PROVINCE OF EAST PAKISTAN vs ABDUL HAMID DARR AND Other

1. HAMOODUR RAHMAN, C. J.-These two petitions have been filed by the Province of East Pakistan for leave to appeal from the orders of a Division Bench of the High Court of East Pakistan refusing to condone the delay in filing two appeals and dismissing the applications for the condonation of delay.

2. These appeals were sought to be filed to challenge the compensation awarded by the Court as arbitrator under secti--on 93-A of the Town Improvement Act, 1953, in respect of certain lands. The award of the Court in the case of Abdul Hamid Darji and others (Civil Petition for Special Leave to appeal No. 96-D of 1969) was made on the 22nd of September 967, and the appeal had to be filed by the 15th of March 1968, gut the memorandum of appeal was actually filed on the 31st of May 1969, without any application for condonation of felay. This application was put in on the 6th of July 1969.

3. It is said that in the Dacca High Court there is a practice according to which the application for the condonation, of delay is not put in until the memorandum of appeal is rejected by the office as being barred by time. If there is any such practice, it ought to be changed, because, the office of the High Court cannot decide whether a memorandum of appeal barred by time or not. This is the function of the Court itself. If a memorandum of appeal which is out of time is filed without an application for condonation of delay it ought not to be accepted by the office of the High Court.

4. Be that as it may, in this application all that was stated in paragraph 5 thereof in support of the prayer for condonation was as follows;---- "That it is extremely regretted that the file in question having been lost the appeal could not be filed in time and your petitioner had no control over the situation. That the delay is most unintentional and unavoidable."

5. Earlier in paragraph 4 it was stated that unfortunately nothing could be traced out about those matters and corres--pondences in the Legal Remembrance---s Office, as the whole file with respect to the said proposal of Arbitration Case No. 83 of 1964 has been misplaced."

6. As against this, it is now admitted that it transpires from the file of the Deputy Commissioner, Dacca, that the notice of the award was given to the Government on 16-12-67 and the Deputy Commissioner himself wrote to the Legal Remembrances on the 28th of December 1967, proposing that an appeal should be pled.

7. On these facts, the High Court took the view that if in such circumstances it was to condone the "inactivity or negligence" of Government officials it would have to condone delay as a matter of course in all cases, no matter what the period of the delay or what the nature of the circumstances under which the delay occurred.

8. Learned counsel, however, contends that the High Court was wrong in taking the view that any question of negligence at all arises in this case, for, the file was lost in circumstances over which the petitioner had no manner of control. This is an argument which does not lie in the mouth of the petitioner, the Government of East Pakistan, for, it is difficult to imagine that in a Government Department a file can be lost so easily and that it is nobody's responsibility to see that correspondence received by the department is attended to in time. Every correspondence which comes into or goes out of a Government office, is duly entered in a register and if it is not put up before the appropriate authority within a reasonable time, there should be some one who should be in a position to check as to why this has not been done. If this is not being done, there is something seriously wrong in the department concerned. It is not only the negligence of one person in the department but the negligence of all including the Head of the Department.

9. It is impossible to conceive of a situation in which repeated letters of the Deputy Commissioner could remain untraced, particularly, when execution was being taken out and Government property actually attached.

10. We also find it difficult to appreciate why the Deputy Commissioner, when he did not receive any reply to his proposal for filing the appeal, did not personally contact the Legal Remembrancer himself, by telephone or otherwise, and enquire into the fate of his proposal. In any event, if ever there was a case of negligence we are satisfied that this is one. It is idle on the part of the learned counsel appearing for the Government to contend that there was no negligence on the part of officials of the Government in the circumstances of this case.

11. This is not all. As the High Court has rightly pointed out, the petition for condonation of delay is itself vague and lacking in material particulars. The High Court was called upon to act on nothing more but the bare assertion in the petition for condonation of delay, affirmed by an assistant in the Legal Remembrancer's office, that the relevant files had been lost.

12. As to the legal aspect of the question, namely; as to what is or is not sufficient cause for the purposes of an application under section 5 of the Limitation Act, it is manifest that no hard and fast rule can be laid down nor is it desirable that this should be done. Each case has to be considered on its own facts. What may be sufficient in one case may well not be sufficient in another case, but this much is certain that where by lapse of time a valuable right has accrued to the other sides it should not be lightly taken away.

13. This Court has furthermore repeatedly pointed out that in an application under section 5 of the Limitation Act it is, the duty of the party seeking condonation to explain each day' delay, and unless this is done, the delay should not be condoned particularly, where valuable rights have accrued to the other sides.

14. This Court has also in several cases had occasion to point out 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. If in spite of these facilities the Government cannot comply with the requirements of the law of limitation, then it is for it to take steps to have that law changed and not to ask the Courts to give a different interpreta--tion to its provisions. In this view of the matter, the High Court's decision in these two petitions is unexceptionable.

15. The order of the High Court in the case of Aftabuddin and others (Civil Petition No. 97-D of 1969) is a brief one based entirely on the reasons given by it in the other case. Presumably the facts there for are also the same. No separate discussion of the facts thereof are thus called for. Both these petitions are accordingly disposed of by this order.

16. Before parting with these cases we would like to point out that in these cases there is another very good reason for which we should not interfere. It lies, in the discretion of the High Court to condone or not to condone the delay under section 5 of the Limitation Act. With such a discretionary order this Court does not ordinarily interfere unless it is satisfied that the discretion has been exercised arbitrarily, whimsically or perversely or in such a manner as to divert the law into wrong channels.

17. In the cases now under consideration we are not in a position to say that the High Court's order suffers from any such defect. The order is an exhaustive and well-reasoned one in which the law has been fully considered and a number of relevant decisions of this and other Courts referred to therein.