2008 C L C 1662
2008 C L C 1662
[Supreme Court (AJ&K)]
Before Muhammad Reaz Akhtar Chaudhry, C.J. and Khawaja Shahad Ahmad, J
TAHIR MAHMOOD KHAN and 13 others---Appellants
Versus
AZAD GOVERNMENT and 3 others----Respondents
Civil Appeal No.29 of 2005, decided on 21st November, 2006.
Limitation Act (IX of 1908)---
---Ss. 3 & 28---Laches, doctrine of---Application ---In applying principles of laches, it was not only the delay which had to be considered, but it was in fact the unexplained delay which had been considered fatal to attract mischief of laches----If no satisfactory explanation was furnished by the party the principle of laches could definitely be pressed into service and the party who slept over his/her right had to suffer, in that case even a delay of only few days could be fatal---Application of doctrine of laches could only be resorted to where in the estimation of the court it would be unjust to allow the remedy
either because of the conduct of the party which amounted to waiver or by his conduct and negligence he had put the other party in a situation of disadvantage---Was not the time only which had to be considered to attract the principle of laches, it was only absence of reasonable explanation which attracted application of laches---If the party was denied remedy due to procrastination by the subordinate courts or Tribunals, the superior courts could not out suit a party simply because the matter was pending for decades.
Nusrat Fatima v. Azad Government of the State of Jammu and Kashmir and 2 others PLD 1985 SC (AJ&K) 93; Nazar Hussain and 4 others v. Mst. Azmat Bibi and 9 others 2004 PCr.LJ 880; Mahboob Khan v. Fazal Elahi 1995 PCr.LJ 1778; Azad Government of the State of Jammu and Kashmir and others v. Haji Summandar Khan 1995 MLD 1350; Abdul Qayyum Khan v. The State PLD 1968 Pesh. 6; Syed Kazim Raza v. Government of Sindh and others PLD 1976 Kar. 119; Amanullah Khan v. Muhammad Hassan PLD 1994 Pesh. 211; Khan Muhammad Qureshi v. Karachi Port Trust PLD 1994 Kar. 140 and Pakistan Post Office v. Settlement Commissioner 1987 SCMR 1119 ref.
Ch. Muhammad Ibrahim Zia for Appellants.
Raja Mumtaz Hussain Kiani, Addl. A.-G. and M. Noorullah Qureshi for Respondents.
Date of hearing: 31st October, 2006.
JUDGMENT
KHAWAJA SHAHAD AHMAD, J.--- This appeal, with leave of the Court, is directed ,against the order of the High Court dated 23-10-2002, whereby the learned Judge of the High Court dismissed the writ petition filed by the appellants, herein on the ground of laches. In the very outset it may be mentioned that the learned Judge has not adverted to the merits of the case.
2. Relevant facts giving rise to the controversy in hand are that through Award No.4/82 dated 28-1-1982 and No.24/82, dated 8-9-1982 land measuring 11 Kanals, 3 Marlas belonging to the appellants, herein, was acquired for public purpose by the Azad Jammu and Kashmir Government under the acquisition law in force at the relevant time which provided maximum compensation of Rs.20,000 per Kanal. Dissatisfied with the award the appellants, as was provided by the relevant law, filed appeal before the Revenue Commissioner, who by his first order dated 22-5-1984 dismissed the appeal of the appellants. After having repeated applications before the concerned authorities appellants finally filed two writ petitions bearing Nos. 73/94 and 74/94 on 8-5-1994 in the High Court which were accepted by the learned Chief Justice of the time by his order dated 9-5-1996, wherein after enumerating the facts in detail all the orders passed by the Revenue Commissioner and other directed the Revenue Commissioner to decide the review petition afresh in accordance with law. An attested copy of the judgment of the Court in the first round of litigation finds place at pages 19 to 23 of the paper book.
