Instant Regular Second Appeal is directed against the judgment and decree, dated 24-6-1971 passed by the learned District Judge, Rawalpindi whereby he confirmed the judgment and decree, dated 28-3-1970 passed by the Administrative Civil Judge, Rawalpindi.
2. Briefly stated the facts are that on 1-12-1954 the plaintiff/appellant joined the service of Government of Pakistan as Laboratory Attendant, in the General Headquarters Science Laboratories (Chaklala) Rawalpindi. In 1956, he became a viewer and held that post till 14-11-1960.
On 20-11-1960 he was appointed as a Storeman and later on was transferred to Inspection Depot Armaments, Wah Cantt., in the same capacity, where he was confirmed in 1962. On 18-8-1966, an ex-employee of the Inspection Depot Armaments, Wah Cantt., reported a criminal incident against the appellant and two other employees. Prior to that report, an accident resulting in the death of the appellant's immediate incharge Subedar A.I Ahmad occurred. His death was suspected to be the result of a planned scheme, involving one Lt.-Col. A.R. Awan of E.M.E. As a result of suspicion the said Lt.-Col., was suspended from service but was later on reinstated and posted as the Commanding Officer of the Organization where the appellant was working. Lt.-Col. Awan nourished grudge against the appellant because he was one of the sympathizers of later Subedar A.I Ahmad.
Apprehending a foul play the appellant on 20-8-1966 made an application to the Director I.T.D., M.G.O. Branch, G.H.Q. Rawalpindi, about the abnoxious behaviour of the Lt.-Col. Awan and the persons patronized by him. On 16-9-1966 another application was submitted by the appellant to the aforesaid Officer requesting him for posting at some other place. No action was taken on said applications. On 29-9-1966 appellant was served a charge-sheet to the effect that he had cheated an ex-driver at the Ayub National Park, Rawalpindi. He was suspended simultaneously without making any enquiry and supplying him the copies of the relevant documents. Later on a Court of Enquiry consisting of Major Shaukat A.I Qureshi and Captain Abdul Wahid was convened by Lt.-Col. Awan. As both the officers comprising the Court of Enquiry were the subordinates to the said Lt. Colonel, so on 19-6-1966, an application was submitted by the appellant that he did not expect fair trial at the hands of Court of Enquiry and requested that some impartial Officer be appointed. This application also met the same fate. The Court of Enquiry did not conduct itself properly, but committed so many irregularities during the course of proceedings and ultimately ordered the appellant's dismissal on 28-1-1967. The appellant preferred an appeal before the Director I.T.D., M.G.O. Branch, G.H.Q., Rawalpindi but the appeal was never heard and decided. On 23-6-1967 the appellant issued a notice to the respondent under section 80 of the Code of Civil Procedure calling upon it to redress his grievance but to no avail. The appellant, thus, was constrained to file a suit for declaration praying that the order of dismissal be declared illegal, ultra vires and malicious for reasons mentioned in the plaint. The suit was resisted by the defendant/respondent whereby contentions of the plaintiff/appellant were controverted.
3. The following issues were framed by the trial Court in the light of pleadings of the parties:--
(1) Whether the order of the dismissal of the plaintiff from the service is illegal, ultra vires and malicious on the grounds mentioned in para. 14 of the plaint? OPP
(2) Whether the plaintiff had no guarantee of service under the Constitution of Pakistan? OPD
(3) Whether the plaint is liable to be rejected under Order 7, Rule 11 of C.P.C.? OPD
(4) Whether this Court has no jurisdiction to try the suit? OPD
(5) Relief.
4. In support of their respective stand both the parties adduced evidence and finally the suit was dismissed by the trial Court vide judgment and decree, dated 28-3-1970. The same was assailed by way of appeal which also failed as is evident from the judgment and decree, dated 24-6-1971.
Feeling dissatisfied with the judgments and decrees of the Courts below the plaintiff/appellant has filed the instant Regular Second Appeal on 28-3-1973. Alongwith this appeal he also moved an application under section 5 of the Limitation Act for condonation of delay in filing the appeal.
5. Arguments have been heard and record perused.
6. It is submitted by the learned counsel for the appellant that his appeal was dismissed on 24-6- 1971 whereas he filed the instant R.S.A. On 28-3-1973, as such after excluding the requisite period it is barred by 527 days. He submitted that delay in filing the instant appeal is due to the fact that the appellant was suffering from asthma and has also attached a certificate to that effect alongwith application for condonation of delay which is also supported by an affidavit. He further submitted that as his application for condonation of delay has not been controverted so it may be presumed that he was suffering from an ailment which made it impossible for him to file this appeal prior to 28-3-1973. He, thus, argued that delay in filing the appeal be condoned. This contention has been vehemently controverted by the learned counsel for the defendant/respondent.
7. Since the appeal is being disposed of on the point of limitation, so there is no need to dilate upon the other contentions of the parties.
8. Admittedly the suit filed by the plaintiff/appellant was dismissed on 28-3-1970 and his appeal was dismissed on 24-6-1971. He has filed the instant R.S.A. On 28-3-1973 and has prayed that delay of 527 days in filing the said appeal be condoned. He has sought the condonation of delay on the ground that he was suffering from bronchial asthma and in support of his contention has annexed a photostat copy of certificate issued by Dr. Major W. Karimi, dated 23-3-1973. He has not annexed any other document to prove that he was unable due to said disease to approach his learned counsel for filing appeal. Admittedly delay of each and every day in filing the appeal has to be explained by the present appellant, seeking such condonation. The onus has not been discharged by the plaintiff/appellant. It is, thus, clear that appellant has miserably failed to prove that he was prevented by any sufficient cause to file the instant appeal within the stipulated period of 90 days form 24-6-1971.
9. Accordingly application for condonation of delay is devoid of any force and the same is hereby dismissed. Resultantly appeal fails and is dismissed.