P L D 2007 Karachi 374
Before Rahmat Hussain Jafferi and Maqbool Baqar, JJ
Hafiz ABDUL KHALIQUE SOOMRO and others—Petitioners
GOVERNMENT OF SINDH through Secretary, Irrigation and Power Department, Karachi and others—Respondents
Constitutional Petitions Nos. D-940, D-961, D-974, D-976 of 2002, D-212 of 2003, decided on 22nd March, 2007.
Bhajandas Tejwani for Petitioners.
Habib Ahmed, Asstt.A.-G., Sindh for Respondents.
Date of hearing: 9th March, 2007.
RAHMAT HUSSAIN JAFFERI, J.—This order will dispose of review applications dated 9-8-2004 and applications for condoning the delay, of filing such application filed in the Constitutional Petitions Nos.D-940, 961, .974, 976 of 2002 and 212 of 2003, as common questions of facts and law are involved.
On 9-8-2004 the petitioner filed applications under Order XLVII, rule 1, read with section 151, C.P.C. for review of common judgment dated 11-5-2004 passed in the above constitutional petitions. Pending adjudication of the said applications, on 7-2-2005 the petitioner filed applications under section 5 of the Limitation Act for condoning the delay in filing the review applications. The learned A.A.-G. has seriously raised objection on the point of limitation, therefore, without going into the facts and merits of the case we have heard advocate for the petitioner and A.A.-G’. on the preliminary objection.
The learned advocate for the petitioner has argued that in the constitutional petition Limitation Act is not applicable and even if the same is applicable then the application will be governed by Article 173 of the Limitation Act; that the decision should be given on merits; that the parties should not be non-suited for technical reason; that the delay has been caused due to misconception of law as to whether Article 173 or 162 of Limitation Act will be applicable and that the party should not be made to suffer due to wrong advice of the advocate.
Conversely, the learned A.A.-G, has stated that the High Court in exercise of its original jurisdiction entertains the constitutional petition and decides the same, therefore, for reviewing the judgment. Article 162 of the Limitation Act will be applicable which provides 20 days time for. filing the review application; that the time will run from the date of order or judgment; that Article 173 of the Limitation Act will not be applicable in the case in view of specific Article 162 of the said Act; that the allegation of wrong advice of the advocate to the petitioner as misconception of law has not been supported by the affidavit of advocate; that the applicant has not furnished sufficient cause to condone the delay.
At the outset, it is pointed out that there are two stages in dealing with the constitutional petition. There is no cavil to the proposition that the High Court in exercise of its original jurisdiction entertains the constitutional petition. In exercise of such jurisdiction, the High Court decides criminal, civil and other matters. In the petitions rights of civil nature are involved, therefore, the discussion will be keeping in view such rights.
The first stage of invoking the jurisdiction of the High Court in civil matter is the filing of petition. For that purpose petition will be governed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The Constitution does not provide any limitation for filing the petition as fundamental rights can be enforced at any time. Nevertheless, this does not mean that delay or laches on the part of the parties cannot be considered, but it is settled that the constitutional petition has to be filed within a reasonable time, however, the delay is not an absolute bar:–
(a) Where the delay is explained.
(b) In a petition for prohibition, where lack of jurisdiction is patent.
(c) Where an order, which professed to be final, was, in reality, provisional, or subject to revision, delay cannot be computed until the final order was made.
(d) Delay cannot be a bar where Government has been holding out hopes to the petitioner from time to time.
(e) Where the impugned order becomes vulnerable if it is continued beyond a temporary period, e.g., an order of requisition of a premises.
On the other hand, the Court would be more inclined to refuse relief under Article 199 on the ground of laches where, on account of the delay:–
(a) The opposite party has been induced to alter his position.
(b) Other interests have come into being.
(c) Where a suit, if brought on the same cause of action, would have been barred by limitation.
The consideration upon which the Court refuses to exercise its discretion where the petition is delayed is not limitation but matters relating to conduct of parties; and change in situation. The proper standard, however, seems to be whether in the circumstances of the case, the time that has elapsed can be said to be reasonable; or there is proper explanation for the delay, therefore, the reasonableness of the delay in filing a writ petition is to be assessed by the Court having regard to the facts and circumstances of each case. Thus, the refusal to entertain belated causes is only a rule of discretion, not of law. Reference is invited to Deddhan v. State of Maharashtra (AIR 1974 SC 259 (265).
