PAKISTAN through Secretary, Ministry of Defence vs Messrs AZHAR

' AJMAL MIAN, J.---Leave to appeal was granted by this Court to consider, whether the High Court was justified in dismissing the appellant's appeal on the ground of limitation by declining the application under section 5 of the Limitation Act, and whether the ratio of the judgment given by this Court in the case of Pakistan Post Office v. Settlement Commissioner and others 1987 SCM R 1119 was applicable to the present case as to the condonation of delay.

2. The brief facts to be noted are that the respondent was awarded a contract for construction and widening of runway at Pakistan Air Force Base, Mianwali, hereinafter referred to as the 'work' under a contract, dated 1974. Upon the completion of the work the respondent lodged a claim. After that he filed Civil Suit No, 265/638 of 1979/1981 on 7-6-1979 in the Court of Civil Judge, Ist Class, Mianwali, for the recovery of Rs, 13,27,648.43 under various heads. The above suit was resisted by the appellant. During the trial of the suit with the consent of the parties, one Lt.-Col. Maqbool Ahmad, was appointed as a Commissioner for determining the amount payable by the appellant to the respondent for the work done by them. The latter submitted his report recommending a sum of Rs, 10,06,932.53. After that the learned Civil Judge, after hearing the parties, passed the decree of the above sum against the appellant in favour of the respondent. The appellant being aggrieved by the above judgment filed R.FA. No, 175 of 1986 in the Lahore High Court at Lahore. Alongwith the above appeal, an application under section 5 of tha Limitation Act for condonation of delay was filed without specifying the period of the delay. The above appeal was admitted for regular hearing by the High Court, which was disposed of by a Division Bench by the judgment under appeal, whereby the appellant's above appeal was dismissed on the ground of limitaion. The appellant has, therefore, filed the above appeal.

3. In support of the above appeal, Mr. Mohammad Afzal Siddiqi, learned Deputy Attorney-General, has submitted that, since the respondent was in league with the appellant's some of the officials in the department concerned, the appeal could not be filed within time. He has further submitted that there was sufficient ground, which warranted the condonation of delay by the High Court. However, he has conceded that appellant's appeal in the High Court should have been filed by 13-9-1986 but in fact it was filed on 30-10-1986 i,e. Barred by time by about 46 days. We enquired from him, as to whether in the application under section 5 of the Limitation Act or in the supporting affidavit any averment was made to the effect that the appeal in the High Court could not be filed as the appellant's some of the officials were in league with the respondent, his reply was in the negative.

In the absence of any such averment in the aforesaid application under section 5 of the Limitation Act or in the supporting affidavit, the above contention is not tenable. The respondent was entitled to have an opportunity before the High Court to meet such an averment if it would have been made.

4. This leads us to the question, whether otherwise there was a case for condonation of delay of 46 days by the I Iigh Court which it wrongly declined. In the leave granting order inter alia reference has been made to the case of Province of East Pakistan v. Abdul Hamid Darji and others 1970 SCM R 558 and the case of Pakistan Post Office v. Settlement Commissioner and others 1987 SCM R 1119. In the first case, this Court declined leave to appeal against the judgment and order of the erstwhile High Court of East Pakistan. The appeal in the High Court was barred by limitation. In that context this Court while declining leave to appeal inter alia observed that as to what is or is not sufficient cause for the purpose of an application under section 5 of the Limitation Act, no hard and fast rule can be laid down nor is it desirable that this should be done. It was further observed that each case has to be considered on its own facts and that so far as limitation is concerned, the Government cannot claim to be treated in any manner differently from an ordinary litigant because of the fact that the Government enjoys unusual facilities for the preparation and conduct of their cases and its resources are much larger as compared to a private litigant. In the above second case referred to hereinabove, while allowing appeal against the judgment of the Peshawar High Court passed in a writ petition this Court commented upon the above earlier judgment of this Court as follows:-- "It is necessary to mention here a peculiar featurc of Government litigation. No doubt, it was observed in Province of East Pakistan v. Abdul Hamid Darji 1970 SCM R 558 that in matter of condonation of delay under section 5 of the Limitation Act the Government will not be shown extra indulgence than an ordinary litigant and if so desired only as amendment of law was the way out.

The further experience of nearly two decades after that judgment shows that the inability on the part of the Government to get such an amendment made, has been treated as an accepted and inviolable rule to refuse condonation of delay whenever the plea is raised of departmental delays; which arc inherent in the procedures even if culpable negligence is not involved. A just and proper approach which has not been prohibited by the rule in Abdul Hamid Darji's case, is to treat the request for condonation on its own merits like that of any other, litigant; and not to shut out the plea on simple formula that it is mere departmental delay negligence; because the decision itself, does not lay down such an inflexible rule. The facts of that case and the condition that each case is to be seen on its own circumstances, cannot at all ignored. It is well-known that indiscriminate application of this decision has caused immense loss to the public exchequer wherein an innocent third party, namely, the tax-payer in ultimate advises, suffers the loss. This is besides those cases where delays are collusive so as to avoid dictates of justice and law. Hence, a departmental delay whenever put forward as a ground for condonattion of delay requires consideration on its merits and rejected or accepted accordingly. As the case may be."

' The ratio of the above case seems to be that the Court before declining an application under section 5 of the Limitation Act filed by the Government has to examine the reason for delay keeping in view that some departmental delay may be genuine and justifiable.

5. Applying the above test to the present case, we find that the High Court was justified in declining the condonation of delay of 46 days. It is a well-settled principle of law that under section 5 of the Limitation Act, delay of each day is to be explained. In the present case, the reasons for the delay have been mentioned by the appellant in the application under section 5 of the Limitation Act, which have been reproduced in the judgment under appeal by quoting paras 1 to 5 of the aforesaid application. A bare perusal indicates that the appellant's department has been grossly negligent in dealing with the case. The Advocate, who was appearing for the appellant before the High Court, had declined to appear on 10-4-1986, which was three days before the judgment was announced by the High Court, which was announced on 13-4-1986. There is no indication what actions/ steps were taken by the appellant's department from 13-4-1986 to 24-6-1986 when the department was advised by another Advocate, Mr. Salim Akhtar, that the appeal was to be filed within 90 days. There is also no indication that after having received the above opinion of the Advocate on 24-6-1986, as to when the file was sent to the Justice Division for opinion. We enquired from the learned Deputy Attorney-General as to the date of despatch of the file to the Justice Division by the Defence Division. He was unable to give any reply even after consulting the representatives of the department. The file was received by the Defence Division from the Ministry of Justice as per para. 5 of the appellant's above application under section 5 of the Limitation Act on 21-10-1986 but the appeal was filed on 30-10-1986. It is unfortunate that the appellant which is the State on account of negligence on the part of the officials concerned went in default. However, as the law stands, the Government cannot be treated differently than a private litigant on the question of limitation under section 5 of the Limitation Act. We may observe that if in the present case the appellant would have made an averment in their application under section 5 of the Limitation Act that the delay had occurred on account of deliberate act on the part of its some official who was in league with the respondent and if that ground would have been substantiated, it would have been a good ground for condonation of the delay. As pointed out by us hereinabove that this ground was not taken up by the appellant before the High Court and, therefore, the High Court, in the absence of any such ground of having been raised, could not have condoned the delay. The above appeal has, therefore, no merits and hence it is dismissed but there will be no order as to costs.