Judgment Sheet
IN THE HIGH COURT OF SINDH AT KARACHI
High Court Appeal No. 235 of 2010
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Date |
Order with signature of Judge |
Present :
Mr. Justice Irfan Saadat Khan
Mr. Justice Nadeem Akhtar
1. For hearing of C.M.A. No.1924/2010 (U/S 5 of Limitation Act) :
2. For hearing of C.M.A. No.1925/2010 (Exemption) :
3. For Katcha Peshi:
4. For hearing of C.M.A. No.1926/2010 (Stay) :
Appellant : Chief Engineer, Building and Road Department, Government of
Balochistan, Quetta, through Mr. Zahoor Ahmed Baloch,
Additional Advocate General, Balochistan.
Respondent : M/S Umar Khan, through Mr. Abdul Hafeez Lakho Advocate.
Date of hearing : 21.05.2014.
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J U D G M E N T
NADEEM AKHTAR, J. – Through this appeal, the appellant has impugned the order passed on 20.05.2010 in Suit No.336/1975 by a learned single Judge of this Court, whereby the Award rendered on 23.07.1975 by the Sole Arbitrator appointed by this Court was made Rule of the Court.
2. The relevant facts of this case are that the respondent, which is a partnership firm, was awarded a contract for construction of a bridge on the Karachi-Quetta-Kalat Road at Uthal District Lasbella, which now forms part of the province of Balochistan. In view of some dispute between the parties with regard to the rates of the works executed by the respondent, the appellant was approached by the respondent for appointment of an arbitrator in terms of the agreement between them. Upon the failure of the appellant to appoint an arbitrator, the respondent filed an application under Section 20 of the Arbitration Act, 1940 (‘the Act’), on the original side of this Court praying that the appellant be directed to file the original agreement and an arbitrator be appointed to settle the dispute in terms of the Act. The application was registered as Suit No.404/1973, and was allowed with the consent of the appellant, whereby one Mr. Sultan Hamid Razvi, Deputy Secretary, Communication & Works Department, Government of Balochistan, was appointed as the arbitrator. As the arbitrator failed to enter upon in the reference, the respondent filed an application for his removal and for appointment of another arbitrator in his place. The appellant submitted its consent in writing at this stage also by suggesting the names of two Superintending Engineers of the Irrigation Department. A number of names were suggested by the parties, however on 23.09.1974, the learned single Judge appointed Justice (Rtd.) Feroz Nana Ghulam Ali as the sole arbitrator. The parties not only appeared before the learned sole arbitrator and participated in the proceedings before him, but time for making the Award was also extended with their mutual consent. The learned sole arbitrator rendered the Award on 23.07.1975, which was filed on the original side of this Court on 11.08.1975 and was registered as Suit No.336/1975.
3. The appellant filed objections to the Award mainly on the ground that the reference on the basis of which the Award was made by the learned arbitrator was invalid and without jurisdiction. While the appellant’s objections were pending, the High Court of Balochistan was established under the President Order VI of 1976. The respondent filed an application before the learned single Judge praying that the matter may be retained and heard by this Court and may not be transferred to the High Court of Balochistan. The said application was dismissed by the learned single Judge by holding that in view of Article 4(3) of the Balochistan & Sindh High Courts Order, 1976 (P.O. VI of 1976), the case stood transferred to the High Court of Balochistan. Against the said order, the respondent filed High Court Appeal No.12/1977 which was allowed by a learned Division Bench of this Court on 25.01.1978, by holding that the Suit did not automatically stand transferred to the Balochistan High Court though it was open to the respondent (the appellant herein) to contend that it did not lie in the original civil jurisdiction of this Court. It appears that the appellant did not challenge the judgment of the learned Division Bench before the Hon’ble Supreme Court, and as such the same attained finality long ago.
4. Thereafter, the question of jurisdiction of this Court to hear the appellant’s objections and to make a decree in terms of the Award was decided by the learned single Judge vide order dated 11.10.1999, whereby the objections raised by the appellant regarding the jurisdiction of this Court were accepted and the Award was returned for presentation before the proper Court in Balochistan. This order was assailed by the respondent through High Court Appeal No.358/1999, which was allowed by a learned Division Bench of this Court through a detailed judgment dated 13.06.2001, whereby it was held inter alia that in view of Section 31(4) of the Act, the learned single Judge was competent to hear and decide the objections to the Award ; and, once the reference and the Award made pursuant to the same were held to be valid, a decree in terms thereof could only be made by the Court making the reference in view of the explicit provision of Section 31(4) ibid. The matter was remanded by the learned Division Bench to the learned single Judge for hearing the remaining objections to the Award and deciding the matter in accordance with law. This judgment of the learned Division Bench was also not challenged by the appellant before the Hon’ble Supreme Court, and as such the same attained finality long ago.
