AMDS. ALAM KHAN, J.- This first appeal is directed against the order dated 26.4.1997 whereby the award was made rule of the Court and decree in terms thereof was passed by the said Court.
2. The facts as laid in petition under Sections 14 and 17 of the Arbitration Act filed by the respondent No. 1 are to the effect that he being an approved contractor of appellant and respondent No. 2 was awarded a contract for the construction of Rural Health Centre Begowal District Sialkot. The work was almost complete when dispute arose between the parties and in view of the arbitration clause, the same was referred to the named arbitrator, who after hearing the parties announced his award vide his letter dated I6.10.1996, copies whereof were sent to both the parties for further proceedings.
The respondent No. 1 having obtained the copy approached the appellant and respondent No. 2 for the release of amounts awarded by the Arbitrator who declined to release the said amount with the result that the application afore-referred was filed by the respondent No. 1. The said application was contested by the respondent No. 2 alone who raised preliminary objections that the said Court has no jurisdiction under Section I6 of Civil . Procedure Code and that award is time-barred. The respondent No. 2 also moved an application for rejection of the main application on . The ground that the work was entrusted to respondent No. 1 at Sialkot, therefore, the Civil Court at Lahore has no jurisdiction to entertain and determine the suit. The learned trial Court having heard the learned counsel for the parties proceeded to repel the objections of respondent No. 2 with the result that award was made rule of the Court and decree in terms thereof was passed vide its order dated 26.4.1997.
3. The above said order has been assailed in the present appeal which is barred by limitation. The delay in filing the appeal is sought to be condoned on the ground that the appellant having come to know of the impugned order immediately approached the Solicitor for Government of Punjab for necessary sanction to file the instant appeal. It was also urged that the appellant was never served during the arbitration proceedings as he was not a party to the said proceedings and that immediately the sanction was accorded by the Solicitor for Government of the Punjab, the Advocate General Office advised the appellant to provide certain copies of documents for filing the appeal. It was then submitted that the delay in filing the appeal, if any, is neither deliberate nor intentional but has occurred due to unavoidable circumstances.
4. It would be seen that the appellant-Province of Punjab has not mentioned the date on which they came to know of impugned order nor it has been mentioned as to when the matter was referred to the Solicitor to Government of the Punjab. The oblique reference can be found in the grounds of revision where the date of knowledge is stated to be 6-11-1997. It is common knowledge that the limitation prescribed for the appeal having expired, the delay of each and every day was to be explained by the appellant. The appeal had been filed on 27.11.1997. The Solicitor to the Government of the Punjab and the Advocate General Office, who was holding brief for the Province of the Punjab, are both well-versed in the knowledge of law and that they took 21 days to reach the conclusion to file this appeal is not believable. If the two offices dealing with the case were at all serious they must have rushed and completed the preliminaries at their earliest, so that the appeal could be filed without any further delay. On the contrary this was not done and the application seeking condonation of delay had been filed with vague assertions thereby not explaining the delay of each and every day. Learned Additional Advocate General, Punjab, in support of his argument relied on "Pakistan Post Office v. Settlement Commissioner'' (1987 SCM R 1119) and "Pakistan through Secretary Ministry of Defence v. M/s. Azhar Brothers Limited" (PLD 1990 SC 663). In the earlier mentioned case it has been observed that the rale laid down in the case of "Province of East Pakistan v. Abdul Hameed Darji" (1970 SCM R 558) should not be treated as inflexible rule and in each case request for condonation of delay in filing the appeal should be considered on its on merits like that of any other litigant; and should not shut out the plea on the simple formula that it is mere departmental delay/negligence. The facts of the individual case and the condition that each case is to be seen on its on circumstances should not at all be ignored. In the other case, only leave was granted therefore, the same cannot be treated to be laying down any law. As for the rule laid down in the case of "Pakistan Post Office", supra it is no doubt true that the rigors of rule laid down in "Abdul Hameed Darji's" case has been diluted and defused but it has been observed at the same time that the merits of each case should be looked into rather than simply applying the rule laid down in "Abdul Hameed Darji's" case. Learned counsel for the respondent: on the other hand relied on " Central Board of Revenue, Islamabad through Collector of Customs, Sialkot Dry Port, Samberial, District Sialkot and others v. M/s. Raja Industries (Private) Limited through General Manager and three others" (1998 SCM R 307) to contend that rule in Abdul Hameed Darjee's case has been reiterated in the said case in the following words: "This Court has repeatedly laid down that so far as the limitation is concerned the Government cannot be treated differently from an ordinary litigant. If inspite of enormous resources and facilities the Government continues to delay the filing of case in time detrimental to its on interest the opposite party cannot be penalised for its negligence. It is a settled law that each day of limitation must satisfactorily be explained which the petitioner has failed to do in this case. The petition hopelessly barred by time and no sufficient ground exists for condonation of delay. Civil Petition No. 304/96 must fail on the ground of limitation and is, accordingly, dismissed hereby".