3. In compliance with the direction of the learned Chief Justice of the High Court the Revenue Commissioner of the time after hearing the appellants dismissed the review petition on 2-8-2000 and the appellants having acquired another right filed review petition before the Commissioner which met the same fate on 4-12-2001 which was again challenged through Writ Petition No.69 of 2002 in the High Court. The learned Judge seized with the matter after referring to some details on facts and relying on a case of this Court reported as Nusrat Fatima v. Azad Government of the State of Jammu and Kashmir and 2 others PLD 1985 SC (AJ&K) 93, dismissed the writ petition in limine as in the estimation of the learned Judge the case of the appellants was badly hit by laches, thus the present appeal by leave.
4. We have heard the learned counsel for the parties and gone through the record of the case. Without diving deep into the facts of the controversy, we find that the appellants have been non-suited by the High Court without adverting to the exact or at least proximate legal position. The judgment referred to by the learned Judge in the High Court no doubt lays down that the delay which under the given circumstances is considered sufficient to prevent a party from obtaining relief from the Court, this judgment of the Supreme Court itself provides that the circumstances which also include the facts of the case ought to be looked into before applying the principle of laches which, in our estimation, must not ordinary be applied and the controversy and the disputes relating to the property must be decided on merits and non-suiting the party on technical ground should be avoided as nearly as possible. Some of the facts of the present controversy which escaped attention of the learned Judge of the High Court are that; the appellants have been pursuing their right from 1982 till 2002. They could not get their case decided on merit. Their first appeal before the Revenue Commissioner, which was filed immediately after acquisition order, appears to have been decided on 22-5-1984 and then after a lapse of ten years on 22-1-1994. In 1994 the appellants were forced to file a writ petition for redressal of their grievance which was decided on 9-5-1996, as has already been mentioned. After the decision of the High Court in its earlier round of litigation in 1996 a direction was given to the Revenue Commissioner who took about four years and dismissed the appeal of the appellants vide his order dated 2-8-2000 and after more than a year dismissed the review petition on 14-12-2001.
5. This order of the Commissioner dated 14-12-2001 appears to have been challenged through Writ Petition No.69 of 2002 on 11-2-2002. Meaning thereby that the final judgment by the relevant authority was challenged after less than two months which means that the fact which prevailed with Honourable Judge of the High Court to apply the principle of laches that writ petition has been filed after 90 days is not factually correct. In applying principles of laches it is not only the delay which has to be considered but it is in fact the unexplained delay which has been considered fatal to attract mischief of laches, if no satisfactory explanation is furnished by the party the principle of laches can definitely be pressed into service and the party who sleeps over her right has to suffer. In that case even a delay of only few days can be fatal. In a case reported as Nazar Hussain and 4 others v. Mst. Azam Bibi and 9 others 2004 PCr.LJ 880, a Division Bench of this Court dismissed the writ petition on the ground that the complainant filed a writ petition against the police functionaries only after 33 days from the date when his report was not registered by the concerned police authorities. Similarly in case titled Mahboob Khan v. Fazal Elahi 1995 PCr.LJ 1778 a case was not registered by the police when the writ was filed after 28 days only but the same was dismissed.
