2020 C L C 1498
[Balochistan (Sibi Bench)]
Before Abdul Hameed Baloch, J
GOVERNMENT OF BALOCHISTAN through Collector Kachhi and another ----
Petitioner
Versus
HAZAR KHAN and others ----Respondents
Civil Revision Petition No.(S)43 of 2015, decided on 18th November, 2019.
(a) Civil Procedure Code (V of 1908) ---
----S.96 ---Limitation Act (IX of 1908), S.5--- Appeal ---Limitation ---Condonation of delay---
Requirements ---Appeal was dismissed being time barred ---Validity ---Appellants filed appeal
with delay of thre e years and eleven months without any explanation---Defendants though
had knowledge that matter was subjudice before the Trial Court ---Limitation created a right
in favour of the other side if appeal was time barred---Party seeking condonation of delay
had to file application and justify the reason of such delay---High Court had discretion to
condone delay but such discretion was to be exercised judiciously--- Government could not
claim to be treated differently than an ordinary litigant in matter of limitation ---Appellants
had failed to explain the delay in filing of appeal before Appellate Court ---Law of limitation
had to be strictly construed---Revision was dismissed, in circumstances.
Commissioner Income Tax v. Rais Pir Ahmed Khan 1981 SCMR 37; Rehmat D in v.
Mirza Nasir Abbas 2007 SCMR 1560; Collector Land Acquisition Abbotabad v. Fazal -ur-
Rehman 2009 SCMR 767; Food Department Gujranwala through its Deputy Director v. Ghulam Fareed Awan 2010 SCMR 1899 and Federation of Pakistan v. Agritech Limited, PLD 2 016 SC 676 rel.
(b) Limitation Act (IX of 1908)---
----S.5 ---Party seeking condonation of delay was to explain the delay of each day---
Limitation Act, 1908 was required to be construed strictly.
Shahid Baloch, Assistant Advocate -General for Petitioner.
Shahban (Attorney of Respondents Nos.1 and 3) and Abdul Zaheer Lehri for
Respondents Nos.5 to 8.
Date of hearing: 24th October, 2019.
JUDGMENT
ABDUL HAMEED BALOCH, J. ----Through this judgment I intend to dispose of
above revision petition filed by the petitioner against the judgment and decree (impugned
judgment and decree) dated 23rd November, 2011 of Qazi Bhag District Kachhi (trial court), whereby the suit of the respondents/ plaintiffs was decreed and against the judgment and decree (impugned judgme nt and decree) dated 27th March, 2015, of Majlis -e-Shoora, Sibi
Division, Sibi (appellate court), whereby the appeal filed by the petitioners/defendants was dismissed.
2. The facts of the case were that the respondents Nos.1 to 3 / plaintiffs filed a suit for
declaration, permanent injunction, correction of revenue record of Mouza Town Bhag, mutation No. 245, Khasra No. 1964, against the petitioners and respondents Nos. 4 to 8, with the prayer:
3. The petitioners/ defendants Nos. 1 and 2 filed written sta tement and contested the suit
on legal as well as factual grounds and prayed for dismissal of the suit.
4. The respondents Nos.4 to 8/defendants Nos. 3 to 7 filed their joint written statement
and conceded the claim of the respondents Nos.1 to 3/ plaintiff s and prayed for decree of the
suit.
5. On receiving pleadings of the parties the learned trial court framed issues on 4th
April, 2009.
6. The respondents Nos. 1 to 3/plaintiffs in support of their claim produced two
witnesses and got recorded the statemen t of their attorney. Wherein in rebuttal the
petitioners/defendants Nos. 1 and 2 did not produce any witness.
7. The trial court vide impugned judgment and decree dated 29th May, 2009 decreed the
suit, which was assailed by the petitioners/defendants Nos. 1 and 2 in appeal, but the same was also met with the same fate vide impugned order dated 10th September, 2009.
8. The petitioners/defendants Nos. 1 and 2 filed Civil Revision No.(S) 52 of 2009,
before this Court, which was accepted vide order dated 3rd Ju ne, 2011 by setting aside the
judgments of the courts below and remanded the matter to the trial court with direction to
proceed with the matter afresh strictly in accordance with law.
