Recovery of 22 million bill from company .

Form No.HC.JD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

R.F.A. No.36584/2024

M/s. Sui Northern Gas

Pipelines Limited

VS.

M/s. Bhatti Fabrics etc.

S. No. of order/

proceedings

Date of order/

Proceedings

Order with signatures of Judge, and that of parties

or counsel, where necessary

10.06.2024

M/s. Faisal Yaqub Khan and Muhammad Yasin

Qadri, Advocate.

C.M. No.1/2024 & Main Case

Ch. Muhammad Iqbal, J:- Through this

application (C.M.No.1/2023) under Section 5 of the

Limitation Act, 1908 the applicant seeks

condonation of delay occurred in filing the titled

appeal against the consolidated judgment & decree

dated 17.03.2022 passed by the learned Additional

District Judge, Faisalabad.

Brief facts of the case are that the

appellant/plaintiff filed a suit for recovery of

Rs.12,19,57,918/- against the respondent/defendant in

respect of consumption of sui gas as after adjustment of

deposited security, the said amount is found outstanding

against the respondent/defendant. The

respondent/defendant filed contesting written statement

as well as filed a separate suit for declaration,

mandatory and permanent injunction against

the appellant/plaintiff. The Gas Utility Court,

Faisalabad consolidated both the suits, framed

issues, recorded evidence of the parties and

decreed the suit filed by the respondent/defendant

R.F.A. No.36584/2024

whereas dismissed the suit of the appellant/plaintiff

vide consolidated judgment & decree dated

17.03.2022. Against the said decision, the appellant

filed instant appeal alongwith an application under

Section 5 of the Limitation Act, 1908 for

condonation of delay occurred in filing the appeal.

We have heard the arguments of learned

counsel for the applicant/appellant and have gone

through the record.

Admittedly, the Gas Utility Court passed the

judgment & decree on 17.03.2022. The appellant

filed application for obtaining the certified copy of

the impugned judgment & decree on 17.03.2022 and

the requisite certified copies were prepared on

20.04.2022 and instant appeal was filed on

07.05.2022. On the same day, office of this Court

raised certain objections allowing three days time to

remove the same but the instant appeal was re-filed

on 08.06.2024 after about 02 years & 02 months

from the date of passing of the impugned judgment

& decree whereas under Section 13 of the Gas

(Theft Control and Recovery) Act, 2016 only a

period of thirty days is provided for filing of the

appeal against the final decision / decree to this

Court, as such this appeal is blatantly time barred.

Alongwith the appeal, an application

(C.M.No.1/2024) for condonation of the delay was

filed with the plea that the file of the title matter was

mixed up with other files and on inquiry of the

client it was traced out and thereafter the appeal was

instituted immediately, thus the delay was neither

R.F.A. No.36584/2024

willful nor deliberate and same may be condoned,

suffice it to say that the Gas (Theft Control and

Recovery) Act, 2016 is a special law which provides

30 days limitation for filing an appeal against the

final decision/decree as such the provisions of

Limitation Act, 1908 which is general law in nature,

is not applicable to the instant case. It is settled law

the provisions of the special enactment always take

preference over the general provisions of the Act

ibid. Reliance in this regard is placed on the

judgment of the Hon’ble Apex Court reported as

Gulistan Textile Mills Ltd. and another Vs. Soneri

Bank Ltd. and another (2018 CLD 203) and of this

Court reported as Messrs MCB Bank Ltd. Vs.

Commissioner Inland Revenue (2014 PTD 1874).

