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Writ Petition No. 415 of 1960, decided on 26th November 1962,

‑Petition of private person stands on different footing from that of Government servant‑Longer period than period allowed for appeal to High Court should not be condoned in absence of special circumstances‑Unexplained delay of 11 months, after accrual of cause of action to private person already embarked on litigation‑Delay inordinate‑Constitution of Pakistan (1962), Art. 98.

The Chandpur Mills Ltd. v. The District Magistrate, Tippera, and another P L D 1958 S C (Pak.) 267 distinguished.

Pakistan v. Sheikh Abdul Hamid P L D 1961 S C 1 05 ; Manzur Ahmad P. F. S. (1) v. The Province of West Pakistan and others P L D 1961 S C 166 ; Burmah Oil Company (Pakistan Trading) Ltd., Chittagong v. The Trustees of the Port of Chittagong P L D 1962 S C 113 and Sind Industrial Trading Estates Ltd. v. First Assistant Judge, Hyderabad, West Pakistan and four others P L D 1960 Kar. 826 ref:

Fazlur Rehman for Petitioner.

Iqbal Rahim for Respondent No. 1..

Saeed A. Shaikh for Respondent No. 2.

Date of hearing : 14th November, 1962.

This is a writ petition by Mr. Khalil‑ur‑Rahman, challenging the validity of the orders dated the 25th of September 1959 and the 21st of November 1959 of Mr. Justice Masud Ahmad, Custodian of Evacuee Property, West Pakistan. The facts giving rise to this writ petition, as set forth by the petitioner, are as follows :‑

2. The petitioner, who is a Pakistani Muslim, entered into an agreement with one Lala Bishamber Dass, respondent No. 1, at Karachi to purchase a 1929‑Model Alfa Romeo car for Rs. 10,000 on the condition that if, after the car had been exported to India and repaired, the car did not give satisfactory service, the petitioner would be entitled to return the car to respondent No. 1 and the latter would not insist on the completion of the sale. The petitioner executed a pronote for Rs. 10,000 in favour of respondent No. 1 as the consideration for the sale of the car in case the car was eventually purchased by the petitioner. The pronote was payable at Delhi. When the car was imported by the petitioner into Calcutta from Karachi, it was discovered that it was in a bad state of repairs and could not give efficient service. He, therefore, asked respondent No. 1 to take back the car or permit the petitioner to sell it and return the balance after deducting the amount spent by him on the repairs. It is alleged that respondent No. 1 agreed to this proposal The petitioner accordingly got the car repaired and sold, and when respondent No. 1 met him at Calcutta, he paid to him the sale price of the car after deducting the expenditure incurred on the repairs of the car. When the petitioner asked respondent No. 1 to return the pronote to him, the respondent told him that he had left it behind at Delhi. The petitioner did not insist upon the return of the pronote as he had full trust in respondent No. 1. It has further been alleged that after the petitioner had shifted from Calcutta to Chittagong, "the records were destroyed after the period of seven years."

3. The petition has been contested by the respondents. Respondent No. 1 has countered the allegations of the petitioner by an affidavit to the effect that the car in question had been purchased by the petitioner unconditionally after thoroughly satisfying himself as to the good condition thereof and that the petitioner had purchased it for the sum of Rs. 10,000 and executed a pronote for payment of Rs. 10,000 by way of security therefor. ‑"It was also contended that the petition was a belated one.

4. The impugned orders dated the 25th of September 1959 and the 21st of November 1959 arise out of an application under section 12 and 34 of the Pakistan (Administration of Evacuee Property) Act (XII of 1957) made by respondent No. I to the Custodian of Evacuee Property, South Zone, Karachi. The later directed the petitioner to deposit a sum of Rs. 10,000 by the 15th of October 1959. This order was passed by the learned Custodian on the 25th of September 1959. It was specified in this order that if Mr. Khalil‑ur‑Rahman deposited the value of the car fixed by him (the Custodian), "he would be at liberty to prove this fact and until the decision of that matter the money deposited by him will be kept in Suspense Account'. If he is unable to produce the car and is able to show that it was worth less than Rs. 10,000, the extra money deposited by brim shall be returned to him." The petitioner deposited, Rs. 10,000 on the 15th of October 1959. The case was again taken up by the learned Custodian on the 21st of November 1959, on which date the petitioner as also his counsel was absent. On this date, the learned Custodian directed that the sum of Rs. 10,000 deposited by Mr. Khalil‑ur‑Rahman on the 15th of October 1959 should be credited to the account of Mr. Bishambar Dass evacuee. In the course of this order, the learned Custodian observed :

"It appears that Mr. Khalil‑ur‑Rahman does not wish to proceed on with the case and is not desirous of establishing that the car was not worth Rs. 10,000 for which it was said to have been purchased. If it had not been so, he would have appeared in the Court today to take part in the proceedings."

