PLJ 2006
Present: Muhammad Muzammal Khan, J.
DISTRICT COUNCIL (District
Govt.)--Appellant
versus
Ch. MUHAMMAD YASIN etc.--Respondents
R.S.A. No. 150 of 2005, decided on
5.10.2005.
Limitation Act, 1908 (IX of 1908)--
----S. 5--Punjab Local Government
(Accounts) Rules, 2001, R. 39--Condonation of delay--Departmental
misunderstandings, complications and non-availability of funds for purchase of
court-fee stamp-papers--Explanation for delay--Scope--Grounds in support of
condonation of delay prayed was restriction on issuance of temporary advance
which could be made for development purposes--Requisite court-fee could not be
purchased, due to difficulty of release of funds--Mere bald statement that there
was restriction on release of funds was not enough to come to their rescue
especially when stamp-papers appended with appeals were purchased on 16.8.2005
and inspite of it, appeals were filed after 14 days without any
explanation--Even problem if any was within department of appellants and it
could not be cited as valid ground for condonation of delay which was not
sufficient and did not justify to deprive respondents of valuable rights which
had accrued to them by lapse of appellants--Held: Law regarding condonation of
delay was firmly settled by High Court that departments cannot be given any
preferential treatment as against private litigants--Further held: Appellants
were required to ex-plain each days delay which was lacking and without it
prayer cannot be granted--Appeals dismissed as barred by limitation. [Pp. 793 to 795] A, B, C, D & E
Ch. Khurshid Ahmad, Advocate for
Appellant.
Date of hearing : 5.10.2005.
Order
This judgment proposes to decide 14 time
barred appeals, one in hand and the others, detailed in the schedule appended
herewith. All these appeals are directed against alike judgments/decrees, raise
similar questions of law/facts, arise in similar circumstances and require
interpretation/ applicability of same provisions of law and are directed
against same set of respondents. Condonation of delay occasioned in filing all
these appeals has been prayed through applications (C.M. No. 1/2005) separately
moved in each appeal, on account of some departmental misunderstandings,
complications and non-availability of funds for purchase of Court-fee
stamp-papers.
All these appeals challenged appellate
judgments/decrees dated 17.3.2004 whereby appeals of the respondents were
accepted by the learned Additional District Judge,
2.
Succinctly, collective factual background of all the cases, as
deciphered from the record, is that state land measuring 3 kanals 15 marlas and
267« square feet comprising in Khasra Nos. 2849 to 2851 situated in Chak. No.
212/RB,
"that if the shopkeepers are willing
to purchase the land in question by private treaty on prevailing market rate, a
proposal for sale may be sent to Board of Revenue through the Commissioner,
In response, desire of shopkeepers and
other occupants was transmitted to the Board of Revenue where they also filed
their undertakings on non-judicial stamp-papers, expressing their willingness
to purchase the parts of the property on the proposed price. This offer and
acceptance of sale at the agreed sale price, was claimed to have matured into
sale contracts in favour of the respondents who ultimately filed their
respective suits for declaration and specific performance, averring their
willingness to perform their part of contract by paying the price, claiming
sale price at the rate of Rs. 5,00,000/- per marla with 10% surcharge and
prayed from the Court that they be declared owners in possession of the suit
property.
3.
Appellants being amongst the defendants contested the suits by filing
their written statements wherein it was pleaded that although District Council
had shown its' willingness to purchase the land but no final decision was taken
by the Province of the
4.
Respondents being aggrieved of the decision of the trial Court, filed
their respective appeals before this Court which on enhancement of pecuniary
jurisdiction of learned District Judges, where remitted there and were fixed
before the learned Additional District Judge where the respondents succeeded as
their appeals were accepted and by reversing judgment/decrees by the trial
Court dated 31.5.1992, all the suits of the respondents were decreed on
17.3.2004. Petitioners have now filed 14 time barred appeals for setting aside
of appellate judgments/decrees, as noted above.
5.
