' SARDAR SAID MUHAMMAD KHAN, CJ.---This appeal has been directed against the order of the High Court, dated 28-1-1999, whereby the writ petition filed by the appellant, herein, was dismissed observing that the counsel for the appellant had no objection if the writ petition is treated to have been withdrawn.
2. The brief facts of the case are that the appellant and one Raja Ghulam Shabbir filed a writ of quo warranto against Raja Naveed Hussain and one Farooq Hussain. While the writ petition was pending, Raja Naveed Hussain, respondent No,1, herein, filed an application in the High Court that if the 'petitioner No,1 Raja Ghulam Shabbir was promoted to any higher post he would not file any appeal or application against the order of his promotion'. The learned Judge in the High Court has observed in the impugned order that the learned counsel for the 'petitioner' did not want to press the petition in view of the said application and, thus, the same was dismissed as having been withdrawn.
3. It may be stated that there were two petitioners, one Raja Ghulam Shabbir and the other Andleeb Sahir Butt, the appellant herein, but it was recorded in the impugned order that the counsel for the 'petitioner' had no objection if the writ petition was disposed of. According to Mr. Ashfaque Hussain Kiani, Advocate, who was counsel for both the petitioners, Andleeb Sahir Butt and Raja Ghulam Shabbir, he did not consent to the impugned order. The appeal has been filed only by Andleeb Sahir Butt who was one of the writ petitioners in the High Court. The application filed by Raja Naveed Hussain, respondent, in the High Court only pertained to the matter relating to Raja Ghulam Shabbir and not Andleeb Sahir Butt, the appellant herein. According to the case of the appellant, the writ petition filed by him against Raja Naveed Hussain could not be dismissed on the basis of the said application because the same did not pertain to the relief sought by the appellant against respondent No,1, Raja Naveed Hussain. It has been further submitted that it has incorrectly been recorded in the impugned order by the High Court that the counsel for the 'petitioner', i,e,, Mr.Ashfaque Hussain Kiani, stated before High Court that he had no objection if the writ petition was dismissed as having been withdrawn. It is further the case of the appellant that he applied for the copies of some documents on 26-3-1999 which were supplied to him on 31-3-1999. But according to the copies issued to him, the application is stated to have been submitted on 27-3- 1999 ' and copies applied for were also delivered to him on the same day, whereas on 27-3-1999 the copies were not ready for delivery because that had not been signed by the Copying Officer and the same were delivered to him on 31-3-1999; as on 28-3-1999 to 30-3-1999, the Court was closed due to Eid holidays. In support of his contention, the appellant filed an attested copy of the register which pertains to the issuance of copies; according to said register, the copies were delivered to the appellant, herein, on 31-3-1999. In view of the date recorded by him on the said register, obviously, there is contradiction in the dates of the delivery of the copies one mentioned in the copies itself and the other which was allegedly written by the appellant at the time of delivery of the copies. The appellant has contended that this contradiction is the result of connivance between the Copying Officer and the respondent so as to render the petition for leave to appeal filed by the appellant in this Court as time-barred. There is an application for condo nation of delay enumerating all these facts which are also supported by an affidavit. It has been further contended by the appellant that the writ petition filed in the High Court so far as the appellant was concerned, would be deemed to be still pending and the same could not be regarded to have been dismissed as having been withdrawn, especially so when the application suggesting compromise was made in the context of Raja Ghulam Shabbir and not that of appellant. He has submitted that if the limitation is reckoned from the date of the delivery of the relevant copies, i,e,, 31-3-1999, the petition for leave to appeal is within time. In alternative, he has submitted that in case the limitation is reckoned from 27-3-1999, the alleged date of delivery, the delay in filing the appeal may be condoned in the circumstances listed above.
4. In reply, Mr. M. Tabassum Aftab Alvi, Advocate, the learned counsel for respondent No,1, has controverted the arguments on behalf of the appellant. He has argued that in fact the copies were prepared and delivered to the appellant, herein, on 27-3-1999 as is evident from the attested copy of the register which the appellant had also signed. He has argued that in fact the appellant signed the said register on 27-3-1999 but he again came to the Copying Clerk on 31-3-1999 and blotted his earlier signature and resigned the said register mentioning 31-3-1999 as the date of delivery of the copies. He has submitted that in fact this was subsequently done by the appellant so as to overcome the bar of limitation. The learned counsel has further submitted that it was incumbent upon the appellant to implead the learned Judge of the High Court, who passed the impugned order, the Deputy Registrar and the Copying Clerk as parties in the present appeal because certain allegations have been leveled against them in this Court. He has submitted that without their implement, the appeal filed in this Court is incompetent. The learned counsel has further submitted that the appeal is time-barred by two days but there is no sufficient ground for the condonation of delay. The learned counsel has further contended that the impugned order passed by the High Court was made with the consent of Mr. Ashfaque Hussain Kiani, Advocate, the counsel for Raja Ghulam Shabbir and And leeb Sahir Butt, the appellant herein. Thus, according to the learned counsel, it would be deemed that the writ petition was dismissed as having been withdrawn in to and not only to the extent of Raja Ghulam Shabbir. The learned counsel has submitted following authorities on the point that delay in filing the petition for leave to appeal in the instant case cannot be condoned.