5. The main contention of the learned counsel for the petitioner raised before us was that the orders dated the 25th of September 1959 and the 21st of November 1959 of the learned Custodian were without jurisdiction as they were passed after the 1st of January 1957 and, as such, were of no effect, having regard to section 3, read with section 2 (3) (b) of the Pakistan (Administra tion of Evacuee Property) Act, 1957. He further contended that as the car in question was exported from Karachi to Calcutta in January or February 1948 and was not in Pakistan when the evacuee laws came into force, neither the car was evacuee property nor the debt recoverable on its account could be described as property due in Pakistan and, therefore, was outside the ambit of evacuee property laws.

6. We do not propose to examine the arguments of the learned counsel for the petitioner on merits as the objection raised by the learned counsel for the respondents to the petition on the ground of laches and delay appears to us to be well founded. As already mentioned, the original order made by the learned Custodian on the application of respondent No. 1 was passed on the 25th of September 1959. Under this order, the petitioner had been directed to deposit a sum of Rs. 10,000 .by the 15th of October 1959. The petitioner complied with this order by depositing Rs. 10,000. The writ petition filed by the petitioner shows that he felt aggrieved by this order also. The final order of the learned Custodian was passed on the 21st of November 1959. Even if it be considered that the final grievance to the petitioner had accrued from this latter order, the petitioner's writ petition having been filed on the 26th of October 1960, a delay of eleven months has intervened between the final order and the petition. This is no inconsiderable delay and it remains wholly unexplained despite the circumstance that the objection to the writ petition on the score of delay was specifically taken in para 16 of the counter‑affidavit filed by respondent No. 1. It is further significant that after the deposit of Rs. 10,000 under the order dated the 25th of September 1959 of the learned Custodian the petitioner chose not to put in appearance before the learned Custodian on the date of the final order and suffered the proceed ings to take place ex parte against him.

7. The learned counsel for the petitioner has produced before us a copy of the judgment of the Supreme Court in Lady Jamil‑un-Nisa Abdur Rahman v. Bishambar Dass arising out of an order of the learned Custodian in some other case to which Bishambar Dass, respondent No. 1, was a party and in which the order of the learned Custodian was set aside after some criticism of his judgment. We consider this judgment wholly irrelevant for the determination of the matter before us. The learned counsel for the petitioner has sought to utilise the adverse criticism of the judgment of the learned Custodian in that case for the purpose of his contention that the attitude of the Custodian towards Mr. Khalil‑ur‑Rahman was so palpably adverse in the proceedings that hg did pot hove the heart to appear before him after he has made the deposit of Rs. 10,000 as directed by him under his order dated the 25th of September 1959. We are not quite sure that this really explains Mr. Khalil‑ur‑Rahman's non‑appearance in the Court of the learned Custodian when he passed the final order dated the 21st of November 1959. But we are at a loss to under stand how what he says can acc aunt for his delay in invoking the writ jurisdiction of this Court.

8. The learned counsel for the petitioner has cited The Chandpur Mills Ltd. v. The District Magistrate, Tippera and m another (P L D 1958 S C (Pak.) 267) in support of his contention that in this case the delay of eleven or twelve months should be condoned. We do not quite see how the learned counsel can cite this judgment in support of his contention. The relevant paragraph of this judgment, wherein the objection as regards laches was noticed, is as follows

"The first (reason given in the judgment of the High Court dismissing the writ petition) is that there was laches on the part of the Company in bringing the petition. It seems that the petition was filed on the 24th February 1956. There had been an earlier petition brought under section 223‑A of the Govern ment of India Act, 1935, which however lapsed on account of the decision of the Federal Court that section 223‑A had not been brought upon the statute book in proper form (case of the Federation of Pakistan v. Moulvi Tamizuddin Khan P L D 1955 F C 240. It was not until a date in October 1955 that section 223‑A was once again brought into the Government of India Act, 1935. In the circumstances it is difficult to uphold the view of the learned Judges that the Company was guilty of gross laches' for during the period intervening between April and October 1955 when section 223‑A was off the statute book, there was great uncertainty as to whether it would ever be restored. In the circumstances, if the dismissal of the writ petition had rested upon the ground of laches alone, it would have been necessary for us to give closer examination to the question than appears from the judgment under appeal."

It is clear from the aforesaid that their Lordships of the Supreme Court had not fully examined the question of laches in the civil appeal in the course of which the dismissal of the writ petition by the High Court was being examined. Nor is it clear from the aforesaid paragraph what actually was the length of the delay in that case.

