The appellants have neither explained nor sought condonation of delay for the period during which, the appeals were returned to them by the Office and were refiled after removing the objections, hence, each day's delay having not been explained nor any prayer having been made for condonation of the same in writing nor their being any valid explanation, the appeals are held to be hopelessly barred by time, and hence liable to be dismissed as per provisions of section 3 of the Limitation Act which is reproduced as under:-- "Section . Subject to the provisions contained in sections 4 to 25 (inclusive) every suit instituted, appeal preferred and application made after the period of limitation prescribed therefore by the first schedule shall be dismissed, although limitation has not. been set up as a defence".
All the abovementioned appeals are hence dismissed as being barred by time, with no order as to costs. .