' In cases reported as Haji Naqeebuddin v. The State Bank of Pakistan (1971 SCM R 585) and Haji Rehmat Ullah v. Settlement and Rehabilitation Commissioner, Lahore (1970 SCM R 66), the condensation was sought on the ground of illness which was not granted in view of the fact that either the illness was not proved or the same was not of such a nature to entitle the party concerned to the condemnation of delay.
' In case reported as Gulzar Masih v. The State (1980 SCM R 37), it has been held that even if the period of limitation is computed from the date of application for grant of copy to the date of. Its delivery, the first appeal was time-barred by one day because no explanation has been given in that regard.
' In case reported as Azad Government of the State of Jammu and Kashmir v. Ch. Muhammad Latif (PLD 1983 SC (AJ&K) 70), it was held that the mere fact that the matter was being processed by different agencies of the Government was not a sufficient ground for condoning the delay, especially so when the petitioner had the knowledge of the relevant judgments.
' In case reported as Mahboob Muzaffar Din (1992 SCR 338), the delay of one day was not excused because the same was not explained by the petitioner.
' In case reported as Dr. Muhammad Iqbal Qureshi v. Azad Government (1993 SCR 111), it was observed that the knowledge of the counsel would be deemed to be the knowledge of the party and, thus, the delay was not condoned on the ground of the absence of knowledge of the impugned judgment.
5. We have given due consideration to the arguments advanced at the Bar. First dealing with the question of limitation, it may be observed that the authorities relied upon by the learned counsel for the respondent are not relevant for the resolution of the question of condemnation of delay in the instant case as is evident from the survey of the aforesaid authorities made above; the facts of the said cases are distinguishable and do not help the case of the respondent. In the instant case the question is as to whether the relevant copies were delivered to the appellant on 27-3-1999 or on 31-3-1999. It may be pointed out that nothing has been placed on the record that the appellant was given any date for the delivery of the copies applied for. The Copying Officer has to fix date for the delivery of a copy applied for. However, in the instant case according to the relevant register and the copies applied for, the same were delivered to the appellant on 27-3-1999 whereas the date given under the signature of the appellant for receiving the copies is entered as 31-3-1999.
The contention of the learned counsel for the respondent that the said date was subsequently written by the appellant on 31-3-1999 after blotting his initial signature made on 27-3-1999 is without any evidence; the register was in the custody of the Copying Officer or the Clerk. Thus, if the date of receiving the copies was subsequently changed from 27-3-1999 to 31-3-1999, they must have made complaint against the appellant to the concerned authorities. But nothing has been placed on the record that any such step was taken.
6. Even otherwise, when no date was fixed for delivery of the copies to the appellant on 27-3-1999 and 28-3-1999 to 30-3-1999 were closed holidays, the appellant is entitled to the condo nation of delay; because if the statement of the learned counsel for the appellant in the High Court is considered in the context of the application made by respondent No,1, it could not be interpreted to mean that he had consented to the withdrawal of the writ petition on behalf of the appellant, herein. Thus, irrespective of the fact that an affidavit was filed by Mr. Ashfaque Hussain Kiani, Advocate, the counsel for the appellant in the High Court, that he did not make any statement before the learned Judge showing his consent for the dismissal of the writ petition, the fact remains that the writ petition, so far as the appellant is concerned, would be deemed to be still pending, in the High Court, especially so when it is not recorded in the impugned order that the writ petition is also dismissed even to the extent of the appellant, herein; in the impugned order, the word written by the Court is 'petitioner' and not the 'petitioners', which shows that the Court only considered the case of the co-petitioner and not that of the appellant. Even otherwise, when the prayer of respondent No,1 for disposing of the writ petition pertained to Raja Ghulam Shabbir, how the writ petition filed on behalf of the appellant, herein, could be dismissed on the basis of alleged consent of the counsel for the appellant.
7. We may also point out that in case of passing an order on the basis of compromise it is incumbent upon the Court to record the compromise under Rule 3 of Order XXIII, C.P.C., which has not been done in this case. Thus, even if it is assumed that Mr. Ashfaque Hussain Kiani, Advocate, for the appellant, had made any statement regarding appellant, that would be of no legal consequence.
8. The submission of the learned counsel for the respondent that the Judge in the High Court and others are necessary parties in this Court has no substance. He has referred to some of the authorities wherein it has been held that the authority whose order is challenged should be impleaded as a party in the writ petition. In the instant case, this Court is hearing appeal against the order of dismissal of the writ petition and not an original writ petition. Therefore, the said authorities have no relevance to the present appeal; besides, the appellant has challenged the judgment of the High Court without attributing any mala fide to the Judge. If the said contention of the learned counsel for the respondent is accepted, then a Judge in the High Court who decides a writ petition or any other cause should be a necessary party in case of appeal to this Court. Thus, the contention is hereby repelled as being devoid of any force.
In the light of what has been stated above, we accept the appeal, set aside the impugned order of the High Court and remand the case with the direction that it shall proceed with the hearing of the writ petition so far as the appellant is concerned and decide the same afresh according to law.