6. Our above-mentioned view point also finds favour by a case reported as Azad Government of the State of Jammu and Kashmir and others v. Haji Summandar Khan 1995 MLD 1350. The writ petitions were filed after 5 to 8 months and no reasonable explanation was given for delay. In this case as well it was not belated period which mattered with the Court rather it was an absence of reasonable explanation which merited the application of principle of laches. In a case reported as Abdul Qayyum Khan v. The State PLD 1968 Peshawar 6, a delay of three years in filing writ petition was condoned. In case reported as Syed Kazim Raza v. Government of Sindh and others PLD 1976 Karachi 119, it was observed that as an identical point was involved in other case pending before the Supreme Court, the petitioner rightly waited for its outcome. In an other case titled Amanullah Khan v. Muhammad Hassan PLD 1994 Peshawar 211, it was observed that the question of laches in each case should be decided in the peculiar circumstances of the case and no hard and fast rule can be laid down in that regard. In that case it was observed that as the factum of refusal to permit redemption of mortgage was recurring one of the principle of laches was not attracted. In a case titled Khan Muhammad Qureshi v. Karachi Port Trust PLD 1994 Kar. 140, it was observed that the principle of laches would not apply in case of an order which is ab initio void. In a reported case titled Pakistan Post Office v. Settlement Commissioner 1987 SCMR 1119, the Supreme Court of Pakistan held that question of laches cannot be equated with bar of limitation and while considering the question of laches explanation of delay must be considered. The authority of this Court reported as Nusrat Fatima v. Azad Government of the State of Jammu and Kashmir and 2 others PLD 1985 SC (AJ&K) 93 which has been relied upon by the learned Judge in the High Court has not in fact been properly looked into as in the same judgment it has been held that the delay per se would not normally be a ground of refusal of its aid by the Court. Application of doctrine of laches could only be resorted to wherein in the estimation of the Court it would be unjust to allow the remedy either because of the conduct of the party which amounts to waiver or where by his conduct and negligence he has put other party in a situation of disadvantage.
7. Reproducing the above captioned observation we are of the view that it is not the time only which has to be considered to attract the principle of laches. It is only absence of reasonable explanation which attracts application of laches. There is another aspect of the case that if the party is denied remedy due to procrastination by the subordinate Courts or Tribunal the Superior Courts cannot out-suit a party simply because the matter is pending for decades. Our view finds support from another angle as well. Majority views reported in the Supreme Court Journals fortify that the controversy particularly in civil cases must be decided on merits.
On the basis of the above, we find that the appellants have been following their case without any delay and the writ petition was filed without unnecessary delay. The appeal is, therefore, accepted and the case is remanded to the High Court to decide the same on merits.
H.B.T./80/SC(AJ&K) Case remanded.
[Supreme Court (AJ&K)]
Before Muhammad Reaz Akhtar Chaudhry, C.J. and Khawaja Shahad Ahmad, J
TAHIR MAHMOOD KHAN and 13 others---Appellants
Versus
AZAD GOVERNMENT and 3 others----Respondents
Civil Appeal No.29 of 2005, decided on 21st November, 2006.
Limitation Act (IX of 1908)---
---Ss. 3 & 28---Laches, doctrine of---Application ---In applying principles of laches, it was not only the delay which had to be considered, but it was in fact the unexplained delay which had been considered fatal to attract mischief of laches----If no satisfactory explanation was furnished by the party the principle of laches could definitely be pressed into service and the party who slept over his/her right had to suffer, in that case even a delay of only few days could be fatal---Application of doctrine of laches could only be resorted to where in the estimation of the court it would be unjust to allow the remedy
either because of the conduct of the party which amounted to waiver or by his conduct and negligence he had put the other party in a situation of disadvantage---Was not the time only which had to be considered to attract the principle of laches, it was only absence of reasonable explanation which attracted application of laches---If the party was denied remedy due to procrastination by the subordinate courts or Tribunals, the superior courts could not out suit a party simply because the matter was pending for decades.
Nusrat Fatima v. Azad Government of the State of Jammu and Kashmir and 2 others PLD 1985 SC (AJ&K) 93; Nazar Hussain and 4 others v. Mst. Azmat Bibi and 9 others 2004 PCr.LJ 880; Mahboob Khan v. Fazal Elahi 1995 PCr.LJ 1778; Azad Government of the State of Jammu and Kashmir and others v. Haji Summandar Khan 1995 MLD 1350; Abdul Qayyum Khan v. The State PLD 1968 Pesh. 6; Syed Kazim Raza v. Government of Sindh and others PLD 1976 Kar. 119; Amanullah Khan v. Muhammad Hassan PLD 1994 Pesh. 211; Khan Muhammad Qureshi v. Karachi Port Trust PLD 1994 Kar. 140 and Pakistan Post Office v. Settlement Commissioner 1987 SCMR 1119 ref.
