PLJ 2014 Lahore 1 (DB)
[Multan Bench Multan]

Present: Muhammad Qasim Khan and Ibad-ur-Rehman Lodhi, JJ.

MINISTRY OF DEFENCE and 3 others--Appellants

versus

MUHAMMAD ATHER--Respondent

I.C.A. No. 208 of 2012 in W.P. No. 7537 of 2009, decided on 26.3.2013.

Limitation Act, 1908 (IX of 1908)--

----S. 3 & Art. 151--Law Reforms Ordinance, 1972, S. 3--Intra Court Appeal--Post remand proceedings--Limitation--Question of--Maintainability of I.C.A. on touch stone of limitation--Delay occasioned in filing of I.C.A--Validity--Limitation provided for filing an appeal from a decree or order of a High Court in exercise of its original jurisdiction is twenty days from date of decree or order as provided under Art. 151 of First Schedule provided u/S. 3 of Limitation--Starting period is given as date of decree or order and present filing of appeal is not given any relaxation for exclusion of period spent in obtaining certified copies--When CPLA was ordered to be converted into Intra Court Appeal--Although there is no concept of exclusion of time spent in obtaining certified copies in case an I.C.A. is to be filed, nevertheless after exclusion of the period of six days--Date of submission of form in copying agency for obtaining certified copies of record, when copies were prepared even then, it would become 52nd day, when I.C.A. was considered to have been filed--Period of limitation provided under Art. 151, Limitation Act, I.C.A. was barred by 32 days on date of filing--While converting C.P.L.A into an I.C.A and by remitting back to High Court, left it open for High Court to decide appeal in accordance with law subject to all just and valid objections--High Court an examine objection with regard to limitation--Delay in filing of Intra Court Appeal would not become liable to be condoned as appellants had failed to show any sufficient reasons for condonation of such delay--Application was dismissed. [Pp. 3, 4 & 5] A, B, C & D

PLD 2001 SC 355 & 1999 SCMR 644, ref.

M/s. Khawaja Noor Mustafa, Deputy Attorney-General and Rana Javed Akhtar, Standing Counsel for Appellants.

Chaudhry Shakir Ali, Advocate for Respondent.

Date of hearing: 26.3.2013.

Order

Writ Petition No. 7537 of 2009 was allowed by a learned Single Judge of this Court on 06.05.2011. The present appellants feeling aggrieved of the said findings preferred CPLA No. 1008 of 2011 titled Ministry of Defence and 3 others v. Muhammad Ather" before the Hon'ble Supreme Court of Pakistan, which came up for hearing before the apex Court on 24.09.2012, and the same was disposed of in the following manner:--

"4. It is not disputed that the order passed by the Single Judge of the Lahore High Court was amenable to Intra Court Appeal. When so petition for leave to appeal could not have been straight away filed in this Court. We, however, instead of dismissing this petition convert it into an ICA by following the dictum rendered in the case of Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539) and direct the office to send it back to the High Court for decision in accordance with law subject to all just and valid objections. This petition thus stands disposed of".

2. In post-remand proceedings, we have heard the learned counsel for the appellants.

3. The respondent appeared through his learned counsel at limine stage and by means of a preliminary objection, questioned the maintainability of the present Intra-Court Appeal on the touchstone of limitation and the learned Deputy Attorney-General/Standing Counsel were asked first to cross the hurdle of limitation.

4. Civil Miscellaneous No. 6558 of 2012 has been moved by the appellants under the provisions of Section 14 of the Limitation Act, 1908, with a request to condone the delay caused in filing of Intra-Court Appeal. In para-5 of the said Civil Miscellaneous, the stance of the appellants is that the delay occasioned in filing of the Intra-Court Appeal was neither deliberate nor intentional or wilful but it was occasioned only on account of the reasons mentioned in the preceding paragraphs of the said Civil Miscellaneous.

5. We have minutely gone through Paragraphs No. 1 to 4 of the said Civil Miscellaneous, but except narration of facts with regard to the passage of judgment passed by this Court in Writ Petition No. 7537 of 2009 and obtaining the copies thereof, the filing of CPLA and then returning the CPLA after its conversion into ICA to this Courts, no reason or justification has been extended by the appellants justifying such delay in filing the Intra-Court Appeal, in all these paragraphs, which are the sole basis of the prayer made in the Civil Miscellaneous for condonation of delay.

6. The limitation provided for filing an appeal from a decree or order of a High Court in the exercise of its original jurisdiction is twenty days from the date of decree or order as provided under Article 151 of the First Schedule provided under Section 3 of the Limitation Act, 1908. Column No. 3 of the said Schedule is meant for mentioning of time from which period begins to run and against Serial No. 151 in Column No. 3, the starting period is given as "the date of the decree or order" and the present filing of appeal is not given any relaxation for exclusion of the period spent in obtaining the certified copies of the relevant record.

