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High Court Appeal No. 37 of 1985, heard on 8th May, 1985.

---S. 3--Limitation Act (IX of 1908), Ss. 1(7) & 14--Appeal against order passed by Single Judge of High Court--Delay in filing appeal--Exclusion of period spent in prosecuting proceeding in Court having no jurisdiction sought--Choosing wrong forum for filing of appeal--Such act of choosing wrong forum lacking due care and attention, held, would not be regarded as having been done in good faith.

---S. 3(2) [as amended by Law Reforms Ordinance (XXXIV of 1972)]--Limitation Act (IX of 1908), S. 5--Forum of appeal from decree or final order of Single Judge of High Court--Such appeal would be to Bench of two or more Judges of High Court in exercise of civil jurisdiction--Provision for forum of appeal came into force on 14-4-1972--Instead of complying with provisions of law as regards forum of appeal, petitioner (Government) filing petition for special leave to appeal in Supreme Court in 1981--No Advocate, held, could bona fide claim that he remained ignorant of changes in law or more than 9 years--Failure to acquaint with relvant provisions of law relating to jurisdiction of Courts, held, was clearly act of negligence and delay was not condoned in circumstances. Imtiaz Ali Malik v . Mst. Surrya begum etc. 1979 S C M R 22 and Ch. Muhammad Sharif v. Muhammad All Khan and others 1975 SCMR 259 ref.

---S. 3(2) [as amended by Law Reform Ordinance (XXXIV of 1972)]--Limitation Act (IX of 1908), S. 5--Filing of appeal--Condonation of delay in filing appeal in ignorance of law--Such delay, held, could be condoned under S. 5 of Limitation Act, 1908, if there was no negligence, no inaction and no want of good faith--Delay not condoned in circumstances. Mst. Hajran v . Sardar Muhammad 1970 S C M R 656 ref.

---S. 3(2) [as amended by Law Reforms Ordinance (XXXIV of 1972)]--Limitation Act (IX of 1908), S. 12(1)--Filing of appeal--Exclusion of period for obtaining copy of judgment--Appellant already having had erroneously resort to appeal before Supreme Court--Copy of judgment of Supreme Court was not necessary for filing appeal to High Court--period for obtaining such copy, held, could not be excluded--Condonation of delay not granted in circumstances.

---S. 3(2) [as amended by Law Reforms Ordinance (XXXIV of 1972)]--Limitation Act (IX of 1908), S. 14--Filing of appeal--Exclusion of period--Appellant already having had erroneously resort to the appeal before Supreme Court--Copy of Supreme Court judgment having been obtained on 3rd March, 1985--Appeal filed on 25th April, 1985--Delay of 53 days sought to be explained by stating that Advocate of appellant after receipt of papers refused to file appeal and sent back papers--Circumstances stated by appellant disclosed case of inaction or want of due diligence or negligence on part of such appellant--Condonation of delay refused in circumstances.

---S. 3(2)--Limitation Act (IX of 1908), Ss. 5, 12 & 14--Condonation of delay--Government Departments, held, would not be entitled to special indulgence as compared with ordinary litigants. Commissioner of Income-tax v. Ravi Textile and Carpet Company 1968 S C M R 115; The Province of West Pakistan v. Mian Muhammad Aslam and others 1975 S C M R 92 and Chief Settlement and Rehabilitation Commissioner and another v . Ghulam Ghaus etc. 1974 S C M R 38 rel.

---Ss. 5, 12 & 14--Appeal--Condonation of delay--Exclusion of period for filing appeal--Delay of each day, held, must be explained Sufficient ground having not been furnished, condonation of delay not granted in circumstances. Ata Ullah Malik v. The Custodian, Evacuee Property, West Pakistan and Karachi and others P L D 1964 S C 236 and Province of East Pakistan v . Abdul Hamid Darji and others 1970 S C M R 558 ref. A.R. Akhtar for Appellant.

