PAKISTAN Versus Mrs. GULNAR SHER MUHAMMAD
The facts giving rise to this second appeal are that the plaintiff/respondents filed a suit on 6‑6‑1988 for recovery of Rs.7,07,443 against the defendants/appellants detailing as under:‑‑
(i) Compensation for the retention of the requisitioned house from 10th April, 1984 upto 3‑2‑1985 the period of 9 months 22 days without lawful authority at the monthly rate of Rs.25,000 after excluding Rs.5,000 per month already received Rs.1,96,143.
(ii) Special compensation and damages for occupation of the house during the period 13‑1‑1985 to 3‑2‑1985 (22 days) @ Rs.10,000 per day equal to Rs.2,20,000.
(iii) Special damages @ Rs.7,000 per month (excluding compensation at the rate of Rs.5,000 per month) for a period of 35 months and 9 days commencing from 1‑5‑1981 to 9‑4‑1984, total amount being Rs.2,47,100 inasmuch as the conditions laid down in the consent order regarding de‑requisitioning were violated.
(iv) Rs.11,000 as cost of the broken two bath rooms sets duly noted at the time of taking over.
(v) Rs.23,200 spent on removal of Burnt Grass and spreading fresh grass after necessary filling.
It was alleged that House. No.90 Khayaban‑i- Margallah, F‑6/2, Islamabad requisitioned by Deputy Commissioner, Islamabad vide order dated 24‑10‑1981 under section 7 of Immovable Property (Temporary Powers) Act, 1957 fixing the rent @ Rs.5,000 per month on the express condition that the house will be de‑requisitioned when the then Health Minister Dr. Nasrullah Jogezai ceased to be the Health Minister. He ceased to be a Minister on 9‑3‑1984 but the house was not vacated. Plaintiffs approached the Ombudsman but of no consequence. A Writ Petition No. 519 of 1984 was filed which was allowed on 12‑1‑1985 with costs. The possession of the house was handed over by the appellants on 3‑2‑1985 but total damage had been caused to the lawns and two bath room accessories. The plaintiffs spent Rs.11,000 on replacement on the bath‑room accessories and Rs.22,000 on removal of burnt grass and filling and plantation of fresh grass. By way of compensation and damages a total amount of Rs.7,07.443 was claimed: The suit was resisted denying all the allegations.
During the course of trial the parties agreed to refer the matter to a Referee and made a statement to this effect on 12‑1‑1991. With consent of the parties Mr. Muhammad Raza Khan, Director General (Complaints) Wafaqi Mohtasib (Ombudsman) Secretariat, Islamabad was, appointed as Referee. He submitted his report on 8‑4‑1993 Exh. P/A. The learned Referee made a statement on 8‑4‑1993 before the learned trial Court that the suit may be decreed for Rs.1,71,620. The learned trial Court decreed the suit on the same date in accordance with the statement of the learned Referee for an amount of Rs.1,71,620. An appeal was filed before the learned District Judge, 'Islamabad on 6‑6‑1993. An application under section 5 of the Limitation Act, for condonation of .the delay was also filed. The appeal came up for hearing before Mr. Dost Muhammad, Additional District Judge, Islamabad who vide his judgment dated 13‑11‑1993 dismissed the appeal being barred by time.
2. The learned Deputy Attorney General contended that the suit before the trial Court was barred by time and the Courts below failed to advert to the question of limitation. He submitted that the report of the Referee was in fact, an award and without inviting objections on the same, the decree could not be passed. He further argued that there was sufficient cause for condonation of delay and the learned Lower Appellate Court erred in not condoning the same.
Conversely the learned counsel for respondents defended the impugned order.
3. The learned Additional District Judge, Islamabad dismissed the appeal as being barred by time. He found that there was no justification for not applying for obtaining the certified copies for 11 days. The approval from the Justice Division was conveyed on 29‑5‑1993. The appeal could be immediately tiled with the request to extend the time for payment of Court‑fee but the same was not done. It is well‑settled that the Government on question of limitation could not be treated differently from ordinary litigant. See Federation of Pakistan through Secretary, M/o Foreign Affairs, Government of Pakistan; Islamabad and 5 others, (1996 SCMR 727). The Honourable Supreme Court in a recent case Central Board of Revenue, Islamabad through Collector of Customs, Sialkot. Dry Port, Samberial, District Sialkot and others v. Messrs Raja Industries (Pvt.) Ltd. through General Manager and 3 others; (1998 SCMR 307) held as under:‑‑
"This Court has repeatedly laid down that so far as the Limitation is concerned the Government cannot be treated differently from an ordinary litigant. If in spite of enormous resources and facilities, the Government continues to delay the tiling of cases in time detrimental to its own interest, the opposite party cannot be penalised for its negligence. It is a settled law that each day of limitation must satisfactorily be explained which the petitioner has failed to do in this case."