As regard the argument of the learned

counsel for the applicant/appellant that initially the

appeal was filed on 07.05.2022 which is well within

the prescribed period of limitation, thus any period

consumed in removing the office objections cannot

frustrate a statutory remedy of appeal of the

appellant, suffice it to say that the appellant did not

remove the office objections within time, rather

remained mum for a period of 749 days and no

convincing reason has been furnished in this regard,

thus the above argument has no force as a statutory

remedy cannot be left open for a delinquent party to

challenge the adverse order at the time of its own

choice and if in contravention to the special

statutory provision of limitation, the time period for

availing a legal remedy is extended then there

would be no end of the adversarial litigation which

R.F.A. No.36584/2024

tantamount to frustrate the ends of justice. Reliance

in this regard is placed on a judgment of the

Supreme Court of Pakistan cited as Asad Ali and 9

others Vs. The Bank of Punjab and others (PLD

2020 SC 736) the relevant portion whereof is

reproduced as under:

“14. In the context of controversy before us,

namely whether limitation stops running if an

appeal is filed within time, even if it is returned

for removing objections and re-filing the same,

reference may usefully be made to a judgment of

this Court reported as Lahore Development

Authority v. Muhammad Rashid (1997 SCMR

1224), where this Court has clearly and

categorically held as follows:

“Learned counsel appearing in support of

this petition has not addressed us on the

dismissal of the revision petition on the

ground of limitation. On perusal of the

impugned judgment, however, we find that

dismissal of the revision petition as timebarred is unexceptionable. Revision

petition was originally filed in the High

Court on 29-12-1994. The Deputy

Registrar (Judicial) raised certain

objections and returned the revision

petition on 4-1-1995 with the direction to

remove the objections within seven days.

Revision petition was, however, re-filed by

the petitioner on 10-10-1995. Office

raised an objection that the revision

petition when re-filed had become timebarred by 247 days and the

petitioner was, therefore, asked to file an

application for condonation of delay and

it was then that the petitioner moved an

application under section 5 of the

Limitation Act seeking condonation of

delay. By that time, the revision petition,

as observed by the learned Judge, had

become barred by 300 days. Be that as it

may, the delay was sought to be condoned

on two grounds, viz that due to the change

of office, the case file got mixed up in the

heap of other files and could not be traced

despite best efforts of the officials and the

law as to limitation for filing the revision

petition was misconstrued by the

R.F.A. No.36584/2024

petitioner as previously no limitation was

prescribed therefor. The application was

supported by an affidavit of Deputy

Director (Legal)/General Attorney of the

petitioner. Both the grounds were repelled

by the learned Judge holding that the

objections raised by the Deputy Registrar

of the High Court were not of such a

nature as would require recourse to the

office of the petitioner and in any case, it

was not believable that the file could not

be located for about a year. Note was also

taken of the fact that no affidavit of the

officials who were stated to have made the

efforts to locate the file was placed on

record nor was it shown as to what action

was taken against the officials who failed

in the discharge of their duties in locating

the file. With respect to the second

ground, it has been observed by the

learned Judge that ignorance of law is no

excuse and in this case, the change in law

regarding the limitation for filing a

revision petition was knowing to all the

members of legal profession. The

circumstances pointed out by the learned

Judge quite clearly show that the

petitioner's officials acted with gross

negligence in re-filing the revision

petition. They took almost one year in

doing what they were required to do in

seven days and the explanation offered by

them for this inordinate delay has not

been found to be convincing by the

learned Judge and rightly so in our view.

It has not been denied that the High Court

Rules and Orders empowered the Deputy

Registrar to raise the objections and fix

the time for removing the same. That

being so, revision petition re-filed long

after the expiry of the period specified by

the office was rightly dismissed as timebarred. Even on merits, the view taken by

the two Courts below consequent upon the

findings recorded by them on the basis of

the admitted documentary evidence was

not open to any legitimate exception.”