Alongwith this appeal under section 3 of the Law Reforms Ordinance, 1972, filed on 25-4-1985, from a judgment dated 31-12-1980, passed by a learned Single 'Judge-of this Court, an aPplication under sections 5 and 14(2) of the Limitation Act, 1908, has been filed for condonation of delay in filing the appeal and for excluding the time spent in prosecuting the petition for special Leave to Appeal in the Supreme Court. 2. The relevant facts are that an award given in favour of respondent 1 was made rule of the Court by a learned Single Judge of this Court by the judgment dated 31-12-1980. Aggrieved by the judgment and decree the appellant filed on 24-3-1981, a petition for Special Leave to Appeal, being Petition No. K-226 of 1981, in the Supreme Court. The petition was heard on 12-12-1984, and dismissed by the order of the same date, as would appear from a photostat copy of the judgment of the Supreme Court (Annexure "G") at page 85 of this record. However, Mr. A.R. Akhtar states that the petition was heard on 27-2-1981, and the judgment was announced on 12-12-1984. The appellant, therefore, seeks exclusion of the period from 24-3-1981 to 12-12-1984, as according to the affidavit of Zaman-ur-Rahman, Superintendent of the Office of the Director-General Food at Karachi filed in support of the application the proceedings in the Supreme Court were commenced on the advice of the counsel for the appellant and' the appellant had no reason to doubt that the proceedings by way of civil petition for Special Leave commenced were not valid and in normal course and that the appellant had awaited the decision of the Supreme Court in the said petition. However, the deponent has neither given the name of the counsel by whom and the name of the officer to whom the advice was tendered nor have the appellant produced any written opinion or letter of the counsel or the affidavit of the counsel in support thereof. Under section 14 of the Limitation Act, 1908, the period spent in prosecuting a proceeding could be excluded only if the petitioner had prosecuted the proceedings in good faith in Court which, from defect of jurisdiction, or other cause of a like nature, was unable to entertain it. According to section 1, subsection (7) of the Limitation Act, 1908, nothing is deemed to be done in good faith which is not done with due care and attention. In this case nothing has been shown what care was taken or attention was paid to find out as to which Court the appeal from the judgment given by a learned Single Judge of this Court would lie. 3. This appears to be a case of gross lack of care for the Law Reforms Ordinance (XXXIV of 1972), which provides that an appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that High Court in the exercise of Civil Jurisdiction came into force with effect from 14-4-1972, and yet the petition for Special Leave to Appeal was filed in 1981. No Advocate could bona fide claim that he remained ignorant of the changes in law for more than 9 years. It may be stated that the Supreme Court in the case of Imtiaz Ali Malik v. Mst. Surrya Begum etc., 1979 S C M R 22 had refused to entertain Petition for Special Leave to Appeal in view of section 3 of the Law Reforms Ordinance, 1972, as amended by the Law Reforms (Amendment) Act, 1972 because the appeal was competent before a Division Bench of the High Court. An Advocate of the Supreme Court could not have filed a Petition for Special Leave to Appeal, if he was vigilant and careful at least in view of the pronouncement of the Supreme Court in the aforesaid case. Further, it was held by the Supreme Court in the case of ch. Muhammad Sharif v. Muhammad All Khan and others 1975 SCMR 259 that failure to acquaint with the relevant provisions of the law relating to the jurisdiction of the Courts was clearly act of negligence and, therefore, delay in that case was not condoned. 4. It may however, be stated that delay in filing an appeal in ignorance of law in circumstances of particular case, may furnish sufficient ground for condonation of delay under section 5 of the Limitation Act but the rule would apply only when there is no negligence, no inaction and no want of good faith as laid down by the Supreme Court in the case of Mst. Hajran v . Sardar Muhammad 1970 S C M R 656. We are, therefore, of the view that period from 24-3-1981 to 12-12-1984, could not be excluded. 