R.A. No. and Name of the applicantDate of judgment/decree passed by A.D.J.Date of judgment/ decree passed byThe numbers of bags Urea/D.A.P.JUDGMENT ' S. ALI ASLAM JAFRI, J.---By this common order I propose to dispose of these 14 Revision Applications bearing Nos.168 of 2000 to 181 of 2000 as common points of law and facts are involved in all these revisions.
2. The applicants in their respective suits filed against the respondent Nos.1 to 4 sought a comma n type of relic f which reads as follows:--
(a) For judgment and decree against the defendants jointly and severally, declaring that the plaintiff is not liable to pay any amount to defendant No,4 and that the demand of money by defendants Nos.2 and 3 on behalf of defendant No,4 is illegal, mala fide and ultra vires.
(b) For permanent Injunction against the defendants, jointly and severally, restraining them from recovering any amount alleged to be SASO dues from the plaintiff, themselves or through any of their subordinates or any (there Agency or anybody else, in any manner whatsoever.
(c) Costs of this suit to be borne by the defendants jointly and severally.
(d) Any other relief this Honorable Court deems just and proper in favour of the plaintiff.
3. The case of the applicant plaintiffs as disclosed in their respective suits is that they are agriculturist within the meaning of Sindh Agriculturist Relief Act, 1879. During the years 1976-77 in some cases and during the year 1991-92 in sone other cases, the plaintiffs had applied to defendant No,4 for grant of fertilizers, the details whereof are as under: Senior Civil Judge with Suit No.applied for and the year 168/2000 (Abdullah) 24-4-2000 30-4-1998 (59/94)300(1976-77)
169/20(10 (Abbas Ali)22-4-2000 25-4-1998 (55/94)200 (1976-77)
170/2000 (Syed AhsanAli Shah)25-4-2000 30-4-1998 (64/94)500 (1991-92)
171/2000 (Ghulam Habib)22-4-2000 30-4-1998 (66/94)500 (1991-92)
172/2000 (Mir Khan) 22-4-2000 16-5-1998 (72/94)500 (1991-92)
173/2000 Ghulam Mustafa)22-4-2000 16-5-1998 (70/94)500 (1991-92)
174/2000 (Ishaque) 21-4-2000 9-5-1998 (71/94)500 (1991-92)
175/2000 (Jam Shoukat Ali)21-4-2000 25-4-1998 (58/94)300 (1976-77)
176/2000 (Tahro Khan)25-4-2000 30-4-1998 (62/94)500 (1991-92)
177/2000 (Mithal) 21-4-2000 23-5-1998 (69/94)500 (1991-92).
178/2000 (Dost Muhammad)21-4-2000 9-5-1998 (68/94)500 (1991-92)
179/2000 (Aslam) 25-4-2000 23-5-1998 (63/94)300 (1991-92)
180/2000 (Jairam) 25-4-2000 9-5-1998 (65/94)200 (1991-92)
181/2000(Karimadad)24-4-2000 30-4-1998 (61194)300 (1991-92)
4. However, their request was not acceded to and the fertilizer was not supplied despite repeated requests and applications. It is their case that after a long period of about 13 years the applicants/plaintiffs were astonished when a notice was sent to them by Assistant Commissioner, Tando Adam/respondent/defendant No,3, under the directions of Deputy Commissioner, Sanghar respondent/defendant No,2, to appear before Assistant Commissioner, Tando Adam, and to pay the amount allegedly outstanding against them in respect of the fertilizer supplied to them by respondent/defendant 'No,4 on credit basis. According to the applicants/plaintiffs they were also threatened that if the amount claimed was not paid within fifteen days from the receipt of the said notice coercive measures for recovery of amount due shall be taken against each applicant/plaintiff. While denying their liability to pay any such amount each applicant/plaintiff filed a suit for the reliefs aforementioned.
