WAPDA vs M.A. RASHID

ORDER

' SAIDUZZAMAN SIDDIQUI, J.---The petition is barred by 24 days. The learned counsel for the petitioner contends that the judgment in Civil Revision No,63 of 1997 was reserved on 5-12-1997 and the petitioner came to know about the judgment on 10-1-1998. The delay in filing the petition also occurred, according to learned counsel, as the approval of Head Office was awaited and as soon as it was available the petition was filed. Alternatively, it is argued by the learned counsel for the petitioner that the judgment and decree passed by the learned trial Court is void and therefore, limitation cannot come in the way of filing of the instant petition. Reliance is placed on the case of Pakistan v. Muhammad Yaqoob Butt (PLD 1963 SC 627). The contention of the learned counsel has no force.

2. There is nothing on the record to show that the judgment in Civil Revision No,63 of 1997 was reserved. On the contrary, the impugned order shows that the judgment was passed dismissing the Revision Application in limine on 5-12-1997. Although, according to the averment in the application for condonation of delay, the petitioner came to know of the impugned order on 10-1- 1998 but the application for grant of certified copy was made on 12-2-1998, after expiry of the period of limitation, and the same was granted on 17-1-1998. The petition was filed in this Court on 27-2-1998. The learned counsel for the petitioner is unable to assign any plausible reason for not filing the above petition, after grant of the certified copy until 27-2-1998. There is also no plausible explanation for not applying for the certified copy of the order, dated 5-12-1997 until 12-2-1998. The contention of the petitioner that the delay in filing the above petition resulted on account of late sanction received from the Head Office for filing of the above petition is hardly a ground for condoning the delay.

3. The learned counsel for the petitioner, however, contended that the judgment and decree passed by the Trial Court is void as the liability of the petitioner was vicarious in nature and in the absence of the impleadment of the person who allegedly demanded illegal gratification from the plaintiff/respondent, no decree could be passed in the suit against the petitioner. Reliance in this connection has been placed on the case of Pakistan (through the Secretary, Ministry of Rehabilitation) v. Muhammad Yaqoob Butt (PLD 1963 SC 627). The above case relied upon by the petitioner is hardly of any assistance to the petitioner as the ratio laid down in the above case was to the following effect:-- ' "It is well-settled and even learned counsel for the appellant is forced to concede that the Government would be liable if---

(i) it takes the benefit of property illegally detained by its servants; or

(ii) it had ratified the tortious act of its servants.

' Neither of these propositions needs the support of elaborate reasoning. If the Government takes the benefit of illegally detained property it cannot be allowed to repudiate its liability and if it ratifies the act of its servant it adopts that act as its own. In fact, at least ordinarily, cases falling under the first class will be cases falling under the second class too, for, when Government takes the benefit of property it ratifies the act of its servant. In the present case both these conditions are satisfied. The property in dispute had been disposed of by the District Magistrate as unclaimed property and we can safely presume that the proceeds had gone into the Government Treasury. It is nobody's case that the proceeds were misappropriated by the District Magistrate or by any other authority concerned with the disposal of the property. If the proceeds of the property themselves are in the possession of the Government, the Government is liable for the value of the property. The price for which the property was actually disposed of is immaterial. The respondent cannot suffer if the sale of his property was at less than the market value. At the same time there is ratification by the Government of the acts of its servant by the Government. The Government has allowed the money to remain in its own treasury. The Government has not taken up the position that the payment into the Government treasury of the proceeds of sale was unauthorized and that proceeds have not been appropriated by it. The Rehabilitation Authorities and District Magistrate were at the time acting on behalf of the Government and there has been no repudiation at all by the Government at any stage of the suit of the acts of its officers. As already observed the point had not been raised in either of the Courts below. Even in the grounds of appeal to the High Court nothing was said as to the officers having acted on their own in violation of law and against the instructions of the Government. The custody of the property by the officers of the Government was on behalf of the Government and it has never been disclaimed by the Government."

4. We are unable to agree with the learned counsel for the petitioner that in the facts and circumstances of the case the decree passed by the trial Court was void and therefore the question of limitation would not arise. No case for condonation of delay in filing the petition is made out. This petition is accordingly dismissed as barred by limitation.