5. On 20.05.2010, the appellant’s objections came up for hearing before the learned single Judge, when the appellant was represented by the Assistant Advocate General, Balochistan. After hearing the Assistant Advocate General, the learned single Judge rejected the objections filed by the appellant and made the Award Rule of the Court vide order dated 20.05.2010, and pursuant to the said order, the decree was drawn. The said order and the decree have been impugned in this appeal by the appellant. An application bearing CMA No.1924/2010 has been filed by the appellant under Section 5 of the Limitation Act, 1908, for condoning the delay in filing the appeal. Vide order passed on 06.05.2014, the learned Additional Advocate General Balochistan was put on notice to satisfy the Court with regard to the delay caused in filing the appeal as the appellant was required to explain the delay of each and every day.
6. Mr. Zahoor Ahmed Baloch, learned Additional Advocate General Balochistan, contended that the Award and the impugned order and decree are without jurisdiction and void ab initio, therefore, the question of limitation is of no significance in this case. In support of this contention, he submitted that the claim of the respondent was barred by time ; the cause of action, or any part thereof, never accrued within the jurisdiction of this Court ; this Court had no territorial jurisdiction to entertain the application filed by the respondent for referring the matter to arbitration, or for passing an order thereon for appointment of an arbitrator, or for hearing the objections to the Award, or for making the Award Rule of the Court. He further submitted that delay, if any, is liable to be condoned as valuable rights of the Government of Balochistan are involved in this matter, and where such valuable rights of any Government are at stake, the Courts generally lean in favour of the Government by condoning the delay. In support of this submission, he relied upon the case of Government of Balochistan through Secretary Member, Board of Revenue and another V/S Ghulam Muhammad and 4 others, 2001 SCMR 19.
7. In order to explain the delay in filing the appeal, the learned Additional Advocate General contended that the respondent and his counsel were absent on 20.05.2010, but the learned single Judge proceeded to hear the matter in their absence by directing the Assistant Advocate General Balochistan, who was present on that date on behalf of the appellant, to argue his objections ; the said Assistant Advocate General argued the matter on the same day, whereafter the matter was reserved for judgment; no order was passed or announced in the presence of the said Assistant Advocate General, but later on he came to know that the impugned order had been passed on 20.05.2010 ; and, as soon as the said Assistant Advocate General came to know about this fact, he applied for certified copies and filed the instant appeal along with his personal affidavit stating therein that the impugned order was not passed in his presence. He submitted that the delay is liable to be condoned in view of the above position also.
8. The appeal and the submissions made on behalf of the appellant were emphatically opposed by Mr. Abdul Hafeez Lakho, learned counsel for the respondent. He strongly refuted the assertion that the Award and the impugned order and decree are void ab initio or coram non judice. At the very outset, he submitted that the appellant has no right to raise any of the grounds / objections that have been urged either in the appeal or at the time of hearing as all such objections raised by them were not only rejected, but were also finally decided against them by a learned Division Bench of this Court. The learned counsel referred to the detailed judgment delivered on 13.06.2001 by the learned Division Bench of this Court in High Court Appeal No.358/1999, and placed a copy thereof on record for our perusal. He took us to the various parts of the said judgment with particular reference to the grounds urged on behalf of the appellant in order to demonstrate that all such grounds were fully covered and dealt with therein in an exhaustive manner. Without prejudice to his above submission, Mr. Lakho submitted that the appeal is miserably barred by time, and the contention of the appellant with regard to condoning the delay on the ground that valuable rights of the appellant are involved, is misconceived as Governments are not entitled to any preferential treatment when the question of limitation arises. He further submitted that the other ground urged by the appellant that the impugned order was not passed on 20.05.2010 and was not passed in the presence of the Assistant Advocate General, has no basis as it is contrary to the record.