5. Then there is a further delay from 12-12-1984 to 25-4-1985, and condonation of delay of this period is sought under section 5 of the Limitation Act, 1908. According to the appellant the certified copy of the judgment was applied for on 16-12-1984, and was delivered on 3-3-1985, and was received in the office of the appellant on 5-3-1985. So far as the period from 12-12-1984 to 3-3-1985, is concerned the submission of Mr. Akhtar is that this period is to be excluded under section 12, subsection (1) of the Limitation Act, 1908, but the submission to say the least is not well-founded for, copy of the judgment of the Supreme Court was not required for filing the appeal. What was required was a copy of the judgment of the learned Single Judge which was received by the appellant as early as 24-1-1981, and has been annexed to this appeal. Therefore, this period could not be excluded under the D provisions of section 12, subsection (1) of the Limitation Act, 1908. Since obtaining copy of the judgment of the Supreme Court was not necessary for filing this appeal, the time spent in obtaining it could also not be considered as sufficient ground for condonation of the delay. 6. Even, if for the sake of argument, it is assumed that the period from 31-12-1980 to 12-12-1984, during which the Petition for Special Leave to Appeal was filed and dismissed by the Supreme Court could be excluded under section 14 of the Limitation Act, 1908, still the period from 13-12-1984 to 25-4-1985, could not be excluded as the appeal was not filed even on 3rd March, 1985, when the certified copy of the judgment of the Supreme Court was delivered but it was filed on 25-4-1985, and the explanation for delay of 53 days, as stated in the affidavit of Zaman-ur-Rahman, is that the appeal was sent to an Advocate who after receipt of the relevant papers expressed his inability to act on behalf of the appellant. The case papers were received back which were again sent to Government Advocate on 11-4-1985, who could not pursue the matter for appeal. Thus, it is claimed that the case papers between 5-3-1985 and 11-4-1985, remained with the Advocates who could not file the appeal. It is further stated that the appellant depended upon the advice of its lawyers and/or the Justice Division and could not on its own engage any counsel or file the necessary Proceedings on its own. 7. In our view these are not sufficient grounds and if any Advocate for the appellant was not prepared to file the appeal, he should not have been entrusted with the same. The circumstances stated only disclose a case of inaction or want of due diligence or negligence on the part of the appellant and we should be putting a premium on the negligence or inaction or want of proper diligence of the appellant or its counsel, if we condone the delay even for this period. 8. It was then submitted by Mr. Akhtar that in the Government departments time is taken in obtaining instructions and preparation of the case. 9. The mere fact that the appellant is Government department does not entitle it to special indulgence in this respect as compared with ordinary litigants. If any authority is needed reference may be had to the Supreme Court judgment in Commissioner of Income-tax v. Ravi Textile and Carpet Company 1968 S C M R 115. Again in The Province of West Pakistan v. Mian Muhammad Aslam and others 1975 S C M R 92 the Supreme Court reiterated that Government is not entitled to any preferential treatment as compared to ordinary citizens in adjudication of civil matter. 10. It may also be pertinent to point out the following observation of the Supreme Court in Chief Settlement and Rehabilitation Commissioner and another v . Ghulam Ghaus etc. 1974 S C M R 38.

"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." 11. Last but not the least there is no explanation whatever for not filing the appeal from 12-4-1985 to 24-4-1985. It is well-settled that delay of each day must be explained. See Ata Ullah Malik v. The Custodian Evacuee Property, West Pakistan and Karachi and others PLD 1964 S C 236 and Province of East Pakistan v. Abdul Hamid Darji and others 1970 S C M R 558. 12. We, therefore, cannot exclude the time either under section 14 or under section 12 of the Limitation Act, 1908, and we also do not find sufficient ground under section 5 of the Limitation Act, 1908, to condone the delay and accordingly dismiss the application and consequently dismiss the appeal as being hopelessly barred by time. A.A. Appeal dismissed.