IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA
Civil Rev. Appln.81 of 2003 : P.O Sindh & Others
vs. Abdul Baqi & Others.
For the Applicants : Mr. Liaquat Ali Shar,
Additional Advocate General Sindh
For the respondent 1 : Mr. Ghulam Dastagir A. Shahani and Mr. Vinod Kumar, Advocates
Date of hearing : 17.02.2022
Date of announcement : 17.02.2022
ORDER
Agha Faisal, J. This, admittedly time barred, civil revision application was preferred in 2003 along with application under section 5 of the Limitation Act 1908, seeking condoning of delay. This application, along with the revision, has been pending for almost two decades and shall be endeavored to be determined today.
2. Briefly stated, there are concurrent findings in favour of the respondent and the appellate court judgment is dated 05.03.2003, ostensibly rendered in the presence of the learned counsel for the respective parties. Even though the judgment was rendered on 05.03.2003, the present applicants applied for a certified copy on 20.09.2003. Even then the cost was not paid and the same was paid subsequently on 25.09.2003, on which date the certified copy was provided to the present applicant. Notwithstanding the foregoing, the applicant presented the present civil revision application on 08.10.2003, prima facie well beyond the 90 days' period of limitation.
3. Learned Additional Advocate General, Sindh has argued that the delay was occasioned on two counts; firstly that the court was in summer recess between June 2003 and August,8, 2003; and secondly that the applicants had been provided with the certified copy of the wrong judgment, hence, had to repeat the process causing further delay.
4. Learned counsel for the respondents submit that limitation is a substantial right and no preferable treatment could be afforded to the State in such regard. It is further stated that as the present revision application is hopelessly time barred, however, has remained pending for almost 20 years merely on the issue of limitation thus prejudicing the interests of the respondent, which have already been recognized by the learned trial court and the appellate court.
5. Heard and perused. It is observed that while the judgment is dated 05.03.2003, it has never been the applicants' case that the judgment and the date of delivery thereof was not in within their knowledge. Notwithstanding the foregoing, even the certified copy thereof was applied more than six months after rendering of the judgment. Learned AAG has articulated no justification for this six months' delay.
6. The record demonstrates that even though the certified copy was applied for on 20.09.2003, the cost in respect thereof was not paid until five days thereafter. No justification has been given for this delay either.
7. In so far as the question of summer vacation is concerned, it is settled law that even if there is a vacation in the intervening period, the proceedings had to be filed on the first opening day of the court. Admittedly the same was not done for more than two months' post opening of the courts post the summer vacation.
8. In so far as the final ground is concerned that the applicants received a wrong copy, it is observed that at the very first instance with the said copy was never applied for until more than six months after the date of judgment and even then the cost was not paid until five days thereafter. The record demonstrates that the certified copy was delivered to the applicant on the same day, as the cost was paid, without any demur by the applicant. There is nothing on the record to substantiate that the wrong copy had been given and if so why the same had been accepted by the applicant. There is also absolutely no corroboration of the applicants having repeated the process for obtaining the certified copy.
9. It is the considered opinion of the Court that the prescriptions of limitation are not mere technicalities and disregard thereof would render entire law of limitation redundant[1]. It has been maintained by the Superior Courts consistently that it is incumbent upon the Courts to first determine whether the proceedings filed there before were within time and the Courts are mandated to conduct such an exercise regardless of whether or not an objection has been taken in such regard[2]. It has been maintained by the honorable Supreme Court[3] that each day of delay had to be explained and that in the absence thereof the proceedings ought not to be entertained. In the present facts and circumstances the delay could obviously not be justified.
10. It is therefore the considered view of this court that the learned AAG has failed to set forth any case for condoning of delay.
11. Before parting herewith it is appropriate to record that this order was dictated / announced in open court today, however, upon the same having concluded the learned AAG insisted upon a novel plea, being that no limitation runs in respect of void orders and since, according to him, the impugned judgments were void orders, hence, not subject to limitation. Merely alleging that a judgment is void does not preclude a person from the ambit of limitation and it is settled law that shelter cannot be taken behind such assertions to vitiate the statutory requirements in respect of limitation. Applicants are supposed to be vigilant in respect of their case and cannot claim any indulgence on account of their own indolence[4]. Even otherwise, this belated plea is in stark contradiction to the revision being admittedly time barred as it is for such reason that the application for condoning of delay was preferred by the applicants.
12. In view hereof, the application for condoning of delay is hereby dismissed, as being devoid of merit. As a consequence thereof present civil revision application and all pending applications are dismissed.
JUDGE
[1] Mehmood Khan Mahar vs. Qamar Hussain Puri & Others reported as 2019 MLD 249.
[2] Awan Apparels (Private) Limited & Others vs. United Bank Limited & Others reported as 2004 CLD 732.
[3] Lt. Col. Nasir Malik vs. ADJ Lahore & Others reported as 2016 SCMR 1821.
[4] Abdul Hamid vs. Abdul Qadir reported as PLD 2001 SC 49; Altaf Hussain & 2 Others vs. Muhammad Nawaz & 2 Others reported as 2001 SCMR 405.