7. The judgment passed by the learned Single Judge was delivered on 06.05.2011. On behalf of the appellants, an application for obtaining certified copies of the relevant record was made on 12.05.2011 and the record was prepared in shape of certified version on 17.05.2011. CPLA was filed on 09.07.2011, which was the 58th day of passage of the judgment by the learned Single Judge of this Court in Writ Petition No. 7537 of 2009.

8. The Hon'ble Supreme Court of Pakistan when disposed of the said CPLA, made certain observations, which are of significance for the purposes of disposal of the present Civil Miscellaneous seeking condonation of delay in filing of Intra-Court Appeal. The order was passed by the Hon'ble Supreme Court of Pakistan on 24.09.2012 in presence of both the parties and it is clearly noted that it was never disputed before the apex Court that the judgment passed by the learned Single Judge was amenable to Intra-Court Appeal. It is also noteworthy that when the CPLA was ordered to be converted into ICA, it was ordered to be sent back to the High Court for "decision in accordance with law subject to all just and valid objections".

9. The CPLA was allowed to be converted into ICA and at the cost of repetition the date of filing of CPLA is once again provided viz. 09.07.2011. When the CPLA was converted into ICA and the same is being heard by us as ICA, the date of filing CPLA must be taken as a date of filing of ICA. As noted earlier, the date of filing of CPLA was the 58th day from the date, when the learned Single Judge passed the judgment in Chambers on 06.05.2011.

10. Although there is no concept of exclusion of the time spent in obtaining the certified copies of the relevant record in case an ICA is to be filed, nevertheless after exclusion of the said period of six days (from 12.05.2011, the date of submission of form in Copying Agency for obtaining certified copies of relevant record to 17.05.2011, when the copies were prepared), even then, it would become 52nd day, when the ICA was considered to have been filed. Keeping in view the period of limitation provided under Article 151 of the Limitation Act, 1908, the ICA was thus barred by 32 days on the date of its filing.

11. The Hon'ble Supreme Court of Pakistan while converting the CPLA into an ICA and by remitting the same back to this Court, left it open for this Court to decide the appeal in accordance with law subject to all just and valid objections, thus, we can examine the objection raised by the respondent with regard to the limitation.

12. The Hon'ble Supreme Court of Pakistan in case of Mst. Khadija Begum and 2 others vs. Mst. Yasmeen and 4 others (PLD 2001 Supreme Court 355) while dealing with the question of limitation has categorically held that sufficient cause must be shown by the person seeking condonation of delay, which means "circumstances beyond control of party concerned" and that, nothing shall be deemed to be done in good faith, which is not done with due care and attention.

13. The Hon'ble Supreme Court of Pakistan in case of Federation of Pakistan and 2 others vs. Khurshid Ahmed and another (1999 SCMR 664) has dealt with the question of availability of ICA or otherwise and interesting factor is that in the reported matter, the General Headquarters (GHQ) was a party to the litigation and after such authoritative findings by the Hon'ble Supreme Court of Pakistan, the General Headquarters must become wiser and aware of the remedy available under the law but notwithstanding such position a remedy by way of CPLA was availed, while ICA was undeniably available to the aggrieved party. It is a settled position of law that in case of time barred proceedings, defaulting party must explain the delay of each day caused in preferring a valid proceedings in accordance with law.

14. The learned Deputy Attorney-General has attempted to argue that they became aware of the position that ICA was the proper remedy only on 24.09.2012, when the Hon'ble Supreme Court of Pakistan disposed of their CPLA.

The learned counsel for the respondent, however, has drawn our attention to CMA No. 2820 of 2011 in CPLA No. 1008 of 2011 filed on behalf of the present respondent before the Hon'ble Supreme Court of Pakistan in such pending petition on 21.07.2011 and in para-3 thereof, an objection was specifically taken to the effect that the petitioners therein/appellants herein had bypassed the forum of ICA under Section 3 of the Law Reforms Ordinance, 1972 and by referring such CMA, the learned counsel for the respondent argued that at least on 21.07.2011, the appellants must be presumed to have become aware of the objection with regard to the availability of remedy in shape of ICA for the appellants, even then the appellants waited till disposal of the CPLA by the Hon'ble Supreme Court of Pakistan and have not taken any remedial steps after having become aware of availability of remedy of ICA, which shows their conduct as casual and irresponsible one towards their affairs.

15. From whatever angle, we adjudge, the delay in filing of ICA would not become liable to be condoned, as the appellants have failed to show any sufficient reasons for condonation of such delay.

16. For all what has been discussed above, we see no reason to condone the delay in filing of ICA No. 208 of 2012; resultantly, Civil Miscellaneous No. 6558 of 2012 is dismissed.

17. Since the Civil Miscellaneous has been dismissed and the delay caused in filing of ICA has not been condoned; therefore, the ICA is also dismissed as being barred by time.

(R.A.) I.C.A. dismissed