' Brief facts of the instant Civil Revision are that the respondent being an attendant in the Mental Hospital was dismissed from service on 9-11-1967 in the departmental proceedings taken against him on the allegation of beating mental patient namely Sardar Muhammad. His appeal was dismissed on 17-5-1968 and the second appeal was dismissed on 30-10-1968.
2. The order, dated 9-11-1967, 17-5-1968 and 30-10-1968 were challenged in the civil suit filed on 10- 5-1974 by the respondent which was contested by the revision petitioner. On the pleadings of the parties the following issues were framed:---
(1) Whether the suit is not maintainable in the present form? OPD.
(2) Whether the suit is time-barred.
(3) Whether the impugned order, dated 9-11-1967 is illegal, mala fide and without lawful authority?
OPP.
3. The learned Trial Court decreed the suit in favour of the respondent after proceeding ex parte against the petitioner. The petitioner applied for setting aside the ex parte decree. The same was dismissed on 27-3-1988. A composite appeal was filed against the decree, dated 1-12-1987 and the order, dated 27-31988. The appeal was dismissed on 28-6-1988. Against the judgment and decree, dated 1-12-1981, order, dated 27-3-1988 and the judgment and decree, dated 28-6-1988 the instant civil revision is filed.
4. Learned counsel for the petitioner has relied on Islamic Republic of Pakistan v. Amjad Ali Mirza (PLD 1977 Supreme Court 182) which has laid down that if an application for condonation of delay is supported by an affidavit and has not controverted by a counter-affidavit the application must be granted. The evidence of A.W.1 as a witness could not be disbelieved for the reason that he had no authority letter from the Department. Any employee can be sent by the Department to watch the proceedings of the case and to keep himself informed of its progress. Therefore, no letter of authority was needed. As the Court was bound to hear the case on merits, therefore, the dismissal of the application for setting aside the ex parte proceedings was a non-exercise of jurisdiction. The respondent had not introduced the grounds in para. 9 of the plaint for attaching the order, dated 9-11-1967 and 30-10-1968 and the learned Court below has misapplied his mind by saying that the respondent has proved the averments of the plaint. He further submitted that the judgment and decree, dated 1-12-1981 does not show the awareness on the part of the learned Court. He further submitted that the learned Appellate Court did not deal with the appeal separately for the purposes of an appeal from decree, dated 1-12-1981 and an appeal from an order, dated 27-3-1988 under Order XI, Rule 13, C.P.C. And it did not deal with the facts in section 5 of the Limitation Act.
5. I have heard the learned counsel for the parties and have perused the record.
6. The plaintiff filed a suit for declaration challenging his dismissal order.
' In the prayer part he has challenged the orders, dated 9-11-1967, 17-5-1968 and 30-10-1968 to be declared as based on mala fide, collusive and illegal. Written statement on behalf of the petitioner was filed on 4-11-1974. The issues were formulated. Chiragh Din P.W.1 and P.W.2 plaintiff himself appeared to support his case. The case was fixed for evidence of the defendant on 30-11-1981. On that date no one appeared and the ex parte proceedings were held against them and ex parte decree was passed on 1-12-1981. An application under Order IX, Rule 13, C.P.C. For setting aside the ex parte decree which was contested by the plaintiff/decree-holder. Issues were drafted. The learned Trial Court vide order, dated 27-3-1988 dismissed the application. An appeal was filed against the judgment and decree, dated 1-12-1981 and the order, dated 27-3-1988 passed by Mr. Nasrullah Khan Ranjha, the learned Civil Judge, Lahore. The appeal was dismissed on 28-6-1988.
Hence, the present revision petition.
7. After perusal of the complete record I have seen that the evidence on behalf of the respondent/plaintiff was cross-examined by the Department which means that the Department had joined the proceedings of the suit but they later on disappeared without any reason. Their disappearance from the Court called for ex parte proceedings as well as ex parte decree against them. Even the evidence of A.W.1 Zahoor Hussain and A.W.2 could not improve the case of the Department showing the circumstances which prevented them from appearance before the learned Trial Court. When they knew that the case was at evidence stage and it was fixed for evidence on 30-11-1981, the Government Pleader was appearing on behalf of the Department. Law requires more vigilance from the Government officials than the ordinary Litigants who are not well conversant with the procedure and provisions of law. Even the application for condonation of delay has to show sufficient reason that the summons were not effected or there were sufficient reasons which prevented a party to appear before a Trial Court. They are bound to explain each day of delay. The complete record shows that the Department was not properly handling the present case and the Court has to keep in view of the agony of the plaintiff who was going through the pain being out of service since 1967. The case was throughout badly conducted by the petitioner's Department who had failed to pursue the suit and produce the evidence, even they failed to show a sufficient cause for their nonappearance or to place the circumstances in evidence which prevented them to appear before the learned Trial Court.
' Even the appeal filed by the Department was sufficiently time-barred. An application for condonation of delay was given. The learned Appellate Court refused to condone the delay and entertained the appeal and dismissed the same being barred by time. Now the contention of the learned counsel is that in the application under section 5 of the Limitation Act when an affidavit is given by the petitioner unless a counter-affidavit is given by the other side, the Court was to believe the petitioner. In the application for condonation of delay each day of delay is to be explained and applicant has to state facts and circumstances which prevented him from filing the appeal in time. By virtue of the appeal the ex parte judgment and decree, dated 1-12-1981 passed by Mr. Abdul Hameed Khan Khatak, Civil Judge Small Causes Court, Lahore and order, dated 17-3- 1988 passed by Mr. Nasrullah Khan Ranjha, Civil Judge, Lahore were challenged. The appeal was filed on 12-6-1988. The reasons advanced in application for condonation of delay were that the petitioner applied for the certified copy of the order, dated 27-3-1988 on 28-3-1988. These orders were supplied to him on 7-5-1988. The last date for filing the appeal was 7-6-1988. The application disclosed two reasons, firstly that the Special Government Pleader was not available and when available refused to give affidavit and secondly record was with Faiz Ahmad Record-Keeper who remained under arrest and detention. Both the reasons are sufficient.
8. The Department was well-aware that the Government Pleader had failed to appear before the learned Trial Court which resulted in ex parte proceedings and ex parte decree against them and even dismissal of an application under Order IX, Rule 13 of the C.P.C. For setting aside the ex parte decree. The non-availability of the record is a flimsy ground as the Department could inspect the record and file the appeal in time. Extra care was required for them to be more vigilant in filing the appeal in time. Unless and until a substantial reason for condonation of delay is explained in the application under section 5 of the Limitation Act. The affidavit annexed with the application has no value at all. The delay itself gives a right of dismissal of the appeal to the adverse party unless it is condoned by the learned Court. The perusal of this case shows that the Department was negligent and reckless in conducting the case and in challenging the ex parte decrees in a time-barred appeal. Therefore, finding no substance in the instant Civil Revision the same is dismissed. No order as to costs.