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Appeal No. 31 of 1980.

‑‑ S. 4‑Limitation‑Condonation of delay‑Justification‑Exposition of law favourable to appellant in other cases by superior Court-- Not a sufficient ground for condonation of delay‑[P L D 1973 Quetta 1 and P L D 1969 Lah. 1039 held not applicable].

Dismissal order passed on 10‑3‑1970 under Removal from Service (Special Provisions) Regulation [C. M. L. A. 's. 58 of 1970] was challenged in appeal filed in May, 1958 on grounds that impugned order was without jurisdiction and nullity in law. It was pleaded that jurisdiction of Service Tribunal to entertain and deal with appeals against orders passed under M. L. R. 58 remained in controversy until decision of Supreme Court in M. Yamin Qureshi v. Islamic Republic of Pakistan P L D 1980 S C 22. Question before Service Tribunal was precisely whether appeal filed for the first time after 10 years of the impugned order can be admitted by condoning delay because of new exposition of Law by the Supreme Court that an order passed under M. L. R. 58 can be challenged before Service Tribunal on grounds of want of jurisdiction and mala fide.

The trend of decisions of the Courts on this question has been that, a new statement or exposition of the law by the superior Courts is not sufficient cause for excusing such delay. And so, where a party against whom a decision is given is apparently satisfied for the time being, but subsequently a new statement or exposition of law favourable to his case having been given in a judgment in another case, he comes to prefer an appeal or an application for ,review, his delay will not be excused on that ground.

M. Yamin Qureshi v. Islamic Republic of Pakistan P L D 1980 S C 22 ref.

Asma Jilani's case P L D 1972 S C 139; Zia‑ur‑Rehman's case P L D 1973 S C 49 and Saeed Ahmed Khan's case P L D 1974 S C 151 ref.

P L D 1973 Quetta 1 and P L D 1969 Lah. 1039 held not applicable.

H. G. Mitra on Limitation Act, 15th Edn. p. 71 ; Mowri Bews v. Soorendra Nath 10 W R 178, 2 Beng. L R A O 184 ; Basdeo v. Murlidhar Sing A I R 1942 Oudh 447 ; A I R 1957 Raj. 165 and I L R 1956 Raj. 6 ref.

.‑This is an appeal under section 4 of the Sind Service Tribunals Act, 1973, against the order of dismissal from service of the appellant.

The appellant retired as Captain from the Army in 1957. He was then appointed as Claim Officer and thereafter as Superintendent of Taxes in 1957.

In the year 1967 he was posted as Additional Director, Excise and Taxation, Karachi in the Government of West Pakistan. During Martial Law Regime of General Agha Muhammad Yahya Khan the appellant was served with a charge‑sheet and show‑cause notice under Martial Law Regulation 58 by the Chief Secretary, Government of West Pakistan. The charges against him were regarding corruption. The appellant‑ filed the written defence before the Chairman of the Tribunal under Martial Law Authority, Zone 'A' but by Notification dated 10th March, 1970 the appellant was ordered to be dismissed from service w.e.f. 4‑3‑1970.

Since there was no provision for appeal or review under Martial Law Regulation 58 and jurisdiction of Courts was ousted, the appellant filed merely petition before the Chief Martial Law Administrator and President of Pakistan ; but there was no response.

It is that case of the appellant that since jurisdiction of the Services Tribunal to deal with cases under Martial Law Regulation 58 of 1969 remained in controversy, no further action was taken, until .the decision of the Supreme Court in M. Yamin Qureshi v. Islamic Republic of Pakistan (P L D 1980 S C 22), decided on 22‑1‑1980.

The appellant alongwith this appeal have moved an application under section 5 of the Limitation Act that the delay of 10 years in filing the appeal against the order of dismissal passed in March 1970, may be condoned, this appeal having been filed on 14‑5‑1980.

The grounds that have been urged for condoning this enormous delay are two‑fold. Firstly that the jurisdiction of the Tribunal in such matters remained in controversy until the above decision of the Supreme Court and secondly that the dismissal order was an action taken under Martial Law Regulation 58 of 1969 which regulation was illegal and the action taken was a nullity in law. That the provisions of section 5 need not be examined at all, if the impugned order is without jurisdiction and void. Reliance has been placed on the decisions reported in P L D 1973 Quetta 1 and P L D 1969 Lah. 1039.

