This revision petition calls in question the judgment and decree dated 23-7-1989 of the learned Senior Civil Judge, Bannu whereby the suit of the respondents was decreed against the petitioners as well as the judgment and decree of the learned District Judge, Bannu dated 19-10-1989 whereby the appeal filed by the petitioners'was dismissed in limine as barred by limitation.
2. Briefly stated the facts giving rise to this revision petition are that Haji Malik Din, now dead and represented by respondents Haji Umar Zaman etc., had brought a suit in the Court of the learned Senior Civil Judge, Bannu for a declaration to the effect that he was the owner in possession of a Serai (inn) and was using a twenty feet wide pathway over the Railway crossing for the last twenty years and the Pakistan Railways etc. Were not entitled to block it by means of pillars and barbed wire. The consequential relief of a permanent injunction restraining the Pakistan Railways etc. From blocking the pathway was also sought. The Pakistan Railways etc. Resisted the suit on several legal and factual pleas but it was decreed by the learned Senior Civil Judge, Bannu on 23-7-1989 in favour of the respondents. Feeling aggrieved the Pakistan Railways etc. Filed an appeal before the learned District Judge, Bannu but it .Was dismissed on 19-10-1989 in limine as barred by time on the ground that the impugned judgment and decree was passed on 23-7-1989, application for the certified copies was made on 5-9-1989, the copies were supplied on 12-9-1989 but the appeal was filed on 14-9-1989.
3.It was contended by the learned counsel for the petitioners that alongwith the appeal the petitioners had filed an application under section 5 of the Limitation Act for condonation of delay but the learned Appellate Court had A overlooked the submissions that the Courts had remained closed during the month of August and the Pakistan Railways being a Government Department was entitled to special indulgence. Reliance was placed on Pakistan Post Office v. Settlement Commissioner (1987 SCM R 1119).
4. On the other hand it was submitted by the learned counsel for the respondent that the judgment and decree of the trial Court was passed on 23rd July, 1989 and the Copying Branch was not closed during the month of August but the petitioners had not even cared to apply for certified copies till 5-9-1990. It was further submitted that a Government Department was not entitled to special indulgence in regard to condonation of delay in filing an appeal as held in 1980 CLC 574 and 1985 CLC 2234.
5.After giving the arguments addressed at the Bar my anxious consideration I have come to the conclusion that there is no substance in the contention raised by the learned counsel for the petitioners and the appeal of the .Petitioners was dismissed by the learned District and Sessions Judge, Bannu on 8 correct premises. There was delay of 44 days in filing the appeal and the petitioners are required to explain each day of delay.
The suit was decreed on 23-7-1989 but the application for certified copies of the judgment and decree was moved on 5-9-1989 namely 43 days after the passing of the decree. The petitioners had not even applied for certified copies till 5-9-1989, therefore, there is no force in the contention that the case about the propriety of filing an appeal had remained under-consideration in the Head Office of the Pakistan Railways for a considerable period. Similarly the contention that the Civil 'Court was closed during the month of August is meaningless. It is now well settled that in the matter of condonation of delay in filing all appeal a Government Department is to be treated at par with an ordinary litigant. In 1985 CLC 2234 it was observed that mere fact that the appellant is Government Department does not entitle it to special indulgence in this respect as compared with ordinary litigants. It was further observed that condonation of delay would mean putting premium on the inaction, negligence and want of proper diligence of the appellant. In 1980 CLC 574 it was observed that no premium can be placed on inefficiency and indifferent attitude to one's duty. The authority cited by the learned counsel for the petitioners does not apply to this case as the principle enunciated therein that Departmental delay whenever put forward as a ground for condonation of delay required consideration on its merits pertains to laches and not statutory limitation. In this context the following paragraph from the said instructive judgment (1987 SCM R 1119) may be reproduced advantageously:-- "It needs to be emphasised that there is absolutely no justification to equate laches with statutory bar of limitation. While the formal operates as a bar in equity, the latter operates as a legal bar to the grant of remedy. Thus, in the former, all the dictates of justice and equity and balance of legitimate rights are to be weighed; in the latter, subject to statutory relaxations in this behalf, nothing is left to the discretion of the Court--- it is a harsh law. Thus, passage of time per se brings the statute of limitation in operation, but the bar of laches does not deny the grant of right or slice the remedy unless the grant of relief, in addition to being delayed, must also perpetuate injustice to another party. It is also in this very context that the condonation of delay under section 5 of the Limitation Act will be on different harder considerations than those in a case of laches. For example, while it is essential to explain and condone the delay of each day vis-a-vis statutory limitation, there is no such strict requirement in cases of laches. "