9. We have heard the learned counsel for the parties and have also examined the record with their able assistance as well as the law cited by them at the Bar. In order to appreciate the contention of the learned Additional Advocate General Balochistan, we shall have to first see as to whether the Award and the impugned order and decree are void or not. In this context, we deem it necessary and important to refer to the judgment delivered on 13.06.2001 by the learned Division Bench of this Court in High Court Appeal No.358/1999, relied upon by Mr. Abdul Hafeez Lakho. We have thoroughly gone through the said judgment and have observed that each and every aspect / objection / ground that has been agitated before us in this appeal has been dealt with therein in an exhaustive manner by the learned Division Bench. As the findings of the learned Division Bench are extremely important and relevant for the purpose of the just and proper decision of this appeal, the same are discussed in brief in the subsequent paragraphs.
10. Regarding the objection of the appellant about the accrual of the cause of action, it was held inter alia by the learned Division Bench that in the absence of a provision to the contrary in the contract between the parties, the obligation of the debtor is to be discharged where the creditor resides ; part of the cause of action would arise where this obligation is not performed ; and, the cause of action in this case could also be deemed to have arisen within the District of Karachi.
11. With regard to the territorial jurisdiction of this Court, the contention of the present respondent was accepted by the learned Division Bench that under Section 21 CPC, an objection to the territorial jurisdiction of a Court could only be raised at the first opportunity, and on account of failure on the part of the present appellant to do so upon receipt of the notice of the application filed by the respondent under Section 20 of the Act, such objection could not be allowed to be raised subsequently ; and, once the arbitrator had entered upon the reference pursuant to the order of this Court, the Award made by him could only be filed in this Court alone in view of Section 31(4) of the Act. The learned Division Bench was further pleased to observe that the question as to whether Section 21 CPC is applicable to applications under Section 20 of the Act was settled by a learned Division Bench of this Court in the case of Project Director and another V/S Nawab Brothers Limited, 1982 CLC 1147. In view of the above, it was held that while an order under Section 20 of the Act can be appealed against under Section 39(iv) of the Act, objection with regard to the territorial jurisdiction of the Court passing the order cannot be raised in view of the specific bar contained in Section 21 CPC. It was further held that once the present appellant had failed to object to the territorial jurisdiction of this Court exercising original jurisdiction and the application was granted by referring the dispute to the arbitrator, the present appellant lost the right to object to jurisdiction under the general principles of Section 21 CPC ; and, it inevitably follows that when the arbitrator filed the Award given by him after having entered upon the reference after participation of the present appellant, this Court was competent to entertain the Award. After examining and discussing a large number of authorities of the Superior Courts of Pakistan and India, the learned Division Bench concluded that in view of Section 31(4) of the Act, this Court was competent to hear and decide the objections to the Award ; and, once the reference and the Award made pursuant to the same were held to be valid, a decree in terms thereof could only be made by the Court making the reference in view of the explicit provision of Section 31(4) of the Act.
12. A perusal of the judgment pronounced by the learned Division Bench clearly shows not only that the objections / grounds urged in the present appeal by the appellant were the same, but also that all such objections and grounds were rejected and were conclusively decided in favour of the respondent. It is important to note that after deciding all the said issues, particularly the question of jurisdiction of this Court, the matter was remanded by the learned Division Bench to the learned single Judge only “for hearing the remaining objections to the Award and deciding the matter in accordance with law”, which were accordingly heard and decided by the learned single Judge through the impugned order. This clearly means that under the principle of res judicata, the question of jurisdiction of this Court cannot be reopened or re-agitated by the appellant at this stage. We are fully conscious that the said judgment delivered by the learned Division Bench of this Court, which is still in the field as it was admittedly never challenged by the appellant before the Hon’ble Supreme Court, has a binding effect on us. As such, no further findings are required to be given on the issues that have been conclusively decided earlier by the learned Division Bench in a meticulous and scholastic manner. It, therefore, follows that the learned single Judge of this Court was competent to entertain the respondent’s application under Section 20 of the Act ; to refer the matter to the arbitrator ; to entertain the Award rendered by the arbitrator ; to hear and decide the objections to the Award in view of Section 31 of the Act ; and, to pass a decree in pursuance thereof in view of the explicit provision of Section 31(4) of the Act. The learned Additional Advocate General Balochistan was unable to convince us or explain as to how the Award and the impugned order and decree could be deemed to be void or without jurisdiction in view of the above. It is, therefore, held that the Award and the impugned order and decree are not void or without jurisdiction.