The condition of delay was the matter for the appellate Court. I see no justification to interfere in the same.
4. Both the parties agreed on the disposal of the case on the statement of the Referee. On 12‑12‑1991 learned counsel for the parties made the statement as under:‑‑
Mr. Muhammad Raza Khan, Director General, Complaints, Wafaqi Mohtasib submitted his report on 8‑4‑1993 and made statement before the trial Court on the same date that the suit may be decreed for a sum or Rs.1,71,620. The suit was decreed for the said amount the same day. The parties had agreed to refer the matter to the Referee whose name was also given by the parties. The contention of the learned Deputy Attorney General that the report of the Referee was analogous to award is devoid or any force. The distinction between 'Arbitrator' and Referee' was clearly spelt out by Aftab Hussain J. (as he then was) in Sher Zaman Khan v. Noor Zaman Khan and another. (PLD 1977 Lahore 672). It was observed:‑
"There is a clear distinction between Arbitrator and a Referee. An Arbitrator as held by the West Pakistan High Court and the Supreme Court of Pakistan is person who decides a dispute after an inquiry. The determination of dispute by such a person is essentially by following a judicial procedure keeping in view the principles of natural justice and the law of the land. Such decision is known as an award and can be made a rule of the Court after following the procedure of the Arbitration Act. The statement of a referee is not his finding. It is a statement made before the Court on the basis of knowledge or belief of the referee and has all the characteristics to operate as an admission of the parties on which a decree can be based by the Court. A statement made by the Referee on the basis of inference drawn from evidence taken by him is an award and not the statement of a Referee under section 20 of Evidence Act."
In Muhammad Hanif Khan and another v. Ghulam Farid Khan and others (PLD 1988 Lahore 25) it was laid down as under:‑
"The distinction between an Arbitrator and a Referee, therefore, is that the Arbitrator is authorised to decide after making an enquiry, but a Referee is not so authorized. All that a Referee is required to do is to make a statement according to his knowledge or belief; if he makes the statement, the statement is an admission of both the parties binding upon them, and as soon as the statement is made, it is perfected into an adjustment by a lawful agreement or compromise within the meaning of Order XXIII, Rule 3 of the of Civil Procedure."
Similarly, in Ch. Muhammad Saleem v. Muhammad Akram and others (PLD 1971 SC 516) it was held as under:‑
"The most important of an award, of course, is that it must emanate from a judicial determination. If a dispute is referred to a person and if that person decides that dispute by holding an enquiry and coming to decision then undoubtedly what that person decides would constitute an award. On the other hand, if a matter is referred to a person and he is not called upon either to hold an enquiry or to give a decision but by the exercise of his sagacity, knowledge or experience to bring about merely an understanding between the parties and restoring peace between them then he would only be discharging functions other than those of an Arbitrator."
Applying the principles to the instant case, it is clear from the statement made on 12‑1‑1991 that what the parties intended was that Muhammad Raza Khan should make a statement before the Court, which he did. The learned trial Court rightly decreed the suit on his statement: It was a lawful agreement or compromise between the parties. A decree passed on the basis of such an agreement when carried out by the statement of the Referee is binding upon the parties. In my view the petitioner was estopped from filing the appeal before the lower appellate Court.
5. As far as the suit being barred by limitation is concerned suffice to say that the petitioner/defendant gave up the plea and agreed to refer the matter to the Referee. In the case of Ram Chandra Deo Garu v. Chaitana Sahu and others (AIR 1920 P.C. 139) a suit for time‑barred‑ items in an, account was allowed to proceed. The principle laid down by the Privy Council was upheld by the Honourable Supreme Court in Sajjad Hussain v. Musarat Hussain Shah and others (1989 SCMR 1826) it was held as under:‑
"Having thus enter into a compromise and prompted the appellant to deposit the amount the respondents could not challenge it on the ground that the suit was barred by limitation. Even otherwise it was a question of mixed law and facts and could not be decided without recording the evidence. Once a question of limitation involves determination of fact, as well as of law, abandonment could not be undone by taking up plea in the Court. "
It was further observed as under:‑‑
"That once a question of limitation involves determination of fact, as well as of law, abandonment could not be undone by taking up the plea in the appellate Court on the ground that it is a question of law and not a mixed question of law and facts."
In the suit 5 different claims for specific sum under each item, giving different dates of cause of action, have been made. The same could not be decided without recording evidence. The plea of learned Deputy Attorney General is not tenable. Even otherwise the claim of the plaintiff for an amount of Rs.7,07,443 has been drastically reduced to Rs.1,71,620 by the "Referee'. The appellant is not prepared to pay the 'same and is dragging the respondent into litigation:
6. For what has been stated above this appeal has no merit and is dismissed with costs.
H.B.T./P‑71 /L Appeal dismissed.