The plaint, which starts the present litigation between the parties, sets-forth that the plaintiff- respondent was given the Contract of wheat Carriage by the defendants-petitioners Nos.1 and 2 for lifting the wheat from the Government Go downs, situated at Mardan and Dargai, to be delivered/taken to Darrosh, Ayun and Booni at Chitral District Vide: agreement deed, executed on 4-7-1974. In all, plaintiff-respondent was to lift/transport 14,600 bags of wheat from these places before 30-11-1974.
2. The plaintiff-respondent, in his plaint, alleged that he had transported the following quantity of wheat before 15-10-1974:--- Station from where the wheat bags were liftedStation at which the wheat bags were deliveredNumber of bags transported.
Dargai Mardan Dargai Mardan Boni Darrosh Boni Dargai959 4759 2724 1999 Total: 10441 The remaining wheat was to be transported from Mardan to Dargai, about which the plaintiff- respondent was sure that he would do the needful before the target, date i,e,, 30-11-1974. However, it was on 15-10-1974, before the expiry date of the Contract, that defendant-petitioner No,2 cancelled the said agreement in .collusion with the defendant-petitioner No,1 because both of them wanted to give the said Contract to defendant-respondent No,4 and, therefore, the present suit was set on foot.
3. The plaintiff-respondent's suit was contested by the petitioners-defendants who filed their written statements and vehemently resisted the claim of the plaintiff-respondent. Beside this in their written statement, quite a few legal as well as factual objections were raised.
4. The pleadings of the parties were reduced to the following issues by the Trial Court:---
(1) Whether the plaintiff has got a cause of action?
(2) Whether this Court has got no jurisdiction to try the present suit?
(3) Whether the plaintiff is estopped to bring the present suit?
(4) Whether the plaintiff has not come to this Court with clean hands, if so, its effects?
(5) Whether the suit is malicious and instituted with ulterior motives?
(6) Whether the plaintiff is entitled to the declaration prayed for?
(7) Whether the agreement, dated 4-7-1974 was terminated by the defendants without show- cause notice before the expiry of stipulated period?
(8) Whether the plaintiff is entitled to recover the sum of Rs,2,65,869.36 as prayed for?
(9) Whether the plaintiff is entitled to the interest on the amount prayed for, if so, at what rate?
(10) Whether the defendants were justified and competent to terminate the contract of the plaintiff?
(11) Whether the defendants were competent to execute the remaining contract work at the risk and cost of the plaintiff, if so, how much amount they incurred in this connection and to what effect?
(12) Relief.
5. After recording the evidence of the parties as they wished to produce and having heard the learned counsel for the parties, the Trial Court decreed the suit, as prayed for, vide its judgment/decree, dated 17-10-1992.
6. The defendant-petitioner, aggrieved by the said judgment/decree of the lower Court, filed an appeal before the Additional District Judge, Peshawar wherein it was contended, in the main, that the lower Court had exercised jurisdiction not vested in it and that according to clause 8 of the agreement deed, executed between the parties, the matter had to be referred to an Arbitrator in the first instance; that the needful was not done and, therefore, the Trial Court had no jurisdiction to deal with the matter in issue and record the impugned judgment/decree which was clearly without jurisdiction and could not be sustained and was accordingly liable to be set at naught.
7. The Additional District Judge Peshawar (S. Wajahat Ali Shah) who heard the appeal was of the view that the appeal was hopelessly barred by time and he, without touching the merits of the case, dismissed the same with costs vide his order, dated 16-9-1996.
8. Hence this revision petition.
9. Kh. Azhar Rashid, learned Assistant Advocate-General, at the very out-set, attacked the validity of the judgment/decree passed by the Trial Court and stated that it was a nullity in the eyes of law and, therefore, the appeal filed by the petitioner for setting aside the same could not be treated as barred by time. He further contended that the application of the defendant-petitioner for condonation of the delay in filing the said appeal should have been accepted by the lower Appellate Court in the circumstances of this case as the delay was neither wilful nor because of the negligence on the part of the defendant-petitioners. He submitted that the delay was caused because of the sudden death of the Superintendent's wife who was In charge of the file and had proceeded on 4 months leave; that since the file was with him, therefore, the appeal could not be filed within time. He prayed that in view of the said "unavoidable circumstances" it was the duty of the Court to have condoned the delay. In support of his contention he placed reliance on the following two cases decided by the Hon'ble Supreme Court of Pakistan. In the first case an Hon'ble Division Bench, comprising of his Lordship Mr. Justice Anwar-ul-Haq, Chief Justice and his Lordship Mr. Justice Dorab Patel in case Mst. Rehmat Bibi and others v. Punnu Khan and others (1986 Supreme Court Monthly Review 962) held as under:--- "(b) Limitation ....Principles of Limitation...Not applicable when order is a nullity in law. If an impugned order has been passed without hearing and notice to a party whose presence is otherwise necessarybeforeauthorities concerned, such order will be a nullity in eye of law, and no question of limitation would arise."