5. All the respondents/defendants were served but written-statement was filed only by respondent/defendant No,4 stating therein that each applicant/plaintiff had applied for certain number of bags of fertilizer as shown in each notice on credit basis which was supplied after observing all formalities and various necessary documents were executed in favour of the respondent/defendant No,4 by each loanee and his guarantor but despite repeated demands the loanees failed to make payment of the amount due so as to square-up their liabilities. It was denied that any threat for coercive measures were issued but, in fact, each applicant/plaintiff was informed that in case of non-payment of the amount of the arrears of SASO, legal action for recovery shall be taken for the amount due as dues of SASO are recoverable as arrears of land revenue. It was categorically stated that legal procedure shall be followed and the respondent/defendant No,4 will recover the amount due as per law and procedure. Certain legal points regarding the suits being undervalued for the purpose of court-fee and jurisdiction and the suits being barred under section 42 of the Specified Relief Act and Sindh Land Revenue Act were also raised.
6. The learned trial Court framed the followed issues in each case:--
(1) Whether the plaintiff was supplied fertilizer Urea/DAP on loan basis from defendant No,4? If so, how many bags?
(2) Whether plaintiff is not liable to pay any amount to defendant No,4?
(3) Whether the demand if any by the defendants Nos.2 and 3 on behalf of defendant No,4, is illegal, mala fide and ultra vires?
(4) Whether the suit is not maintainable?
(5) Whether the Court has no jurisdiction to entertain and try the suit!
7 . It appears that applicant/plaintiff in each case examined himself whereas the cross- examination was reserved at the request of learned counsel for respondent/defendant No,4 However,' the cross-examination was not conducted at subsequent dates as such right of cross- examination was taken off from respondent/detendant No,4. The side of the applicant/plaintiff was closed and suit was fixed for evidence of defendant side. On an application from learned counsel for respondent/defendant No, 4 under Order 18, Rule 17 read with section 151, C.P.C. The order of taking of right of cross-examination was recalled and another opportunity was provided to the respondent/defendant No,4 to cross-examine the applicant/plaintiff but this opportunity was also not availed and the respondent/defendant No,4 and his Advocate remained absent, hence the said order was recalled and the matter was put off for the evidence of defendants' side but no evidence was adduced and after closing the side the matter was put off for final arguments. It further appears that no arguments were advanced from the side of the respondents/defendants and the learned trial Court proceeded to decide the suits. Issue No,1 was decided in negative whereas Issues Nos.2, 3 and 4 were decided in affirmative and while deciding Issue No,5 in negative each suit was decreed as prayed with no order as to costs under Issue No,6 on various dates as shown in para.3 above:
8. Against the judgments and decrees passed on various dates from 25-4-1998 to 23-5-1998, first civil appeals were filed in each case of December, 1998 though the suits were decreed in the months of April_ and May, 1998 on different dates. It appears that the respondent/defendant No,4 had applied for copies of judgment and decree on 20-7-1998 (after about 58 days to 80 days of judgments and decrees in various suits) and the copies were delivered on 21-10-1998. It is pertinent to note that the respondents/defendants Nos.1 to 3 did not file any appeals at all. The learned Additional District Judge, Tando Adam, while condoning the delay in filing of the appeals remanded the suits to the learned trial Court with a direction to give opportunity to both parties for leading evidence if they desire so and to decide the suits afresh within a period of three months from the date of judgment and decree in each appeal.
9. Initially appeals under Order 43, rule 1(u), C.P.C. Were filed before this Court against the judgments and decrees passed by the learned Additional District Judge, Tando Adam. On a query from the Court regarding maintainability of the appeals the learned counsel prayed that in view of the case-law reported as Muhammad Yousuf v. Khaarain Bibi (1995 SCM R 784) the said appeals be treated as revision applications. By an order dated 24-7-2000 such oral request was granted. Each appeal was treated- as revision and admitted for regular hearing to examine that in view of the case-law reported as Divisional Forest Officer and others v. Haji Sher Muhammad (2000 CLC 650 the Government Department could be given special treatment by condoning inordinate and unexplained delay in filing the appeals when the law requires that delay of each day is to be explained.
