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1993 C L C 692

 

[Lahore]

 

Before Mian Ghulam Ahmad, J

 

Mst. GHULAM FATIMA ‑‑‑Appellant

 

versus

 

CHIEF ADMINISTRATOR OF AUQAF PUNJAB

and another‑‑‑Respondents ‘

 

FA.O. No. 49 of 1982, heard on 9th December, 1992.

 

 

Zafar Pasha for Appellant.

 

Muhammad Rafiq Arif for Respondents.

 

Date of hearing: 9th December, 1992.

 

JUDGMENT

 

This FA.O. is directed against the order dated 16‑3‑1982, passed by Mian Jahangir Pervaiz, Additional District Judge, Lahore, refusing to restore a petition filed on 6‑1‑1979 under section 11, Auqaf (Federal Control) Act, 1976, challenging the validity of a notification issued on 4‑12‑1978 by the Administrator‑General, Auqaf, taking over, under section 7 of the Act, a site measuring 1 Kanal and 18 Marlas, described as graveyard, situate in Mohallah Muhammad Nagar, Amir Bakhsh Road, Ghari Shahu, Lahore.

 

2. The petition dated 4‑1‑1979, entertained on 6‑1‑1979 (submitted under section 11 of the Act) had been dismissed on 27‑7‑1981, as Ghulam Fatima petitioner or her counsel had failed to turn up. The application for restoration of this petition was made on 4‑8‑1981, but the same was rejected on 16‑3‑1982. Recession of this order and revival of the original petition under section 11 of the Act is sought, and in so doing the learned counsel maintains that neither had the petition dated 4‑1‑1979, dismissed on 27‑7‑1981, been decided on merits, nor is the order dated 16‑3‑1982, rejecting the petitioner’s application dated 4‑8‑1988 under section 151, C.P.C. a speaking order. The learned Additional District Judge had actually declined to apply his mind to the controversy and had hastened to dismiss the application under section 151, C.P.C., by only observing, that the main petition under section 11 of the Act, having earlier on 27‑7‑1981 been dismissed on merits, the same could not be restored in the manner asked for by the appellant.

 

3. Learned counsel for the respondent has drawn the attention of the Court to provisions of section 11 of the Act, in maintaining that the petition dated 4‑4‑1979, under the said section, had not been made within time, thirty days, as provided therein, excluding applicability of general provisions of the Limitation Act, adding that the main petition dated 4‑1‑1979 had been dismissed on 27‑7‑1981 by the learned Additional District Judge, not just for its non‑prosecution, but it had met failure on account if its being time‑barred, as is stated in para. 2 of the brief order. .

 

4. I am afraid, I cannot subscribe to this view. Had the petitioner or her counsel been in attendance, an effort could have been made to satisfy the Court that the petition had actually been filed within time and then the position would have been different. One‑sided view put forth by the learned counsel for the respondent was unilaterally adopted by the learned Additional District Judge, who must be taken to have only passingly remarked that the petition was barred by time, although in absence of the petitioner, the petition was required to have been dismissed in default, and it was accordingly done. In no manner it could be said that it was disposal of the petition on merits. The material controversy involved was whether or not the land acquired by the Auqaf Department was a Waqf property, and this controversy was not resolved, even in an ex parte fashion, by the learned Additional District Judge, by adverting to it even indirectly. The petitioner having ma with only a technical knockout had prayed for restoration of her main petition (under section 11 of the Act) by invoking the inherent power of the Court under section 151, C.P.C. This application also was not disposed of by affording to the petitioner an adequate opportunity of hearing, but was dismissed with the remarks that the previous petition or the main petition having been decided on merits, the same could not be revived.

