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Civil Petition No. 7‑R of 1978, decided on 23rd December, 1978.

(On appeal from the judgment and order dated 11‑1‑1977/15‑2‑1977 of the then High Court of Sind & Baluchistan in L. P. A. No. 104 of 1968).

‑ O. XIII, r. 1‑Limitation‑Condonation of delay‑Petition for special leave to appeal in civil proceedings‑,To be lodged within sixty days of judgment appealed against‑Court, however, may extend time for sufficient cause‑Petitioner not showing due diligence in filing petition and wasting most of precious time in routine in repeatedly writing to Law Division asking them to reconsider their advice as formerly tendered‑Petitioner failing to explain long and inordinate delay of at least seven months in filing petition‑.No sufficient cause, held, made out for condonation of delay‑Constitution of Pakistan (1973), Art. 185(3).‑[Limitation‑Condonation of delay].

Ch. Manzoor Elahi v. Federation of Pakistan etc. P L D 1975 S C 66 and Syed Ahmad Hussain v. The Chief Justice and Judges of the West Pakistan High Court P L D 1961 S C 162 distinguished.

Superintendent of Central Excise, Lyallpur v. Ch. Faqir Muhammad P L D 1958 S C (Pak.) 167 ; Chief Settlement and Rehabilitation Commissioner and another v. Ghulam Hussain etc. 1974 S C M R 38 and The Province of West Pakistan., Lahore v. Mian Noor Ahmad and others 1975 S C M R 91 ref.

---O. XIII, r. 1 & O. XLIX, r. 6‑Limitation‑Condonation of delay Contention that very valuable property having been disposed of in case in hand by specific performance for inadequate consideration and on onerous terms under impugned decree and as such delay be con doned‑Held, mere fact of valuable rights of petitioner being involved not by itself a proper ground for condonation of delay in civil matters nor could any recourse be had to provisions of O. XLIX, r. 6 for such purpose‑Constitution of Pakistan (1973), Art. 185(3).‑{Limitation‑Condonation of delay].

Mst. Hajran v. Sardar Muhammad P L D 1970 S C 287 ref.

A. R. Sheikh, Senior Advocate Supreme Court instructed by Fazal‑i- Hussain, Advocate‑on‑Record for Petitioner.

Syed Ikhlaq Hussain, Senior Advocate Supreme Court instructed by Yaqub Hussain Zaidi, Advocate‑on‑Record for Respondents.

Date of hearing : 15th November, 1978.

This is a petition under Article 185 of the Constitution of Islamic Republic of Pakistan for leave to appeal from the judgment and decree dated 11th of January 1975/15th of February 1977, passed by a Division Bench of the then High Court of Sind & Baluchistan at Karachi in Letters Patent Appeal No. 104 of 1968.

This dispute relates to a plot bearing Survey No. 29, Sheet S. B. 5, measuring 2724 square yards situated in Saddar Bazar Quarters, Karachi. It belonged to Dr. Eddie P. Bharucha respondent No. 7 and has since vested in the petitioner, the Custodian of Enemy Property. It appears that in the year 1963, the plaintiffs‑respondents 1 to 5 herein, brought a suit against the defendants‑respondents No. 7 and some others on the original civil side of the former High Court of West Pakistan, Karachi Bench, Karachi, for specific performance of an agreement dated 30th of August 1956 for lease of this plot of land with the option to purchase the same and for recovery of a sum of Rs. 6,20,000. In the course of the suit, defendant No. 7, was declared as an enemy national and thereby the property in dispute was vested in the Custodian of Enemy Property who was impleaded as an additional defendant in the suit. Eventually, on the 11th of January 1967. a learned Single Judge of the High Court decreed the suit of the plaintiffs against respondent No. 7 and petitioner No. 1 for specific performance of the contract of lease dated 30th of August, 1956 with option to purchase the said plot and for recover of a sum of Rs, 1,55,000 as damages in addition to future damages at the rate of Rs. 5,000 per month from the date of the suit till the execution of the lease deed.