9. The trial court afforded different opportunities to the parties/ def endants Nos. 1 and 2.
The record transpires that on 5th October, 2011 the learned District Attorney appeared before the trial court, but thereafter remained absent on different dates of hearing, as such on 23rd November, 2011 the defendants Nos. 1 and 2 we re proceeded against ex parte under Order
IX, Rule 6 Civil Procedure Code (CPC).
10. Against the impugned order dated 23rd November, 2011, the petitioners/defendants
Nos. 1 and 2 preferred appeal before Majlis -e-Shoora, Sibi on 21st January, 2015 with the
delay of more than three years four months, without any application for condonation of delay. The learned appellate court dismissed the same vide impugned judgment dated 23rd March, 2015 being barred by time, hence this revision petition.
11. Heard learned Assistant Advocate General, respondent No. 2 (attorney of respondents
Nos. 1 and 3) and learned counsel for respondents Nos.5 to 8, perused the record. The petitioners filed appeal before appellate Court on 21st January, 2015, with the delay of three years eleven months (1425 days) without any explanation. The record reveals that the
representative of petitioners/defendants Nos. 1 and 2 appeared before the trial court on 21st June, 2011. Record further reveals that on 8th September, 2011, 15th September, 2011 and 21st September, 2011 the representative of petitioners / defendants Nos. 1 and 2 appeared. Further, on 28th September, 2011 and 5th October, 2011 the District Attorney was in attendance. It means that the petitioners / defendants Nos. 1 and 2 had k nowledge that matter
was subjudice before the court. It would be appropriate to reproduce Section 5 of the Limitation Act, 1908:
"5. Extension of period in certain cases. Any appeal or application for a revision or a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period."
12. The Limitation Act creates a right in favour of the other side if the appeal is time
barred. It became the duty of the party who has sought condonation, m ade application and
justify the reason of the delay. Though this Court has discretionary power to condone the delay under Section 5 of the Limitation Act, 1908. Such discretion has to be exercised judiciously. The Government cannot claim to be treated diff erently from an ordinary litigant.
In this regard reliance is placed on the case of Commissioner Income Tax v. Rais Pir Ahmed Khan, 1981 SCMR 37, wherein it was held:
"The limitation for filing the petition for special leave to appeal is 60 days and even if the time from 14 -3-1975, when the High Court passed the ex parte order against the
petitioner, up to the date on which its copy was received in the Department, namely, 5-5-1975 is excluded the petition is still out of time by nearly 2 months. The time s aid
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, t he Government cannot claim to be treated in any manner differently from
an ordinary litigant. In fact, the Government enjoys unusual facilities for the
preparation and conduct of their cases and its resources a much larger than those
possessed by ordinary litigants, If in spite of these facilities the Government cannot
comply with the requirement of the law of limitation, then it is for it to take steps to have that law. See Province of East Pakistan v. Abdul Hamid Darji (1970 SCMR 558), The Deputy Director , Food, Lahore Region, Lahore and others v. Syed Safdar
Hussain Shah (1979 SCMR 45) and Custodian of Enemy Property v. Hoshang N. Dastur and others (1979 SCMR 191)."
13. The petitioners have not filed any application for condonation of delay under Section
5 of Limitation Act, 1908 before the appellate court. Merely stated that limitation cannot run against the Government. If a party seeks condonation, the same has to explain the delay of each and every day. The petitioners have failed to explain the delay i n filing of the appeal
before the appellate court. Law of limitation is required to be strictly construed, coupled with
the maxim that each day's delay to be explained by the party concerned. Where long period
of delay has not been explained. No ground for condonation of delay of 1425 days was made
out. Reliance is placed on the cases of Rehmat Din v. Mirza Nasir Abbas, 2007 SCMR 1560, Collector Land Acquisition Abbotabad v. Fazal -ur-Rehman 2009 SCMR 767, Food
Department Gujranwala through its Deputy Direct or v. Ghulam Fareed Awan, 2010 SCMR
1899 and Federation of Pakistan v. Agritech Limited, PLD 2016 SC 676.
The petitioners have failed to explain inordinate delay of 1425 days delay in filing the
revision, therefore, without going into merit of the case t he instant revision petition is
dismissed with no orders as to costs.
ZC/171/Bal. Revision dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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