I have heard the learned counsel for the appellants and have examined
the record with his assistance. Since by virtue of Section 3 of the Limitation
Act, 1908 it is obligatory for the Courts to advert to the point of limitation,
in the first instance, even in absence of any objection from the respondent or
the office of this Court hence, I opt to decide it first. Appellate judgments
and decrees in all the cases were announced on 17.3.2004 and application by the
appellants for getting certified copies of the judgments/decrees in all the
cases except RSA Nos. 147/2005, 151/2005 and 156/2005 were moved/applied on
21.5.2004. In these cases the certified copies were prepared on 10.6.2004 and
were delivered/issued to the appellants on 16.6.2004.
In RSA No. 147/2005 appellate
judgment/decree was dated 17.3.2004 but its copy was applied by the appellant
on 16.8.2005 which were prepared and issued to them on 20.8.2005. In other two
cases i.e. RSA No. 151/2005 and RSA No. 156/2005 appellate judgment/decree was
announced on the same day i.e. 17.3.2004, certified copies of which were
applied by the appellants on 23.8.2005 which were prepared and issued to the
appellants on 27.8.2005.
6.
All the 14 appeals were to be filed within 90 days under Article 156 of
the Limitation Act, 1908 obviously after excluding time spent on getting
certified copies of documents required to be filed along with appeals under
Order XLI, Rule 1 CPC but are hopelessly time barred. The appeals in which
certified copies of the judgments/decrees were issued to the appellants on
16.6.2004, those appeals could have been filed till 5.7.2004 after excluding
the time spent in getting the certified copies under Section 12 of the Act
(ibid) whereas in RSA No. 147/2005, it could have been filed within a period of
three months which had already lapsed when the certified copies were applied
i.e. on 16.8.2005. Similarly, in RSA No. 151/2005 and RSA No.156/2005 copies
were applied long after the expiry of period of limitation i.e. 23.8.2005.
7.
Second appeals with numbers 146/2005, 148/2005 to 150/2005, 152/2005 to
155/2005 and 157/2005 to 159/2005 were filed on 6.9.2005 each of those were
barred by limitation by one year and two months whereas in the remaining
appeals limitation had already expired when the certified copies were applied
as earlier observed.
8.
Appellants moved applications under Section 5 of the Limitation Act,
1908 (C.M.No. 1/2005) and prayed condonation of delay in filing the appeals. In
each appeal, such application is verbatim reproduction of each other. Grounds
in support of condonation of the delay prayed, were that Zila Councils were
dissolved by Punjab Local Government Ordinance, 2001 and their properties, assets
and liabilities were succeeded by the District Governments by virtue of Section
180 of the Ordinance but under Rule 39 of the Punjab Local Government
(Accounts) Rules, 2001 there was a restriction on the issuance of temporary
advance which could only be made for development purposes hence, the requisite
Court-fee could not be purchased, due to difficulty of release of funds. The
other reason given was that there was ambiguity as to in whose name the appeals
be filed against the appellate judgments/decrees which generated out of
pendency of two other appeals before this Court (RSA No. 202/2004 and RSA No.
203/2004) which were filed in the name of Province of the Punjab. These
applications were supported by affidavit of DCO praying condonation of delay of
397 days in filing the appeals.
9.