He has also relied on "Commissioner of Income Tax v. Rais Peer Ahmad Khan" (1981 SCM R 37). The rule laid down in the said judgment is instructive and for this the particular reason may be reproduced hereunder: "The limitation for filing the petition for special leave to appeal is 60 days and even if the time from 14.3.1975, when the High Court passed the ex parte order against the petitioner, upto the date on which its copy was received in the department, namely, 5.5.1975 is excluded the petition is still of time by nearly two months. The time said to have been spent during which the various authorities were examining the matter with a view to decide whether an appeal should or should not be filed cannot be excused. This Court has repeatedly laid down that so far as the limitation is concerned, the Government cannot claim to be treated in any manner differently from an ordinary litigant. In fact the Government enjoys unusual facilities for the preparation and conduct of their cases and its resources are much larger than those possessed by ordinary litigants, if in spite of these facilities the Government cannot comply with the requirement of the-law of limitation, then it is for it to take steps to have that law. See Province of East Pakistan v. Abdul Hameed Darji (1), the Deputy Director, Food, Lahore Region, Lahore, etc. v. Syed Safdar Hussain Shah (2) and Custodian of Enemy Property v. Hoshang N. Dastur and others (3).
We may again clarify that according to the law each day. Of limitation must properly and satisfactorily be explained and the excuse that the matter got delayed because of its having remained under examination at different departmental levels is never a valid ground for extension of period of Imitation and does not constitute a sufficient ground for condonation o delay; It is a matter of regret that despite this position being repeaedly clarified by this Court and the High Courts the Government I departments with all their resources continue to delay the filing of the ases in time with loss to the Government and the public interest. It is 1 gh time that the Government Departments so organize their business that legal cases are not unnecessarily delayed and are instituted in Court within the time limited for such matters."
The judgment afore-noted was affirmed in the case of "Federation of Pakistan through Secretary, Ministry of Foreign Affairs, Government of Pakistan, Islamabad and 5 others v. Jamaluddin and others" (1996 SCM R 727) and was followed in "Province of Punjab through Collector, District Gujrat and two others v. Muhammad Bashir and another" (1997 M LD 806). It is, thus, obvious that rule laid down in Abdul Hameed Darji's case as also in the case of "Commissioner of Income Tax v. Rais Pir Muhammad Khan" noted supra was again revived by the Supreme Court of Pakistan. The petitioner having failed to explain delay of each day from their alleged date of knowledge i.e. 6.11.1997, it is not possible to condone the said delay on the simple ground that the matter had remained in the folds of office of Solicitor to Government of Punjab to decide the simple question as to whether an appeal should be filed or not. The delay on the part of the Government in reaching the said decision, to say the least, is contumacious, hence cannot be condoned.
5. The above said aspect apart, it is the case of the petitioner that he was never served during the course of pendency of application under Sections 14 and 17 of the Arbitration Act, therefore, they could not possibly come to know about the passage of the order as also the decree. The plea is negated by the record inasmuch as notices on the main application were issued to the Province of Punjab through Secretary Local Government for 10.12.1996 and the same were received alongwith copy of the application by the receipt clerk of the said department. However, none appeared on the date fixed with the result that the learned trial Court issued notices through telegram, registered post and TCS. The said notices appear to have been issued as is evident from the two receipts thereof available on the record. The learned trial Court, however, did not proceed to pass an ex parte order against the Province of Punjab and this omission on the part of the learned trial Court is being used to urge that the Province of Punjab was never served in the case. The argument is mis-conceived because the service of the respondent is complete but ex parte order has not been passed against the Province of Punjab. The question is, should it be the pleasure of the Government that they having received the summon still not cared to appear in a case and then urge with impunity that since no ex prate order has been passed by the Court, therefore, they should not deemed to have been served in the case at all. It tantamount to taking advantage of an innocent omission on the part of the Court. In any case, it is also a matter of record that respondent No. 1 filed an application for early hearing of the case on 17.2.1997 on which notice was duly issued to the appellant and respondent No. 2 for 26.2.1997 and a representative of appellant did appear in Court on 26.2.1997 and 4.3.1997. The orders recorded in that regard can be found on the reverse of the application dated 16.2.1997, thus, it is so obvious that appellant was served in the case and in response thereto, their representative also appeared on the two dates afore-noted, therefore, it cannot be successfully maintained that they did not know about the pendency of the case. Another aspect connected with this appeal may also be attended to. Assistant Director, Local Government and Rural Development, Sialkot i. e. Respondent No. 2 in this appeal did also challenge the judgment which is impugned herein by way of filing a separate FAO No. 246/97 wherein Province of Punjab was represented by the same Additional Advocate General, who is appearing for the appellant in the instant appeal. The said appeal was also dismissed on the ground of limitation. In the face of the order above-noted, the question that the appellant had come to know of the impugned order on a subsequent date pales into insignificance. Viewed from whatever angle, this appeal is hopelessly barred by time and since no ground for condonation is made out, therefore, the same is dismissed as such.