 

5. Learned counsel for the respondent convasses the view that the petition under section 11, having been disposed of on merits, the petitioner should have filed an appeal in the High Court, adding that the instant appeal must be treated to be badly barred by the? aw of Limitation, having been preferred on 29‑3‑1982, seeking to restore the petition dated 4‑1‑1979 (under section 11 of the Act) dismissed on 27‑7‑1981. It is pointed out that the learned counsel appearing for the appellant was actually conscious of this patent defect and had, therefore, submitted an application under section 5 of the Limitation Act, in an endeavour to have the palpable delay condoned. This is said to have been done by the appellant’s counsel, on having been sounded in that behalf by the learned Judge of this Court, who had entertained the appeal on 29‑3‑1982. Learned counsel for the appellant, however, does not accept this position that he had not come to this Court within time, stating that, only as a measure of abundant caution, he had submitted the application under section 5/14 of the. Limitation Act, a day or two afterwards (on 30‑3‑1982). The learned counsel has relied on Muhammad Ishaq v. Chief Administrator Auqaf Punjab (PLD 1977 SC 639), a Full Bench ruling. It has been laid down that mere printing of notification in the Gazette is not sufficient to constitute `publication’, and publication as envisaged by the provisions in question (it was section 7 of the law then prevalent‑‑West Pakistan Waqf Properties Ordinance, 1961), would take effect only when the notification is made available to the general public. In the reported case the notification was printed on 30‑9‑1969 but it was received in Book Depot of the Government Press on 23‑10‑1969, and the limitation period was not counted from the date of issuance of the notification (30‑9‑1969). In a case of this nature, when a poor illiterate person is involved, with no exposure to news media even he cannot be expected to have become aware of what had been printed in the Government Gazette. Instances are not lacking, when even publication or printing of the notification was made, long after the orders were made, or the notification intended to be published was signed by the concerned authority. Members of the public are, after all not to be penalised for their general ignorance. One has not to fumble about or go deep down to understand the plain philosophy of Law of Limitation. Purpose is to help the vigilant and not the indolent. A helping hand may not be extended to a litigant having gone into deep slumber, on having become forgetful of his rights. Concerned person has, however, to be made aware of the invasion on his? interests, and such awareness has to be? ascertained as a matter of fact.

?

6. Learned counsel for the respondent has drawn the attention of the Court to the contents of para. 4 of the petition dated 4‑1‑1979 and the counter petition dated 13‑5‑1981. The appellant had admitted having received the notice issued by the Manager Auqaf Department, Lahore, on 23‑12‑1978. The process might not have been accompanied, by a copy of the notification; but even if a copy was handed over, alongwith the notice, to the rustic lady, stated to be widow of a care‑taker of the graveyard, she was not supposed to have traced back the events (taking over the property by the Auqaf Department) to the date of issuance of the notification. She must be taken to have acted with vigilance and diligence, in approaching an advocate during the winter vacation, and getting the petition under section 11 drafted on 4‑1‑1979. Limitation period in this case will have to be computed from 23‑12‑1978 onwards; and the main petition, as such, had been filed within time. When the. learned Additional District Judge held otherwise and dismissed the petition in default, as also be reason of its being time‑barred, on 27‑7‑1981, he had not passed a just, proper and lawful order; and the petitioner had every justification to ask for revival of the petition. This she did by filing an application under section 151, C.P.C., with promptness, on 4‑8‑1981. She pursued a permissible course; and when she failed in the said pursuit (on 16‑3‑1982), she again made haste to prefer the present appeal on 28‑3‑1982.

 

7. The only sensible interpretation that may be put. on the relevant provisions (section 11 of the Act) is the one spelt out in the reported case (PLD 1977 SC 639); and if there is a pronouncement to the contrary, compliance with the same ought not to be insisted upon, for such a stringency in interpreting a procedural provision of Law would frustrate ultimate ends of justice, whereas the Courts function and the law of the land is there to ensure dispensation of justice, and superior Courts have, therefore, always laid emphasis on adjudication of disputes on merits and not on the strength of sheer technicalities.

 

8. In view of the foregoing discussion, I find it difficult to endorse the orders dated 16‑3‑1982 and 27‑7‑1981, passed by the learned Additional District Judge, Lahore. I would set aside the same, and accept the appeal, although with no orders as to costs. The matter shall be re‑decided on merits, and for the purpose it is remitted to the learned Additional District Judge, Lahore, before whom it shall be put up on 3‑1‑1993. He shall dispose it of himself or shall entrust it to an Additional District Judge for decision. Since the impugned notification was issued on as back as 4‑12‑1978, i.e. 14 years ago, it will be in the fitness of things that the petition under the Auqaf Act be disposed of at an early date, by 31‑7‑1993 at the latest. .

AA./G/112/L         Appeal accepted.

 

 

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