It is pointed out that the question was raised before the Hon’ble Supreme Court of Pakistan in case of Pakistan Post Office v. Settlement Commissioner 1987 SCMR 1119, the Hon’ble Supreme Court did not decide the said question, but kept it pending with observation that it might be decided in a proper case apparently at later stage. The relevant portion of the said observation is as under:—
“There is no law of limitation which may directly apply to the institution of writ petitions and their dismissal on ground of limitation————–?????????
Before parting with this judgment it needs to be observed that although the question of applicability of the Article 181 of the Limitation Act to the filing of writ petition has not been argued at the bar, it might nevertheless require examination in a proper case. It has been held by the Court in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1, that such proceedings before the High Court are of civil nature and C.P.C. applies except when excluded. Whether similar argument cannot be raised regarding limitation might need examination.”
It was further observed that there is no law of limitation which may directly apply to the institution of writ petition, however, in the case of S.A. Jameel v. Secretary to the Government of Punjab, Cooperative Department 2005 SCMR 126 it was observed that if the High Court finds that the party invoking the constitutional jurisdiction is guilty of contumacious lethargy, inaction, laxity or gross negligence in the prosecution of a cause of fundamental right, it would be justified in non-suiting such person on the premises of laches. Thus, the Hon’ble Supreme Court of Pakistan instead of applying Limitation Act had applied the conduct of the parties while considering the laches and delay. The Hon’ble Supreme Court of Pakistan while giving distinction between the limitation and delay or laches observe as under:
“Reverting to the question of laches not raised by the respondents but pointed out by the High Court of its own, it may be pertinent to observe that there is a marked distinction between delay in filing of a legal proceedings within the period specified under the provisions of Limitation Act, 1908 and undue time consumed by a party in filing of constitutional petition, for which no statutory period is prescribed under the law. In the former case, delay of each day is to be explained by furnishing sufficient cause of enlargement of time and condonation of delay within the contemplation of section 5 of the Limitation Act whereas in the later case lapse of time or the question of laches is to be examined in equitable principles for the reason that the exercise of constitutional jurisdiction is always discretionary with the Court and the relief so granted is always in the nature of equitable relief. In case the Court come to a conclusion that equity leans in favour of the petitioner, the Court must exercise discretion in favour of such party. However, if the Court finds that the party invoking writ jurisdiction of the high Court is guilty of contumacious lethargy, inaction, laxity or gross negligence in the prosecution or a cause for enforcement of a right, the Court would be justified in non-suiting such person on the premise of laches. Indeed the issue of delay or laches is to be considered with reference to the facts of each case and no hard and fast rule can be laid down in this behalf. It was aptly observed by Ajmal Mian, C.J. (as his Lordships then was) in Ardeshir Cowasjee v. Karachi Building Control Authority (KMC) Karachi 1999 SCMR 2883 that delay/laches of several years can be overlooked in a constitutional petition if the cause of the case and dictates of justice so warrant or the delay/laches of a month may be fatal to a constitutional petition.”
From the above decision, it appears that the provisions of Limitation Act do not apply to the constitutional petition. Thus, the lapse of time that would have been considered as constituting delay, the proper view seems to be that no hard and fast rule can be laid down in the matter and each case should be decided according to its circumstances, without adhering to any fixed period, long or short.
The second stage of the petition starts after filing the petition which deals with the procedure for disposing of the .petition. Without going into the elementary discussion on the subject the Hon’ble Supreme Court of Pakistan in the case of Hussain Bakhsh v. Settlement Commissioner Rawalpindi PLD 1970 SC 1 dealt with the subject and observed at page 7 as under:—
“The writ jurisdiction under Article 98 of the Constitution, as already stated, is an original jurisdiction. Obviously, the jurisdiction under that Article pertains to civil as well as other matters. At the moment, I shall consider the nature of the proceeding arising out of a writ petition relating to a civil matter, as in the instant case. The proceeding taken for the enforcement of a civil right is a civil proceeding whatever may be the source of the Court’s jurisdiction invoked for enforcement of such a right. According to Stroud’s Judicial Dictionary `Civil Proceeding’ is a process for recovery of individual right or redress of individual wrong, inclusive, in its proper legal sense, of suits by the Crown see Bradlough v. Clarks 8 AC 354. Whether a proceeding is civil or not depends on the nature of the subject-matter of the proceeding and its object, and not on the mode adopted or the forum provided for the enforcement of the right. A proceeding which deals with a right of a civil nature does not cease to be so merely because the right is sought to be enforced by having recourse to the writ jurisdiction. Judged from these aspects, a proceeding under Article 98 of the Constitution relating to a civil matter is a civil proceeding, although the High Court’s jurisdiction in such a proceeding is constitutional jurisdiction of an original kind. A civil proceeding in a Court of Civil jurisdiction is governed by the Code of Civil Procedure (see its preamble). By virtue of section 117 of the Code, a civil proceeding in a High Court is also governed by the provisions of the Code other than the provisions which are specially excluded. A proceeding under Article 98 of the Constitution concerning a civil matter being a civil proceeding relating to the High Court’s original civil jurisdiction.”