The petitioner then filed the Letters Patent Appeal No. 104 of l9Eif under clause 10 of the Letters Patent against the respondents from the judgment and decree of the learned Single Judge. During the pendency of that appeal on the 14th of October 1976, the plaintiffs filed an applicatior for amendment of the judgment and decree of the trial Court alleging that the it main prayer in the amended plaint was for a decree for specific perfor mance of the option to purchase the property for Rs. 4,76,000 but that the learned Single Judge had inadvertently granted the alternative pray for specific performance of the contract of lease with option to purchase the property and that this error was due to an accidental slip or omission on the part of the Court to notice their main prayer contained in para. 22‑A of the amended plaint. A notice of this application was also sent to the parties in the appeal. On the 11th of January 1977, a Division Bench of the High Court dismissed with cost the Letters Patent Appeal of the petitioner and subsequently by a separate order passed on the 15th of February 1977, allowed the application for the necessary correction in the judgment and decree passed in terms of the main prayer contained in paragraph 22‑A of the amended plaint in addition to the other reliefs already decreed in favour of the plaintiffs. Accordingly, the amended decree in the appeal prepared by the Court was actually signed only on the 25th of March 1977.

The petitioner, however, filed this petition for special leave from the judgment and decree in this Court only on the 9th of January 1978. The office has raised the objection that it is barred by 272 days. Along with the main petition the petitioner has also filed a separate application under Order XIII, rule 1 read with Order LIX, rule 6 of the Supreme Court Rules, 1956 for condonation of the delay.

We partly heard the learned counsel for the petitioner in the application for condonation of the delay on the 9th of November 1978 and found that the allegations in the application were highly vague. At the request of the learned counsel we, therefore, allowed an adjournment to him to supplement the allegations in his application for condonation of the delay with an affidavit containing additional facts.

The petitioner has accordingly filed a sworn affidavit of Mr. Muhammad Anwar, Assistant Custodian (Law) supplementing the allegations in support of his application for condonation of delay. He has affirmed on solemn affirmation that he received an uncertified copy of the judgment dated 11th of January 1977 passed by the Division Bench from the office of his learned counsel Mr. Ali Ahmad Fazeel, Advocate, Karachi and had put up a note on the 17th of February 1977, seeking the advice of the Law Division as to whether the Custodian should go up in appeal to the Supreme Court or not. The case was marked to the Law Division on the 19th of February 1977 and was then examined by the Solicitor on the 28th of February, 1977 who opined that it was not a fit case for appeal to the Supreme Court. This opinion was also endorsed by the Secretary Law on the 2nd of March 1977. On receipt of this reference from the Law Division, the case remained under action in the office of the Custodian of Enemy Property. It is further averred that during this period, the learned counsel for the plaintiffs respondents also held discussions with the various authorities for the settlement of the dispute out of Court. In the meanwhile the Custodian was of the opinion that considering the value of the property the Law Division may be approached once again to reconsider their opinion. Accordingly, the case was sent back to the Law Division on the 14th of June, 1977 but again on the 20th of June, 1977 the Secretary Law upheld his previous view in the matter. On receipt of the file from the Law Division the matter was again considered by the authorities of the Custodian of the Enemy Property. On the 13th of July 1977 for the third time the case was again referred to the Law Division for a reconsideration of their opinion. A desire was also expressed for permission to consult the Attorney‑General for Pakistan in the matter. This time the Law Division observed that the Custodian may be asked to prepare a self‑contained summary for submission to the Attorney‑General. Accordingly, a summary of the case was put up to him and the learned Solicitor opined that the Supreme Court was not; likely to condone the delay in the petition. On the 28th of August 1977, the Additional Secretary Law (in the office of the Attorney General) wrote a note with the approval of the Attorney‑General to the effect that the petition, if made, would not be entertained by the Supreme Court on account of delay. In spite of this advice, the case was again referred to the learned Attorney‑General for a discussion in the matter. On this for the first time on the 14th of September 1977, it was stated that the Attorney‑General bad already appeared in the case for one of the parties and therefore, he would not be in a position to take up this case for the Custodian. He at the same time observed that there was no objection if the administrative Ministry was prepared to take a chance in the Supreme Court by engaging a private counsel.