9. The learned counsel for the petitioner has also cited two other judgments of the Supreme Court reported as Pakistan v. Sheikh Abdul Hamid (P L D 1961 S C 105) and Manzur Ahmad P. F. S. (1) v. The Province of West Pakistan and others (PLD 1961 SC 166) on the point of laches, but both these judgments were pronounced in appeals arising out of writ petitions filed by Government servants in matters of their service. In Pakistan v. Sheikh Abdul Hamid (2), Sh. Abdul Hamid, the petitioner of the writ petition before the High Court, had prayed for a writ of mandamus to Govern ment directing it to restore the petitioner to his seniority. Their Lordships of the Supreme Court noticed the point of delay in their judgment in the following words :‑

"The point of delay in applying for a writ was also raised, but it is quite clear that Sheikh Abdul Hamid was not lacking in diligence in making representations throughout the period from 1949, when he suffered the injury, up to 1957, when he filed the petition in the High Court."

From the above it is evident that their Lordships had found that Sh. Abdul Hamid, the petitioner in that case; had been quite diligent in pursuing his remedies, inasmuch as he had been making representations to the Government up to 1957, when he made the petition. In Manzur Ahmad P. F. S. (1) v. The Province of West Pakistan and others, the objection regarding delay has been noticed by their Lordships in the following words :‑

"The writ petition was moved on the 15th July 1956, and an argument was raised as to delay in seeking the relief, but the correct position is that the writ jurisdiction of the High Court was only restored by the Constituent Assembly in October 1955, and we cannot see that there was inordinate delay in applying some nine months later."

From the above, it appears that the period of delay was nine months and that the matter before their Lordships related to the case of a Government servant who was agitating as regards his seniority. In the present case, we are dealing with a delay of more than eleven months and the case is of private parties who were already on terms of litigation with each others before the writ petition was filed. It appears to us that the case of a Government servant coming up with a writ petition to the High Court stands on a somewhat different footing from that of private person who have already embarked on litigation. A Government servant, as long as he is in service, labours under some inhibitions which are quite alien to the minds of persons who have already taken their matter before a judicial forum. Such a Government servant possibly takes longer to make up his mind, having an understandable apprehension that his invocation of the extraordinary jurisdiction of the High Court might mean, in case of a possible failure, uncomfortable displeasure of some of his officers. But we do not think that a longer period of limitation than is available to litigants in matters of appeals to the High Court should, normally, be allowed, in the absence of special circumstances, with respect to the filing of writ petition when the petitioners have already been engaged in litigation with their opponents. Want of diligence and speed on the part of such petitioners should seem to be inexcusable.

10. Nor is the citation of the Burmah Oil Company (Pakistan Trading) Ltd., Chittagong v. The Trustees of the Port of Chittagong (PLD 1962 SC 113) helpful to the petitioner. The writ petitions, whose dismissal became the. subject‑matter of appeals before the Supreme Court, had been filed by the petitioner companies after a letter of demand was issued to them by the Port Trust authorities for payment of outward river‑dues. The notices were issued in May 1960, on the strength of some notifications published in September 1955 and April 1956. The aforesaid judgment noticed the alleged laches of the petitioners in the following words :‑

"The ground of laches also appears to us to be misconceived, for the threat in question never assumed a lively aspect until a few months before the petitioner were instituted. As the learned Judges have themselves pointed out, the notification of 1955, does not per se operate to avoid the exemption and as for the notification' of 1956, it was wholly without legal effect, being merely expression of an opinion on a point of law, which appears moreover to have been totally incorrect. Therefore, the notifications of 1955 and 1956, did not provide any starting point for the estimation of time."

It is clear from the aforesaid excerpt from the judgment of their Lordships of the Supreme Court that they were of opinion that the delay in filing the writ petitions had only been of a few months. In the present case, the delay is not of a few months but of nearly a year, to say the least.

11. The learned counsel for the respondents cited Sind Industrial Trading Estates Ltd. v. First Assistant Judge, Hyderabad, West Pakistan and four others (P L D 1960 Kar. 826) in support of their contention that the petitioner's delay in the present case was inexcusable. In this judgment, which deals with three writ petitions, to which the objection of delay had been taken, it was held that a delay of seven months and eleven months, respectively, in the case of two of the writ petitions from the accrual of the cause of action was inordinate.

12. For the reasons set out above, the delay of more than eleven months in the present case appears to us to be wholly unwarranted, and as no attempt was made to explain away this delay despite a specific objection having been taken in the B affidavit of respondent No. 1, we do not feel inclined to condone it. We, therefore, dismiss this petition with costs.

K. B. A./A. H.

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