Thus, a Constitution petition dealing with civil rights is of civil nature and C.P.C. applies except excluded. It was further observed at page 9 as under:
“The result, therefore, is that such appeals which were hitherto competent under sections 109 and 110 of the Code of Civil Procedure are no more allowed by the Code. That being so, the requirement of clause (b) of section 114 of the Code is satisfied in the case of an order made by a High Court in its writ jurisdiction in a civil matter. A review of such an order is, therefore, competent under clause (b) of section 114 of the Code of Civil Procedure. If this view be not correct, then, the High Court will be completely bereft of the power of review even in respect of a decree or order made under the provisions of the Code for the simple reason that, for the purpose of appeal, such a decree or order and an order made by a High Court in its writ jurisdiction in a civil matter, in view of Article 58 of the Constitution, stands exactly on the same footing. Thus, any view contrary to the view held as above will give rise to an absurd situation. The view taken by me as regards power of review also finds support from the dictum laid down by the House of Lords in the case of National Telephone Company Ltd. v. Postmaster-General 1913 AC 546. The dictum laid down in that cafe, in the word of Viscount Haldane, is as follows:—
“When a question is stated to be referred to an established Court without more it in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right to appeal from its decisions likewise attaches”.
As the High Court has been found to have power under clause (b) of section 114 of the Code of Civil Procedure to review an order made in its writ jurisdiction in a civil matter, the appeal succeeds.”
The above observations have been followed by the Hon’ble Supreme Court in another case of Pakistan Post Office (supra). Thus, in procedural matters the petition dealing with civil right or civil nature, the provisions of Civil Procedure Code would be applicable as far as they are applicable except excluded. In such a situation the provisions of Civil Procedure Code are to be taken and construed together with the Limitation Act because both the statutes are “pari materia”.
It is well settled that the statutes must be read as a whole as words are to be understood in their context. Extension of this rule of context permits reference to other statutes in pari materia i.e. statutes dealing with the same subject-matter or forming part of the same system.
The meaning of the phrase “pari materia” has been explained in an American case United Society v. Eagle Bank (1829) 7 Connecticut 457 at page 470 in the following words:–
“Statutes are in pari materia which relate to the same person or thing, or to the same class of persons or things. The word “par” must not be confounded with the word “Simlis”. It is used in opposition to it intimating not likeness merely but identity. It is a phrase applicable to public statutes or general laws made at different times and in reference to the same subject.”
The pari materia statutes have been defined by Maxwell on the Interpretation of Statutes, Twelfth Edition at page 66 as under:–
“Statutes are said to be in pari materia when they deal with the same person or thing or class: it is not enough that they deal with a similar subject-matter———-???????????
Lord Mansfield C.J. stated that rule as to the exposition of one Act by the language of another in this way: “Where there are different statutes in pari materia though made at different times, or even expired, and not referring to each other, they shall be taken and construed together, as one system, and as explanatory of each other.”
The Supreme Court of India in the case of Vidyacharan Shukla v. Khubchand Baghel AIR 1964 Supreme Court 1099 at page 1107 while dealing with the provisions of Civil Procedure Code and Limitation Act, treated them as pari materia and after relying upon Full Bench Decision of Madras High Court in the case of Kandaswami Pillai v. Kannappa Chetty AIR 1952 Madras 186 observed as under:
“It is well established that the Limitation Act, and the Code are to be read together, because both are statutes relating to procedure and they are in pari materia and, therefore, to be taken and construed together as one system as explanatory of each other.”