13. With respect to the learned Additional Advocate General Balochistan, his contention that the principle that limitation does not run against void orders, judgments and decrees, is fully applicable in this case, even otherwise has no force in view of the recent pronouncement by the Hon’ble Supreme Court in the case of Messrs Blue Star Spinning Mills Ltd. V/S Collector of Sales Tax and others, 2013 SCMR 587. In the said authority, it was held by their lordships that the rule that no limitation runs against a void order is not an inflexible rule ; and, a party cannot sleep over to challenge such an order and it is bound to do so within the stipulated / prescribed period of limitation from the date of knowledge before the proper forum in appropriate proceedings.
14. As we have held that the Award and the impugned order and decree are not void, heavy burden lies on the appellant to satisfy us that the appellant is entitled for condonation of the delay, and for such purpose, the appellant has an additional burden to explain the delay of each and every day. The record shows that the impugned order was passed on 20.05.2010 ; the impugned decree was prepared on 09.07.2010 ; the appellant applied for certified copies of the impugned order and decree on 15.09.2010, which were made ready and were delivered to the appellant on 16.09.2010 ; and, the appeal was presented on 12.10.2010. The 20 days’ prescribed period of limitation under Article 151 of the Limitation Act, 1908, for filing the appeal by the appellant expired on 29.07.2010, however due to the summer vacations of this Court, it stood extended till the first opening day of this Court after summer vacations, which was 09.08.2010 as per Notification dated 22.04.2010 issued in this behalf by this Court. Thus, the last day for filing the appeal was 09.08.2010. It is to be noted that when the appellant applied on 15.09.2010 for the certified copies of the impugned order and decree, the prescribed period of limitation for filing the appeal had already expired. It is also to be noted that instead of filing the appeal promptly after receiving the certified copies on 16.09.2010, the appeal was filed on 12.10.2010 after a long delay of 26 days.
15. In order to seek the concession of condonation and the discretion of this Court in this behalf, the appellant is duty-bound to explain the delay of each and every day from 09.08.2010 till 12.10.2010. The only explanation given by the appellant is that the matter was reserved for judgment by the learned single Judge on 20.05.2010 when no order was passed or announced in the presence of the Assistant Advocate General, but later on he came to know that the impugned order had been passed on 20.05.2010 ; and, as soon as he came to know about this fact, he applied for certified copies and filed the instant appeal along with his personal affidavit stating therein that the impugned order was not passed in his presence. This so-called ground can hardly be treated as a valid or justifiable explanation and it cannot be accepted for many reasons ; firstly, there was no reason or occasion for the learned single Judge to reserve the matter on 20.05.2010 and then to pass the order at a later stage with the said date as the date of the order ; secondly, the tenor of the impugned order does not indicate that the matter was heard and reserved on one date and reasons were recorded or the order was passed on a subsequent date ; thirdly, it must be presumed that the impugned order, being a judicial order, was passed on the date which is mentioned therein ; and lastly, the record does not support the assertion of the appellant in this context.
16. We have noticed that in the appeal, the application for condoning the delay and the personal affidavit of the Assistant Advocate General, the appellant has failed to disclose the exact date of knowledge when the Assistant Advocate General purportedly came to know about the impugned order, and also the source through which the said fact came to his knowledge. Assertions in an extremely vague and evasive manner have been made in the appeal and in the personal affidavit of the Assistant Advocate General, as it has been stated at one place that the impugned order came to his knowledge “recently”, while at the other, it has been stated that “later on” he came to know about the impugned order. If the contention of the appellant is accepted and the delay is condoned from 09.08.2010 to 16.09.2010, even then there is an unexplained delay of 26 days from 16.09.2010 when certified copies were received by the appellant. This aspect became more important when we carefully examined the record which revealed that C.M.A. No.1924/2010 for condoning the delay bears the date 27.09.2010, but the affidavit filed in support thereof was sworn on 12.10.2010, and this application was also filed on 12.10.2010 along with the appeal. The appellant ought to have shown convincing and very strong and solid grounds for condoning the long delay of more than two months from 09.08.2010 to 12.10.2010, and it was also required to explain the delay of each and every day, but it has miserably failed to do so. Such a long and unexplained delay cannot be condoned on such vague and flimsy grounds, especially in view of Messrs Blue Star Spinning Mills Ltd. (supra), and also as a valuable right has accrued in favour of the respondent upon passing of the impugned order and decree.