Ch. Muhammad Ibrahim Zia for Appellants.
Raja Mumtaz Hussain Kiani, Addl. A.-G. and M. Noorullah Qureshi for Respondents.
Date of hearing: 31st October, 2006.
JUDGMENT
KHAWAJA SHAHAD AHMAD, J.--- This appeal, with leave of the Court, is directed ,against the order of the High Court dated 23-10-2002, whereby the learned Judge of the High Court dismissed the writ petition filed by the appellants, herein on the ground of laches. In the very outset it may be mentioned that the learned Judge has not adverted to the merits of the case.
2. Relevant facts giving rise to the controversy in hand are that through Award No.4/82 dated 28-1-1982 and No.24/82, dated 8-9-1982 land measuring 11 Kanals, 3 Marlas belonging to the appellants, herein, was acquired for public purpose by the Azad Jammu and Kashmir Government under the acquisition law in force at the relevant time which provided maximum compensation of Rs.20,000 per Kanal. Dissatisfied with the award the appellants, as was provided by the relevant law, filed appeal before the Revenue Commissioner, who by his first order dated 22-5-1984 dismissed the appeal of the appellants. After having repeated applications before the concerned authorities appellants finally filed two writ petitions bearing Nos. 73/94 and 74/94 on 8-5-1994 in the High Court which were accepted by the learned Chief Justice of the time by his order dated 9-5-1996, wherein after enumerating the facts in detail all the orders passed by the Revenue Commissioner and other directed the Revenue Commissioner to decide the review petition afresh in accordance with law. An attested copy of the judgment of the Court in the first round of litigation finds place at pages 19 to 23 of the paper book.
3. In compliance with the direction of the learned Chief Justice of the High Court the Revenue Commissioner of the time after hearing the appellants dismissed the review petition on 2-8-2000 and the appellants having acquired another right filed review petition before the Commissioner which met the same fate on 4-12-2001 which was again challenged through Writ Petition No.69 of 2002 in the High Court. The learned Judge seized with the matter after referring to some details on facts and relying on a case of this Court reported as Nusrat Fatima v. Azad Government of the State of Jammu and Kashmir and 2 others PLD 1985 SC (AJ&K) 93, dismissed the writ petition in limine as in the estimation of the learned Judge the case of the appellants was badly hit by laches, thus the present appeal by leave.
4. We have heard the learned counsel for the parties and gone through the record of the case. Without diving deep into the facts of the controversy, we find that the appellants have been non-suited by the High Court without adverting to the exact or at least proximate legal position. The judgment referred to by the learned Judge in the High Court no doubt lays down that the delay which under the given circumstances is considered sufficient to prevent a party from obtaining relief from the Court, this judgment of the Supreme Court itself provides that the circumstances which also include the facts of the case ought to be looked into before applying the principle of laches which, in our estimation, must not ordinary be applied and the controversy and the disputes relating to the property must be decided on merits and non-suiting the party on technical ground should be avoided as nearly as possible. Some of the facts of the present controversy which escaped attention of the learned Judge of the High Court are that; the appellants have been pursuing their right from 1982 till 2002. They could not get their case decided on merit. Their first appeal before the Revenue Commissioner, which was filed immediately after acquisition order, appears to have been decided on 22-5-1984 and then after a lapse of ten years on 22-1-1994. In 1994 the appellants were forced to file a writ petition for redressal of their grievance which was decided on 9-5-1996, as has already been mentioned. After the decision of the High Court in its earlier round of litigation in 1996 a direction was given to the Revenue Commissioner who took about four years and dismissed the appeal of the appellants vide his order dated 2-8-2000 and after more than a year dismissed the review petition on 14-12-2001.