10. I have heard Mr. S. Ahsan All Shah, Act, ocate for the applicants in each revision application, and Mr. Masood A. Noorani, Assistant Advocate-General, Sindh for respondents Nos.1 to 3. Mr. Dost Muhammad Sirai, Advocate has appeared for the respondent/defendant No,4 Director SASO Sindh at Sanghar. 1 have also gone through the judgments passed by the two Courts below.
11. Mr. S. Ahsan Ali Shah, learned counsel for the applicants/plaintiffs, has vehemently urged that the conduct of the respondents/defendants before the trial Court shows callous negligence on the part of the department. So far the respondents/defendants Nos.1 to 3 are concerned they did not prefer to contest the suits or to file an appeal against the judgments of the learned trial Court for the reasons best known to them. He has further pointed out that perusal of the record of the suits shows that cross-examination of the applicants/plaintiffs was not conducted though sufficient opportunity was given and even the witness was recalled at the request of respondent/defendant No,4. The respondent/defendants also failed to adduce any evidence in rebuttal hence there was no option left with the learned trial Court but no decree the suits as prayed. He has further pointed out that appeal in each case was hopelessly time-barred before the First Appellate Court. Suits were decreed in some cases on 30-4-1998 and in some other cases on 25-4-1998, 9-5-1998, 16-5- 1998 and 23-5-1998, but the applications for copies of judgments and decrees were filed on 20-7- 1998 when the time to file appeals had already expired, court-fee stamp to be affixed on certified true copies of judgments and decrees were not supplied for about three months and it was only on 21-10-1998 that the court-fee stamps were supplied. After receiving the judgments and decrees on the same day the respondent/defendant No,4 again slept over their right to file appeals and chosen to file the appeals in December, 1998. Thus, from all angles the appeals were hopelessly time-barred. The application under section 5 of the Limitation Act and the affidavit filed in support thereof in each appeal are vague and do not show any cogent reasons or grounds for such inordinate delay when the law requires that delay of each day is to be explained. Merely the fact that sanction to file the appeals was accorded by the Managing Director of SASO on 1-12-1998 (that too is in respect of F.C. Suit No,55 of 1994 only) can be no ground for condonation of delay.
12. In support of his contention Mr. S. Ahsan Ali Shah, learned counsel for the applicants/plaintiffs, has placed reliance on Commissioner of Income Tax v. Rais Pir Ahmad Khan (1981 SCM R 37) wherein it has been held as under:-- "----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. "
' It was further held in the same judgment as:-- ' "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 limitation and does not constitute a sufficient ground for condonation of delay."
13. In the said report their Lordships have observed that despite the position having been clarified by the Hon'ble Supreme Court and High Courts the Government departments with all their resources continue to delay filing of cases in time with loss to the Government and the public interest. Though, the Government was directed to organize their business that legal cases are not unnecessarily delayed, it appears that no positive steps have been taken by the Government so far and large number of cases against the Government go unattended resulting in tremendous loss of the public exchequer. The Government should set some example by taking appropriate actions against the persons responsible for such delay and negligence and set example for other Government Officials.
14. The learned counsel has also placed reliance on a number of authorities including Divisional Forest Officer and others v. Haji Sher Muhammad (2000 CLC 650) where Rashid Ahmad Razvi, J. (as he then was) while taking into consideration the relevant law on the point has categorically held that the reason for that the matter was delayed as department was awaiting the approval from the Solicitor is not a sufficient ground to condone the delay of 13 months. The matter was considered as a clear case of negligence on the part of Government Officials. Reliance was placed on the case of Lahore High Court, Lahore v. Nazar Muhammad Fatiana and others (1998 SCM R 2376) wherein it was held as under:-- "The latest view seems to be that the Government cannot be treated differently that an ordinary litigant while considering the question as to whether sufficient cause has been shown for the condonation of delay under section 5 of the Limitation Act."