Thereafter, according to the said affidavit, Mr. Fazal‑i‑Hussain, Advocate- on‑Record was contacted for the purpose. He was of the view that the case was of such a nature that the services of a senior counsel like Mr. A. K. Brohi should be obtained. Accordingly, Mr. A. K. Brohi was contacted in the last week of September 1977, but at the relevant time he was busy in defending the Federation of Pakistan in the case of Begum Nusrat Bhutto v. Chief of the Army Staff, etc. pending in the Supreme Court and he could not find adequate time to attend to this matter. Afterwards, in the month of November 1977, Mr. Brohi left for New York to attend the session of the United Nations General Assembly and the matter could not be settled with him to file the petition in the Supreme Court. As a last resort therefore, Mr. Fazal‑i‑Hussain, Advocate‑on‑Record was asked to file the petition himself. In these circumstances this petition was ultimately filed through him on the 9th of January 1978. It is further averred in the application that in the circumstances of the case and keeping in view the value of the property which was in the neighbourbood of rupees two crores, the delay in filing this petition was liable to be condoned.

We have heard the learned counsel for the petitioner and the contesting respondents. The learned counsel for the respondents has vehemently opposed. the application for condonation of the delay. As already stated above, according to the office the main petition for special leave is barred by 272 days. But according to the learned counsel for the petitioner, the judgment in the Letters Patent Appeal was announced on the 11th of January 1977, when the necessary application for a certified copy of the judgment was made on the same day. Afterwards, on the application of the plaintiff's respondents the Division Bench of the High Court allowed the amendment in: the judgment and decree on 15‑2‑1977. But the decree in appeal was not signed until the 25th of March, 1977. The petitioner then filed a second application for certified copies of the amended judgment and decree which were delivered to the petitioner on the 13th of April 1977. Even after allowing full allowance to the petitioner for the time spent in obtaining the certified copies, etc. according to the computation made by the petitioner, the period of limitation for filing the petition for special leave had expired on the 8th of June, 1977. But the petitioner took another seven months to file the petition for special leave to appeal in this Court only on the 9th of January, 1978.

Rule 1 of Order XIII of the Supreme Court Rules, 1956 lays down that a petition for special leave to appeal in civil proceedings shall be lodged within sixty days of the judgment appealed against. Provided that the Court may for "sufficient cause" extend the time.

Even according to the sworn affidavit filed before us this case was at first sent to the Law Division on 19‑2‑1977 for its opinion whether to go up in appeal against the impugned judgment. On this on 2‑3‑1977 the Secretary .Law advised that this was not a fit case for appeal. Evidently the Custodian was satisfied with the advice and apparently took no further action for over three months. It was only on 14‑6‑1977, for reasons best known to him, that he referred the case to the Law Division unsuccessfully for the second time and again for the third time on 13‑7‑1977 for recon sideration of their previous opinion. Eventually on 14‑9‑1977 the learned Attorney‑General observed that there was no objection if the administrative Ministry was prepared to take a chance in the Supreme Court.

In spite of this the petitioner did not show due diligence in filing the petition for leave to appeal. According to the petitioner he at first contacted Mr. Fazal‑i‑Hussain, Advocate‑on‑Record and wanted to engage senior counsel Mr. A. K. Brohi in this case, who was contacted in the last week of September 1977 but he was too busy with another professional engagement and afterwards in November 1977 he left for New York to attend the session of the United Nations General Assembly and the matter could not be settled with him to file the petition in the Supreme Court. At long last the petition in the Supreme Court was filed through Mr. Fazal‑e‑Hussain, Advocate‑on‑Record on 9‑1‑1978.

All this presents a dismal picture and I find it difficult to shed the, unfortunate impression that all along the petitioner did not act with due diligence in filing this petition. Most of the precious time was wasted in routine in repeatedly writing to the Law Division asking them to reconsider their advice. Mr. A. K. Brohi, Senior Advocate Supreme Court was not in fact engaged by the petitioner in this case and admittedly the matter could not be settled with him. There was therefore, no point in waiting for him to take up this case. I am not fully satisfied with this explanation and the petitioner has failed to explain this long and inordinate delay of at least seven months in filing this petition. There is no sufficient cause made out for condonation of this delay.

