CHAIRMAIN, N.W.F.P. FOREST DEVELOPMENT CORPORATION and others vs KHURSHID ANWAR KHAN and others

1. ' MUHAMMAD AFZAL ZULLAH, CI-These two direct civil appeals have arisen out of dispute between a Forest Contractor and the Forest Development Corporation of N.-W.F.P. The facts as narrated in the impugned judgment, briefly, stated are that the respondent/plaintiff by agreement dated 1-2-1979 was given the contract for harvesting the timber. The plaintiff/contractor complained that he had performed his part of the contract without there being reciprocal facilities and payments by the department. The latter complained that despite extension in time, from time to time, the contractor failed to perform his obligation& The trial Court decreed the suit of the contractor and granted money decree in his favour for over Rs,7,00,000 with compound interest at 11 per cent per annum.

2. The High Court reduced the amount to about Rs,5,00,000 with 11 per cent simple interest. The department has appealed for further reduction of the amount rather for recovery from the contractor on account of overpayment while the contractor has filed appeal for restoration of the decree passed by the trial Court.

3. ' The High Court accepted the assertions from the department made in ground No,6 of their memorandum of appeal which read as follows:- "Originally the plaintiff was required to produce 15% outturn of pharras. According to clause 10(a) of the Contract to obtain the maximum quantity of good quality timber, the appellants have relaxed the condition from 15% to 40% of Log Volume and the plaintiff is not entitled to receive at the rate of 53%."

4. ' The High Court observed that the matter in controversy between the parties 'thus has narrowed down to the extent that an assessm ent of the outstanding amount against the appellants and due to the respondent, can be made with not much difficulty and can be assessed on the basis of 40% of the log volume, 'on which even the respondent seems to be agreeable'. The High Court then undertook, with the assistance of the parties' counsel, an exercise to work out the precise amount.

5. ' Learned counsel for the appellants has contended that while doing so the High Court has fallen into errors of calculations.

6. ' The learned counsel for the respondent stated that although he himself is not an expert of these calculations in cases like the present one he would not necessarily refute the assertion made by the learned counsel for the appellant but would accept or rebut the assertion only after seeking help and guidance from his own clients. Thus, in so far as Civil Appeal 295 of 1990 is concerned the only question to be further determined is regarding the calculations and fmal amount.

7. ' In the other appeal filed by the contractor, his learned counsel contended that 53% of the log volume granted by the trial Court merited to be restored. We do not agree with him. Even before the High Court this position was given up and the counsel for the contractor had agreed on 40%.

8. Accordingly, while we partly allow Appeal No,295 of 1990 and correct the calculation. In instead of 53% log volume of calculation only 40% log volume is to he counted. The appeal filed by the contractor; namely, Civil Appeal No,1 of 1991 is thus dismissed.

9. Before closing this order it needs to be mentioned that both the appeals are time-barred. The appeal of the department is time-barred if it is treated as direct appeal. If, however, it is treated as petition for leave to appeal it having been filed within 60 days it is within time. In view of the fact that the error regarding calculation seemed apparent on record, we accordingly, permitted on oral request of the learned counsel for the department to convert the appeal into a petition for leave to appeal and allowed the same- reconverting it into appeal, of course, after hearing both the learned counsel. Thus, the question of limitation looses its significance. This procedure was also followed in a recent case of Sardar Abdur Rauf Khan v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad 1991 SCM R 2164.

10. ' The appeal of the contractor .Was not filed within the period of limitation for filing a petition for leave to appeal. Thus, the same is barred by time, whether looked at as a direct appeal or as a petition for leave to appeal. However, having treated it as petition for leave to appeal we, as discussed above, have dismissed the same on merits.

11. A further point needs to be mentioned that the learned counsel for the appellants before relying on the judgment of this Court in the case of Sardar Abdur Rauf also tried to argue that the period of limitation for filing direct appeal in this Court as provided in the C.P.C. Is 60 days. While framing the Rules for the Supreme Court, for filing the appeal the period was fixed as 30 days. And as the period fixed in the C.P.C. a statute, is beneficial to the appellants in Appeal No,245 of 1990 the same should be adopted in preference to the period prescribed by the rule framed for the Supreme Court.

12. Apart from the position that acting under the rules framed by virtue of the Constitutional power the Supreme Court is not bound to follow any other statutory dispensation which comes in conflict with the independence of judiciary; in the context of the present argument the Supreme Court is not even bound by the provisions of the C.P.C. And Cr.P.C. In so far as the regulation and control of practice and procedure of the Court itself is concerned. These assumptions further get support from our Constitutional set up which preserves the independence of superior Courts, by a definite mandate including the command in the Objectives Resolution that independence of the judiciary has to be fully secured. The word 'fully' and 'secured' are explicit enough not to leave any doubt in this behalf. While this judgment was being prepared the learned counsel with the assistance of their clients have worked out the relevant calculations as follows:-- "The parties have agreed that the respondent is entitled to Rs,1,60,569 for which decree may be passed with orders of costs on parties."

13. ' In the light of the foregoing discussion the Appeal No,295 of 1990 is allowed in terms of the aforereproduced agreement between the parties. The other appeal; namely, C.A.1 of 1991 is thus dismissed. There shall be no order as to costs.