TOWN MUNICIPAL ADMINISTRATION, TOWNI, PESHAWAR vs RIFAT HUSSAIN

' This R.F.A. Is directed against the judgment and decree dated 10-7-2001 of the learned Civil Judge Peshawar whereby he decreed the suit of the respondent for recovery of Rs,10,00,000 (Rs, Ten Lacs) as damages.

2. The learned counsel appearing on behalf of the appellants contended that the appeal in this case could not have been filed within time prescribed therefore as after the promulgation of N.- W.F.P. Local Government Ordinance, 2001, the entire structure of the Local Government underwent a radical change therefore, the delay in filing the appeal is liable to be condoned and that the order striking off the defence on account of failure of the appellants to file written statements was also uncalled for as they were not served in accordance with the requirements of law. The learned counsel by referring to the order-sheets further submitted that the learned trial Judge was interested just in the disposal of the case with least concern to do justice between the parties, therefore, the impugned orders be set aside and the appellants be allowed to submit written statements and contest the case on merits.

3. The learned counsel appearing on behalf of the respondent contended that the appellants knew all along about the impugned orders and that the delay of more than ten months has not been explained in accordance with the requirements of section 5 of the Limitation Act, tuerefore, in the circumstances of the case, the appeal of the appellants be dismissed as there is no justification in law or morality to give them an exceptional extraordinary or unusual treatment.

4. I have gone through the record and carefully considered the submissions of the learned counsel for the parties.

5. A perusal of the order-sheets would indicate that the learned trial Court right from the very inception intended to proceed with an indecent haste in flagrant disregard of the provisions contained in the C.P.C. In general and section 80 in particular. Where the Secretary Government was a party, the learned trial Judge was required to allow not less than 3 months for submitting its written statement, provided, of course, he was served in accordance with law. Similarly without complying with the provisions of section 80 of the C.P.C., he was not supposed to have struck off the defence of the appellants under Order VIII, rule 10 of the C.P.C. It is quite strange to note that summonses were issued only in the name of Administrator of the Municipal Committee notwithstanding the fact that the Secretary, Local Government was also a party. So long as the Secretary, Local A Government was not served there was absolutely no justification whatever to strike off defence or close his right to cross-examine the witnesses. In this view of the matter, even though the appeal is barred by time and delay has not been explained in accordance with the requirements of law, the Courts of law cannot shut their eyes and allow injustice to reign Supreme.

Leaving aside the appeal, this Court in view of the facts high-lighted above shall be constrained to exercise its suo motu revisional power to prevent the abuse of the process of the Court and consequent injustice.

6. No doubt in a row between citizens and State, the latter cannot be given different or preferential treatment but at the same time it cannot be allowed to be treated in a manner defying all the dictates of procedural law meant to protect its rights as litigant.

7. For the reasons discussed above, all the orders passed to the detriment of the appellants are set aside with a cost of Rs,15,000 (Rs, fifteen thousand) to be paid by the appellants to the respondents in the trial Court and the case is sent back to the learned trial Judge for trial ' denovo in accordance with law. The parties are directed to appear before the concerned Court on 7-3-2003.