5. This order of the Commissioner dated 14-12-2001 appears to have been challenged through Writ Petition No.69 of 2002 on 11-2-2002. Meaning thereby that the final judgment by the relevant authority was challenged after less than two months which means that the fact which prevailed with Honourable Judge of the High Court to apply the principle of laches that writ petition has been filed after 90 days is not factually correct. In applying principles of laches it is not only the delay which has to be considered but it is in fact the unexplained delay which has been considered fatal to attract mischief of laches, if no satisfactory explanation is furnished by the party the principle of laches can definitely be pressed into service and the party who sleeps over her right has to suffer. In that case even a delay of only few days can be fatal. In a case reported as Nazar Hussain and 4 others v. Mst. Azam Bibi and 9 others 2004 PCr.LJ 880, a Division Bench of this Court dismissed the writ petition on the ground that the complainant filed a writ petition against the police functionaries only after 33 days from the date when his report was not registered by the concerned police authorities. Similarly in case titled Mahboob Khan v. Fazal Elahi 1995 PCr.LJ 1778 a case was not registered by the police when the writ was filed after 28 days only but the same was dismissed.
6. Our above-mentioned view point also finds favour by a case reported as Azad Government of the State of Jammu and Kashmir and others v. Haji Summandar Khan 1995 MLD 1350. The writ petitions were filed after 5 to 8 months and no reasonable explanation was given for delay. In this case as well it was not belated period which mattered with the Court rather it was an absence of reasonable explanation which merited the application of principle of laches. In a case reported as Abdul Qayyum Khan v. The State PLD 1968 Peshawar 6, a delay of three years in filing writ petition was condoned. In case reported as Syed Kazim Raza v. Government of Sindh and others PLD 1976 Karachi 119, it was observed that as an identical point was involved in other case pending before the Supreme Court, the petitioner rightly waited for its outcome. In an other case titled Amanullah Khan v. Muhammad Hassan PLD 1994 Peshawar 211, it was observed that the question of laches in each case should be decided in the peculiar circumstances of the case and no hard and fast rule can be laid down in that regard. In that case it was observed that as the factum of refusal to permit redemption of mortgage was recurring one of the principle of laches was not attracted. In a case titled Khan Muhammad Qureshi v. Karachi Port Trust PLD 1994 Kar. 140, it was observed that the principle of laches would not apply in case of an order which is ab initio void. In a reported case titled Pakistan Post Office v. Settlement Commissioner 1987 SCMR 1119, the Supreme Court of Pakistan held that question of laches cannot be equated with bar of limitation and while considering the question of laches explanation of delay must be considered. The authority of this Court reported as Nusrat Fatima v. Azad Government of the State of Jammu and Kashmir and 2 others PLD 1985 SC (AJ&K) 93 which has been relied upon by the learned Judge in the High Court has not in fact been properly looked into as in the same judgment it has been held that the delay per se would not normally be a ground of refusal of its aid by the Court. Application of doctrine of laches could only be resorted to wherein in the estimation of the Court it would be unjust to allow the remedy either because of the conduct of the party which amounts to waiver or where by his conduct and negligence he has put other party in a situation of disadvantage.
7. Reproducing the above captioned observation we are of the view that it is not the time only which has to be considered to attract the principle of laches. It is only absence of reasonable explanation which attracts application of laches. There is another aspect of the case that if the party is denied remedy due to procrastination by the subordinate Courts or Tribunal the Superior Courts cannot out-suit a party simply because the matter is pending for decades. Our view finds support from another angle as well. Majority views reported in the Supreme Court Journals fortify that the controversy particularly in civil cases must be decided on merits.
On the basis of the above, we find that the appellants have been following their case without any delay and the writ petition was filed without unnecessary delay. The appeal is, therefore, accepted and the case is remanded to the High Court to decide the same on merits.
H.B.T./80/SC(AJ&K) Case remanded.
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