17. Regarding the contention of the learned Additional Advocate General Balochistan that delay has been condoned by the Superior Courts in cases where valuable rights of the Government were involved, we would like to refer to some authorities of the Hon’ble Supreme Court and reported cases of this Court and the Lahore High Court. In the case of Muhammad Bashir & another V/S Province of Punjab, 2003 SCMR 83, the Hon’ble Supreme Court was pleased to hold that “We are in no manner of doubt in reiterating and reaffirming the well-settled principle that public functionaries are not entitled to any preferential treatment in the matter of condonation of delay and they are to be treated on equal footing with an ordinary litigant. There is also no cavil with the proposition that with the passage of time a valuable right accrues in favour of the opposite party, which should not be slightly disturbed and destroyed”. It was further held that the object of a Superior Court, while exercising its discretionary jurisdiction, is to foster the ends of justice, preserve the rights of parties and to right a wrong. In Imtiaz Ali V/S Atta Muhammad and another, PLD 2008 Supreme Court 462, it was held by the Hon’ble Supreme Court that the appeal, having been filed after one day of the period of limitation, had created valuable right in favour of the respondents, and no sufficient cause was found for filing the appeal beyond the period of limitation. The delay of only one day was not condoned by the Hon’ble Supreme Court in the cited case. In Lahore Development Authority V/S Messer Sea Hawk International (Pvt.) Ltd., Lahore, 2003 CLC 269, it was held by the Lahore High Court that it is a settled principle of law that the Government statutory bodies are at par with the general public. In Pakistan Handicrafts, Sindh Small Industries Corporation, Government of Sindh V/S Pakistan Industrial Development Corporation (Pvt.) Ltd. and two others, 2010 CLC 323, it was held by this Court that limitation is not a technicality because it confers very valuable rights as held by the Hon’ble Supreme Court in the case of Imtiaz Ali (supra).
18. Now we shall discuss the case of Government of Balochistan through Secretary Member, Board of Revenue and another (supra) relied upon by the learned Additional Advocate General Balochistan. In the cited authority, the reason for seeking condonation of delay was stated to be non-cooperation between various Government functionaries, which was depreciated by the Hon’ble Supreme Court, but the delay was condoned in the interest of justice in view of the peculiar circumstances of the case, and also as the impugned order was found to be void. The peculiar circumstances were that no cooperation was extended to the Advocate-on-Record for filing the petition within time before the Hon’ble Supreme Court ; and, despite repeated enquiries / requests by the Advocate-on-Record to the concerned authorities, the complete record of the case required to be submitted before the Hon’ble Supreme Court was not provided, with the result that the petition became time-barred. It was observed by the Hon’ble Supreme Court that if the Advocate-on-Record had not raised the plea that the impugned order was void, there would have been a great difficulty for the Government to argue its case on merits before the Hon’ble Supreme Court. In our humble opinion, the above authority shall not apply to the present case as the facts thereof and the facts of the case in hand are clearly distinguishable ; as the Award and the impugned order and decree are not void in the instant case ; and, also as it is not the case of the appellant that there was any non-cooperation between its functionaries. The reason given by the appellant for the long delay of more than two months without explaining the delay of each day, is entirely different and quite unusual and surprising, which has already been rejected by us. It would not be out of place to mention here that in the cited authority also the Hon’ble Supreme Court was pleased to maintain the consistent and well-settled view that “This Court has time and again in clear terms expressed in its judicial pronouncements that State and subject both are at par in the eye of law, therefore, Government agencies could not be treated preferentially.” In view of the above, the cited authority relied upon by the learned Additional Advocate General Balochistan, is of no help to the appellant.
19. After hearing the learned counsel, examining the record and going through the law cited at the Bar, it can be safely concluded that the grounds urged in this appeal are barred under the principle of res judicata ; High Court has inherent power to exercise its discretion for condoning the delay, provided the merits of the case so demands ; delay can be condoned only when sufficient and strong cause is shown to the Court explaining the delay of each and every day ; for exercising such discretion, the Court is required to look into the facts and circumstances of each case, which may vary in each case ; it is a well-settled principle that the Government and public functionaries / agencies are not entitled to any preferential treatment in the matter of condonation of delay and they are to be treated on equal footing with an ordinary litigant ; and, with the passage of time, valuable rights accrue in favour of the opposite party which should not be disturbed and destroyed.
20. In view of the above discussion, C.M.A. No.1924/2010 filed by the appellant for condoning the delay is liable to be dismissed, and upon its dismissal, this appeal and C.M.A. No.1926/2010 for suspension of the impugned order and decree must also fail.
21. Foregoing are the reasons of the short order announced by us on 21.05.2014, whereby this appeal and the listed applications were dismissed with no order as to costs.
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