Before us the learned counsel for the petitioner has relied on Ch. Manzoor Elahi v. Federation of Pakistan etc. (PLD1975SC66). In that case a civil review petition was filed after a delay of 208 days which was condoned by this Court. In that case Muhammad Yaqub Ali, J. (as he then was) condoned the delay as public interest was involved. Salahuddin, J., observed that there was a plausible explanation forthcoming for the condonation of the delay. Similarly Anwarul Haq, J. (as he then was) condoned the delay in view of the public importance of the Constitutional question of jurisdiction of Supreme Court and High Courts involved in the case. But no such compelling considerations arise in the instant case before us. In Syed Ahmad Hussain v. The Chief Justice and Judges of the West Pakistan High Court (PLD1961SC162) the delay of several months had already been condoned at the time of the granting of the special leave upon sufficient reasons, and in the course of the hearing of the appeal, this Court declined to interfere with the order of condonation. Both these cases cited before us were decided on their own facts and have no relevancy to the facts of this case before us.

In Superintendent of Central Excise, Lyallpur v. Ch. Faqir Muhammad (P L D 1958 S C (Pak.) 167) the application for special leave made by the petitioner was time barred by 57 days. In the petition for condonation of the delay it was explained that the extra time was needed for consultation in a number of offices including the Ministry of Law of the Pakistan Government and for the engagement of special counsel. But repelling this contention this Court observed that:‑

"No extended period of limitation is provided for Government, as litigants before this Court. This is because it is felt that enjoying unusual facilities for preparation arid conduct of their cases, as against those available to private litigants, Governments do not need any greater latitude in respect of limitation than the ordinary litigant. The reasons advanced for the delay are not, in our opinion, convincing, and we wish to emphasize the necessity for as great vigilance on the part of Governments in these matters as the Court is entitled to expect from, and enforces against, private litigants."

In Chief Settlement and Rehabilitation Commissioner and another v. Ghulam Hussain etc. (1975 S C M R 38) the civil petitions for special leave to appeal were beyond time by 67 days. It was pleaded that after obtaining the copies of the impugned judgment, the departmental file was submitted to the Chief Settlement Commissioner for sanction for filing the special leave petitions and for sanctioning funds. The file was however, mislaid in the office and was not traceable until after the expiry of period of limitation. It took another ten days to discuss the matter with law advisors and to draft the two petitions. In these circumstances the learned counsel for the petitioners submitted that such delays were common in Governmental Offices and the Courts do generally take a lenient view in such cases. But this Court repelled the contention and observed :‑

"It is firmly established principle that when a litigant has allowed the normal period of limitation for a legal proceeding to expire, he has to explain each day's delay beyond a period of limitation. This Court has always adhered to the view that in civil matters, delay in filing appeals or petitions, save in exceptional cases should not be lightly condoned, for a valuable right has accrued to the other party of which it cannot be deprived except for very substantial reasons. To make departments of Government exception to this rule would be placing a premium on the negligence and want of proper diligence in public offices, It is pertinent to observe that where Legislature considers it necessary to make the Government an exception to the ordinary rule of limitation, it always makes express provisions in that behalf."

Also in The Province of West Pakistan, Lahore v. Mian Noor Ahmad and others (1975 S C M R 91) it was remarked that as observed by this Court in more than one judgment, Government is not entitled to any preferential treatment as compared to ordinary citizens in adjudication of civil matters.

It was also argued before us on behalf of the petitioner that this is a hard case in which very valuable property has been disposed of by specific performance for inadequate consideration and on onerous terms under the impugned decree But it was held in Mst. Hajran v. Sardar Muhammad (P L D 1970 S C 287) that the mere fact that the valuable rights of the petitioner are involved, is by itself no proper ground for condonation of the delay in civil matters. Nor any recourse can be had to the provisions in rule 6 of Order XLIX of the Pakistan Supreme Court Rules, 1956 for this purpose.

For the foregoing reasons, no case has been made out before, us for condonation of the inordinate delay in the petition for special leave to appeal and we are constrained to dismiss the same as barred by time.

Petition dismissed.

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