Thus, in procedural matter where the provisions of Civil Procedure Code are applicable then those provisions are to be taken and construed together with the provisions of Limitation Act as one system and explanatory of each other.
As the petition was dismissed in the exercise of original jurisdiction of this Court, therefore, for reviewing the judgment Article 162 of the Limitation Act will be applicable which provides that a review application can be filed within 20 days from the date of the order or judgment. Apparently the review applications have been filed beyond the period of limitation, hence, the same are time barred.
The next question for consideration is whether or not delay can be condoned. It is pointed out that the constitutional jurisdiction is intended to foster justice, right a wrong, eliminates chances of perpetual illegality subject to constitutional limitations, which is completely discretionary in nature. Keeping in view the basic principles of constitutional jurisdiction, all further proceedings are required to be examined on the touchstone of said principles to achieve the objective of the Constitution. At the same time, the discretion has to be exercised in consonance with the well-known and well-understood principles of law and principles laid down by the Superior Courts.
For the purpose of condoning the delay we have to examine the cause shown by the petitioner. If the delay is sufficiently explained, then it can be condoned otherwise not.
Learned advocate for the petitioner has filed applications under section 5 of the Limitation Act for condoning the delay. In such a situation, the petitioner is required to explain the delay of each day by furnishing sufficient cause for enlargement of time and condonation of delay within the meaning of section 5 of the Limitation Act.
Keeping in view the basic principles of constitutional jurisdiction we have examined applications and their supporting affidavits. The condonation of delay has been sought on the ground of misconception of law. The general rule is that ignorance of law or misconception of law is not a valid ground for condoning the delay, however, in a very special case it can be considered on furnishing sufficient cause. Reference is invited to Sitaram Charan v. M.N. Nagrashana AIR 1960 SC 260.
In this connection, it is pointed out that the application under section 5 of Limitation Act is supported by the affidavit of the petitioner Hafiz Abdul Khalique Soomro. The ground taken in the application for condoning the delay is legal ground. The petitioner might have been advised by his advocate. There is no affidavit filed by the advocate to support the above ground. However, the law on the subject is very clear, as the Hon’ble Supreme Court of Pakistan in the case of Hussain Bukhsh v. Settlement Commissioner, Rawalpindi PLD 1970 SC 1 clearly observed that the High Court in its original jurisdiction entertains the writ petitions. Article 162 of the Limitation Act deals with the review of judgment by High Court in exercise of its original jurisdiction. Thus, there is no ambiguity in the law, if both are read together. Article 173 deals with the review of judgment except in the cases provided by Articles 161 and 162 of the imitation Act. Thus, the law is settled, but the advocate did not conduct himself diligently with care and elution. The mistake can be condoned, if the same is bona fide and made in spite of due care and attention, but the mistake was result of negligence.
The Hon’ble Supreme Court of Pakistan and Privy Council in the cases of (1) Sultan Jan Khan v. Islamic Republic of Pakistan 1980 SCMR 964, (2) Khalid Farooq v. Hakim Nazar Muhammad 1979 SCMR 52 and (3) Brij Indar Singh v. Lala Kanshi Ram AIR 1917 Privy Council 156 observed that mere mistake or ignorance of law is not per se sufficient reason for condoning the delay. It was observed that the petitioner was required to place material or evidence before the Court to show the sufficient cause in the case; that the petitioner had taken the plea of misconception of law, apparently the same arose due to advice of a counsel, therefore, petitioner was required to file affidavit of the said counsel and in the absence of the affidavit of such counsel the delay cannot be condoned. The Hon’ble Supreme Court of Pakistan in the case of Ali Khan v. Shah Zaman 1980 SCMR 332 further observed that where the counsel, who was alleged to have given wrong advice, did not submit an affidavit in that respect before the Court, the delay cannot be condoned.
Following the rules and principles laid down by the Hon’ble Supreme Court the case of the petitioner does not come or fall within very special case where ignorance of law or misconception of law can be considered as a sufficient cause for condoning the delay.
In the light of what has been discussed above the applications under section 5 of the Limitation Act are dismissed. Consequently, the review applications are also dismissed being time-barred.
Above are the reasons of our short order dated 9-3-2007 by which we had dismissed the review applications along with applications under section 5 of the Limitation Act.
M.B.A./A-49/K Applications dismissed.