Dr. Syed SIBTAIN RAZA NAQVI vs HYDROCARBON DEVELOPMENT and others

' KHILJI ARIF HUSSAIN, J.--- The petitioner aggrieved by the judgment dated 24-6-2011 passed in Writ Petition No,4088 of 2010 by the Islamabad High Court, Islamabad, seeks leave of the Court.

2. This petition, as per office note, is barred by 65 days and C.M.A. No, 4953 of 2011 has been filed under section 14 of the Limitation Act for condensation of delay.

3. Brief facts of the case are that after dismissal of departmental appeal, against the order of compulsory retirement, the petitioner filed writ petition before the Islamabad High Court, Islamabad which was dismissed on 24-6-2011. The petitioner filed I.C.A. On 9-7-2011, which too was dismissed on 22-9-2011 being not maintainable. The petitioner, through instant petition, impugns the order dated 24-6-2011 along with an application for coadunation of delay under section 14 of the Limitation Act, (hereinafter referred to as the Act").

4. Heard learned counsel for the petitioner.

5. Learned counsel for the petitioner has contended that after dismissal of the petition, on 22-6-2011 the petitioner filed I.C.A. Which was found not maintainable vide order dated 22-9-2011 and that in these circumstances, the period of delay in filing the petition may be condoned, as the petitioner was pursuing the remedy before wrong forum.

6. We have taken into consideration arguments advanced by the learned counsel for the petitioner.

7. To appreciate the question, we would like to reproduce section 14 of the Act which reads as under:-- "14. Exclusion of time of proceeding bona fide in Court without jurisdiction. (1) In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceedings, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.

(2) In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it."

Explanation I.---In excluding the time during which a former suit or application was pending, the day on which that suit or application was instituted or made, and the day on which the proceeding therein ended, shall both be counted.

Explanation II.---For the purposes of this section, a plaintiff or an applicant resisting an appeal shall be deemed to he prosecuting a proceedings.

Explanation III.---For the purposes of this section misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.

8. On perusal of section 14 of the Act, it appears that time spent in pursuing the proceedings before wrong appellate forum, cannot be excluded, for the purposes of filing of an appeal and in case appeal is barred by time the provision of section 5 of the Act can only be invoked, that too, by showing the sufficient cause.

9. The two expressions "due diligence" and "good faith" in section 14 do not occur in section 5 of the Act which enjoins only "sufficient cause". The expressions" due g diligence" and "good faith" used in, section 14 of the Act cannot be equated with the expressions "sufficient cause" used in section 5 of the Act. If it were so, the Legislature could have used identical expressions in both sections particularly when "good faith" has been defined in section 2(7) of the Act. The power to condone the delay and grant an extension of time under section 5 of the. Act is discretionary, whereas under section 14 of the Act, exclusion of time is B mandatory on the satisfaction of the condition prescribed in it.

10. The principle that appeal is continuity of original proceeding before the appellate Court, as held in the cases of Sherin v. Fazal Muhammad, (1995 SCM R 584) and Tasneem Ismail v. Wafi Associates, (2007 SCM R 1464), is of no help to the petitioner. The law of limitation takes away the rights of parties, the same must be construed liberally, but without any violation to the intent of legislature. Limitation Act is to be read as a whole and its provisions are to be construed harmoniously.

11. On reading Section 14 of the Act along with section 2(10), it appears that legislature specifically excluded the appeal or an application from the purview of "Suit". We left no doubt in our mind that benefit of section 14 of the Act cannot be extended to exclude the time consumed in prosecuting an appeal before wrong forum having no jurisdiction, for the purposes of filing an appeal before a forum having jurisdiction.

12. The petitioner filed writ petition which was dismissed on C 24-6-2011 and he filed I.C.A. Before the Islamabad High Court, Islamabad on 9-7-2011, which was dismissed on 22-9-2011 being not maintainable. Instead of filing the petition within time the petitioner filed instant petition on 27-10- 2011 and no plausible explanation has been given for not filing the same within reasonable time after the dismissal of I.C.A.

' For the foregoing reasons, C.M.A. No, 4953 of 2011 is dismissed, resultantly, the petition is also dismissed and leave to appeal is refused.