The entire question which is being agitated has been thoroughly dealt with in the decision of Supreme Court in M. Yamin Qureshi v. Pakistan. In that case the appellant had come in appeal against the order of the Central Service Tribunal dismissing the petition of the appellant on the ground of ouster of jurisdiction. It has been shown in this decision by reference to the earlier authorities namely Asma Jilani's case (P L D 1972 S C 139), Zia‑ur‑Rehman's case (P L D 1973 S C 49), Saeed Ahmed Khan's case (P L D 1974 S C 151) and the relevant articles in the Constitution, that in respect of action taken under Martial Law Regulation 58 of 1969 the following position emerges: ‑‑

(i) Under Article 270(3) of the Constitution of 1973, validity of such instruments could not be called in question in any Court on any ground whatsoever for a period of 2 years from the commencing day of the Constitution of 1973.

(ii) Martial Law Regulation 58 of 1969 was not validated during this limited period of 2 years and the same instrument had lapsed.

(iii) The position with regards to the orders made proceedings taken and acts done under regulation 58, however had been saved under clause (4) of Article 270 under the doctrine of necessity. All transactions past and closed bad been condoned.

(iv) Such immunity however did not extend to act and actions, which were, without jurisdiction, coram non judice or mala fide.

(v) That the orders made incompetently without jurisdiction would not be covered by the ouster clause and the Service Tribunal therefore had jurisdiction to decide all questions of law and facts as mala fide orders were not immune from being challenged.

In the above case under decision no question regarding limitation was involved. The appeal was filed before the Service Tribunal in time, and from the decision of the Tribunal, the appeal was preferred to the Supreme Court under Article 212 of the Constitution. The question therefore arises whether the present appeal to the Tribunal filed for the first time after more than 10 years of the order of dismissal can be admitted by condoning the delay, because of the new exposition of law by the Supreme Court, that the orders passed under M. L. R. 58, can be challenged before Service Tribunal on the ground of want of jurisdiction and mala fides. The trend of decisions of the Courts on this question has been that, a new statement or exposition of the law by the superior Courts is not sufficient cause for excusing such delay. And so, where a party against whom a decision is A given is apparently satisfied for the time being, but subsequently a new statement or exposition of law favourable to his case having been given in a judgment in another case, he comes to prefer an appeal or an application for review, his delay will not be excused on ‑that ground. H. G. Mitra's commentary on Limitation Act 15th Edn., p. 71. Mowri Bews v. Soorendra Nath (10 W R 178.2 Beng L R A O 184n). In Basdeo v. Murlidhar Singh (A I R 1942 Oudh 447) Agarwal, J. observed:

"It was held in 10 W. R. 178 that a new statement of the law by the High Court was not sufficient excuse for delay in applying for a review of judgment, that is still less an excuse for delay in appealing against a judgment. I am therefore of opinion that the fact that this Court in March 1942, was of opinion that a second appeal lay is no ground for excusing the delay in filing the appeal. Had the present petitioners appealed, their appeal would have been dismissed on the ground that no appeal lay and they could not apply for review of the judgment dismissing their appeal. A new ruling is no ground for reviewing a previous judgment. If it were, much inconvenience and confusion would be the result. If a judgment be liable to be reviewed on the ground of a new ruling, it can be reviewed even if the new ruling, is made a long time after the decision of the case and there should be no difference in principle in reviewing a judgment after a month or two or after forty or fifty years. If a judgment can be reviewed after such a long time, the title of many persons would be insecure."

The fact that a Court takes a different view of law in a subsequent case is no ground for reviewing the judgment in a prior case. (A I R 1957 Raj. 165=1 L R 1956 Raj. 6).

In the present case the judgment of Supreme Court was announced on 22nd January 1980, and even thereafter the service appeal has been filed after a delay of 4 months. There can be no explanation at least for this period, even presuming that the new exposition of law may be considered, as sufficient cause.

The other ground, of the order being a nullity and a void order, has also no application to the present case. Under Article 270(4) of the Consti tution 1973, such transactions past and ‑closed cannot be re‑opened and have been saved. The Quetta and Lahore decisions have therefore no application to the facts of this case. The Quetta's decision was in a case under the Rent Restriction Ordinance, where the Rent Controller passed an order when there was no relationship of landlord and tenant between the parties and the order was without jurisdiction. The Lahore decision was given in a case under settlement Act in which too, the order was without jurisdiction.

Thus the present appeal having been filed for the first time against the order of dismissal passed more than 10 years ago is clearly barred by limitation and this delay cannot be condoned on the grounds urged by the appellant. The appeal is therefore dismissed in limine being time‑barred.

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