Primarily there are two grounds taken by the appellants in support of
prayer of condonation of delay, first being that non-availability of funds are
purchase of Court-fee stamp-papers and the other ambiguity about the person in
whose name the appeals were to be filed but none of those reasons was either
specified with dates nor was made out of the applications under Section 5 of
the Limitation Act 1908, as drafted. Appellants have not explained as to why
certified copies were not applied for long two months as in most of the cases,
as noted above, copies were applied on 21.5.2004. The appellants in Paragraph 3
of the applications attempted to explain that on account of dissolution of Zila
Council which were taken over by District Government, there remained some
ambiguity about filing of appeals but they have themselves asserted that this
ambiguity stood resolved under Punjab Local Government Ordinance, 2001 District
Governments successfully worked their first tenure and were functioning when
the appellate Court announced judgments on 17.3.2004. The appellants did not
mention which actual dates when they moved for sanction/allocation of funds for
purchase of Court-fee/stamp-papers and when those were sanctioned by the District
Government and mere bald statement that there was restriction on release of
funds, was not enough to come to their rescue especially when the stamp-papers
appended with the appeals were purchased on 16.8.2005 and inspite of it, the
appeals were filed after 14 days without any explanation. It is deciphered from
the applications under discussion that on the last day for filing of appeals,
funds were available to the appellants for purchase of Court fee and there was
no difficulty of funds, ambiguity of the name of the individual for filing of
appeals or closure of this Court on account of summer vacations and this date
was 5.7.2004. During summer vacations, office of this Court remained open for
entertaining case involving limitation thus protection of Section 4 the
Limitation Act was not available to the appellants. Inspite of the fact that
appellants have not produced any document showing their efforts to file the
appeals, earlier to 1.9.2005, as they have themselves purchased stamp-papers
only on 16.8.2005 and all the documents including memorandum of appeals,
affidavits and opening-sheets were prepared only on 1.9.2005 hence their stance
that this Court remained closed during summar vacations from 1.8.2005 to
31.8.2005 is not acceptable for condonation of delay, especially when they have
not explained delay from 5.7.2004 to 1.8.2005.
10.
Besides the fact that there is no sufficient cause/reason for
condonation of delay, the one furnished has also not been satisfactorily
explained, thus the same has no legal value and on the basis thereon, the
appellants cannot be given any different treatment, as compared to an ordinary
litigant. Assuming for the sake of arguments that the appellants have correctly
narrated the factual position, even then, problem if any was within the
department of the appellants and it could not be cited as a valid ground for
condonation of delay which was not sufficient and did not justify to deprive
the respondents of valuable rights which had accrued to them by lapse of the
appellants. Law regarding condonation of delay is firmly settled by this Court
to the effect that Government departments cannot be given any preferential
treatment as against private litigants. The Hon'ble Supreme Court in the case
of Chairman/Secretary, Pakistan Railways, Ministry of Railways, Government of
Pakistan,
11.
Appellants failed to explain inordinate delay occasioned on account of
their negligent/indolent conduct. Initially they applied certified copies
without any cause after two months then they consumed more than a year in
filing the appeals after getting the copies from the concerned copying agency.
Under law, appellants were required to explain each day's delay which was
lacking in all these cases and without it, prayer cannot be granted solely on
the basis of judgment relied by the learned counsel for the appellants in the
case of Aamir Ikram and 10 others versus District Health Officer, Vehari and
others (PLD 2003 SC 266). In this case, the Hon'ble Supreme Court condoned the
delay of 146 days in filing civil petition for leave to appeal for the reasons
that out of impugned judgment, the Hon'ble Supreme Court had already granted
same relief to the other employees of the same department. This judgment
proceeds on all together different facts/circumstances and laid down a
different proposition of law, hence on the basis of it, no relief can be granted
in favour of the appellants. RSA No. 202/2004 and RSA No. 203/2004 are no doubt
pending but in those, on the first hand, limitation has not been condoned by
this Court and on the other hand, there is a dispute regarding tampering of
record of copying agency concerned by the appellants therein, for bringing the
appeals before this Court within limitation. Above all, these appeals have been
filed by the Government of Punjab, the owner of the property, whereas
appellants of the appeals under discussion, were lease holders which too, had
been resumed leaving no right with them in the property.
12.
For the reasons noted above, there is no ambiguity that appellants had
neither any sufficient cause for condonation of an inordinate unexplained delay
nor the same was asserted or made out from the file hence, C.M. No. 1/2005 is
devoid of any merit and consequently, same is disallowed declining condonation
of delay and all the appeals are dismissed as barred by limitation, in limine.
(Aliya
Sattar Chaudhry) Appeal dismissed.