The other case was decided by a. Full Bench of the Hon'ble Supreme Court of Pakistan, comprising of his Lordship Mr. Justice Ajmal Mian, his Lordship Mr. Justice Saleem Akhtar and his Lordship Mr. Justice Mukhtar Ahmad Junejo in case Muhammad Shafi v. Mushtaque Ahmad through Legal heirs and others reported as 1996 Supreme Court Monthly Review 856 wherein it was held:--- "(a) Limitation Act (IX of 1908). ...Section 3... Void order and erroneous order... Limitation for setting aside...Bar of limitation can be ignored in respect of void orders but not in respect of erroneous order.... Question of limitation would not arise in respect of judgments which were nullity in law, void or ultra vires.... Where order was without jurisdiction and void, it need not be formally set aside."
10. On the other hand, Sh. Wazir Muhammad, Advocate, learned counsel for the respondents, submitted that the case-law referred to by the learned. Assistant Advocate-General for the petitioners was not at all applicable to the facts of the case in hand. He submitted that in the first case (1986 Supreme Court Monthly Review 962) the Court has passed a decree without hearing one of the parties who was also not put on notice. Regarding the second case, he stated that the same related to a pre-emption suit wherein the evidence on record established the superior pre- emptive right of the pre-emptor which was altogether ignored by the Appellate Court as well as the High Court and that the findings of the High Court were accordingly set aside and that of the Trial Court, decreeing the suit, restored.
11. According to the. learned counsel for the respondents the facts of the cited case are absolutely different from the facts of the present case and that both the judgments, cited at the bar by the learned Assistant Advocate-General, were not applicable to the facts of the case in hand.
12. On his part, he contended that it is not disputed that the defendant-petitioners had filed the appeal after a delay of about 7 months and, therefore, it was binding on the defendant-petitioners to show sufficient cause for filing of the appeal beyond the period of limitation. He further stated that the delay of each and every day had to be plausibly explained. He next stated that the Government could not be treated differently than an ordinary litigant while considering the question as to whether sufficient cause had been shown for the condonation of delay under section 5 of the Limitation Act,' 1908. In support of his contention he placed reliance on the following cases decided by the Hon'ble Supreme Court of Pakistan. One, by a Division Bench, comprising of his Lordship Mr. Justice Ajmal Mian and his Lordship Mr. Justice Saleem Akhtar in case titled Government of N.-W.F.P. through Chief Secretary and 3 others v. Abdul Malik reported as 1994 Supreme Court Monthly Review 833 wherein it was held:--- "(d) Limitation Act (IX of 1908). ....Section 5... Condonation of delay...Ground for the delay being that a Government department took longer period than a private litigant in filing the matter. Such ground was not considered sufficient for condoning the delay under S.5 for filing proceedings for which period of limitation had been prescribed under the First Sched. to the Limitation Act, 1908 and or under any other law."
13. In the other case decided by a Full Bench of the Hori'ble Supreme Court of Pakistan, comprising of his Lordship Mr. Justice Ajmal Mian, his Lordship Mr. Justice Sh. Riaz Ahmad and his Lordship Mr. Justice Ch. Muhammad Arif, in case titled Lahore High Court, Lahore, through the Registrar v. Nazar Muhammad Fatiana and others reported as 1998 Supreme Court Monthly Review 2376, their Lordship had held as under:--- "Limitation Act (IX of 1908). ....Section 5...Dely in filing appeal.
Condonation Sufficient cause Government cannot be treated differently than an ordinary litigant while considering the question as to whether sufficient cause has been shown for the condonation of delay under S.5, Limitation Act, 1908."
14. After having heard the learned counsel for the parties at length and having gone through the record of the case, the judgments recorded by the Trial Court as well as the lower Appellate Court and the authorities cited at the bar and reproduced above, I am of the considered view that the appeal filed by the defendant-petitioners was definitely barred by time and that they had miserably failed to offer any explanation, much less plausible, for the same. The Additional District Judge, Peshawar, thus, appears to have applied his judicial mind to the facts and circumstances of the case, in hand, carefully and has recorded a speaking order Vide: which he had dismissed the appeal. Since he has given valid reasons for his conclusions and because of the fact that the order impugned is neither arbitrary nor perverse which does not suffer from any illegality or material irregularity, therefore, it needs no interference by this Court in the exercise of it revisional jurisdiction.
15. This revision petition is without any substance and is accordingly dismissed with costs.