15. Mr. Masood A. Noorani, learned Assistant Advocate-General, Sindh, and Mr. Dost Muhammad Sirai, learned counsel for respondent No,4, have fully supported the order passed by the learned Additional District Judge, Tando Adam, remanding the suits to the learned trial Court. They have argued that valuable interest of the department in respect of public revenue is involved and it is a cardinal principle of law that nobody should be condemned unheard. They have further argued that the reason for condonation of delay in filing the appeals as disclosed in the applications under section 5 of the Limitation Act and the affidavits filed in support thereof are valid and genuine. No prejudice will be caused to the other side if the cases are decided on merits by the learned trial Court on the basis of the evidence of the parties after providing a chance to respondents/defendants to adduce their evidence and to place on record the material in support of their cases and to argue the matter to show that the suits tiled by the applicants/plaintiffs are not maintainable.
16. I do not find any force in the contentions of the learned counsel for the respondents/defendants.
The respondents/defendants were duly served and failed to contest the suits. It is also without any substance to say that they have been condemned unheard. Despite opportunity given to cross- examine the witness after having been recalled, the defendants failed to conduct the cross- examination. Evidence was also not adduced on behalf of any of the defendants and it appears that a walkover was allowed to other side. Their conduct has remained negligent throughout. It is the most unfortunate' aspect 'of the matter that various Government departments or even autonomous bodies do not take care at the proper time to contest, defend or prosecute the interest of their department with the result that most of cases go undefended and not prosecuted properly. The reason for such carelessness or lack of interest is obvious. It has become the tendency of a large number of Government officials not to pay any attention to any file or Government work unless they are paid something by the person interested in such work or movement of file. Unfortunately, it is not possible in such case's where it is the Government or the department alone whose interest is to be safeguarded by its employees as a part of their duty. On the contrary the private person having an interest adverse to that of the Government may succeed in getting such papers and files either misplaced or dumped in cold storage unless the matters become time-barred Despite repeated verdicts and directions from Courts at all levels including the Supreme Court. Of Pakistan no such example has come to the notice of the Courts or the public at large that a delinquent official responsible for such delay or negligence in defending or prosecuting the interest of the Government/public exchequer has been taken to task and ordered to make good the loss sustained by the Government. The Government shall go on suffering such losses at the hands of its employee who are in habit of behaving in such callous manner, unless an example is set up by awarding exemplary punishments.
17. It is well-settled principle of law that limitation creates a vested right in favour of the other side.
Reference can be made to the case of Muhammad Hussain v. Settlement and Rehabilitation Commissioner and others (1975 SCM R 304) wherein it has been held as under:-- "In civil matter a valuable right accrues to the other side by lapse of time and it is necessary that each day's delay should be satisfactorily explained."
18. In the case of Commissioner of Income-tax v. Rais Pir Ahmed Khan (1981 SCM R 37), it has been held that Government cannot claim to be treated in any manner differently from ordinary litigant and the ground for delay in filing the appeals or revisions that the matter remained under examination at different departmental level has never been considered to be a valid ground for extension of period of limitation. I would like to place on record an observation made in the case of Government of Balochistan through Secretary Education and 2 others v. Juma Khan (1994 M LD.
2315), where his Lordship Iftikhar Muhammad Chaudhry, J. (as his lordship then was) has observed that Government/official institutions were not entitled for any special indulgence in cases, where time-barred proceedings had been instituted. ##TE#
19. I have carefully gone through the judgment passed by the learned ADJ, Tando Adam and do not find any cogent reasons or grounds having been advanced in support of his order for condonation of delay and allowing the appeals. Resultantly, these revision applications are allowed, judgments and decrees passed by the Appellate Court/ADJ, Tando Adam are hereby set aside and the judgments and decrees passed by the learned trial Court are restored. Before parting with this judgment I would like to observe that a copy of this judgment be sent to the Chief Secretary, Sindh and Managing, Director, SASO to inquire into the matter and fix the responsibility of the concerned officer(s) as well as other concerned persons for such negligence and intimate the Registrar of this Court within six (6) months from the date of this order as to what action has been taken against such persons responsible for causing such tremendous loss to the Government either due to their negligence or being in collusion with the other side. There shall be no order as to costs.