Further, the Hon’ble Supreme Court of Pakistan in a

recent order dated 11.07.2023 passed in a case titled

as Zulfiqar Ahmad Vs Malik Sarfraz (deceased)

R.F.A. No.36584/2024

through his L.Rs., etc. [C.P.No.1334-L/2021] has

held that the time consumed in removing the

objections will be counted under limitation and if

time consumed more than the provided in the

statute, then such matter will be dismissed as barred

by time. The relevant portion of the order (supra) is

reproduced as under:-

“This petition is barred by 146 days. There is no

application for condonation of delay. Learned

counsel for the petitioner submits that petition

was filed within time. However, record indicates

that petition was filed on 23.01.2021 but office

returned the file with objections and gave time

to remove office objections which were not

removed within time. Finally, after removal of

objections the petition was filed on 07.07.2021.

In this view of the matter, the petition was filed

with a delay of 146 days. Consequently, this

petition is dismissed as barred by time.”

Besides above, limitation is not a technicality

rather it affects the remedies of a party and law of

limitation cannot be bypassed to rescue the indolent

persons who were sleeping over the infringement of

their rights. Reliance in this regard is placed on

cases cited as Ainuddin and others Vs. Abdullah and

another (2019 SCMR 880) and Asad Ali and 9

others Vs. The Bank of Punjab and others (PLD

2020 SC 736). Thus, the application under Section 5

of the Limitation Act, 1908 for condonation of delay

occurred in filing the instant appeal is dismissed

being not maintainable.

Furthermore, a party could not be allowed to

sleep over an adverse order for infinitum and

challenge the same at the time of its own choosing

or according to its own whims and caprice rather the

R.F.A. No.36584/2024

aggrieved party is placed under legal obligation to

challenge such adverse decision/order/decree within

the prescribed period of limitation before the proper

forum, whereas after expiry of the prescribed period

of limitation, a tangible right stood accrued in

favour of the opposite party and the said right

cannot be frustrated merely on whimsical grounds.

Reliance is placed on cases cited as Shahid Pervaiz

alias Shahid Hameed v. Muhammad Ahmad Ameen

(2006 SCMR 631), Messrs Blue Star Spinning Mills

Ltd. VS Collector of Sales Tax and others (2013

SCMR 587), Ghulam Hussain Ramzan Ali VS

Collector of Customs (Preventive), Karachi” (2014

SCMR 1594) and Ashiq Hussain Sabri Vs Secretary

Health, Government of the Punjab & 8 Others

(PLD 2011 Lahore 490 (D.B).

As instant appeal is blatantly time barred

which deserves dismissal, as such there is no need

to requisition the record of the case and to decide

the issue raised in the main appeal on merits.

Reliance is placed on the case titled as Muhammad

Din Vs Abdul Ghani & Another (2012 SCMR

1004).

10.

In view of above, this appeal is also

dismissed being barred by time.

11.

Before parting with this judgment, it is noted

with great concern that as a huge amount of

Rs.12,19,57,918/- was involved in this case but the

negligent conduct of the concerned officers/officials

of the appellant-company who were pursing the

matter is the most deplorable. This appeal was

R.F.A. No.36584/2024

initially filed on 07.05.2022 which met with certain

objections raised by the office of this Court but after

receiving back the file from the office, the

officers/officials of the appellant who were dealing

with the instant case, not only misplaced the

objection form but also did not re-file the appeal

within stipulated period rather they fell in deep

slumber for about 02 years and re-filed the appeal

on 08.06.2024 which constitute deliberate and

intentional misconduct of the said officers/officials,

which caused huge monetary loss to the appellantcompany. Thus, the concerned officers/officials

including the Legal Wing of the appellant-company

are prima facie responsible for this mischief.

Reliance is placed on a case cited as Chairman,

District Evacuee Trust Jhelum Vs. Abdul Khaliq

through Legal Heirs and others (PLD 2002 SC

436) wherein the Hon'ble Supreme Court of

Pakistan has held as under:

“5. We are conscious that on declining relief

either to the government or public litigant in

view of the provision of limitation, serious,

injustice is caused to either of the party before

the Court but we cannot help it in view of the

existing law. However, concerning the cases

belonging to the Government/autonomous

bodies, at least one thing can be done that if case

is decided against it on the question of limitation,

the direction must be passed to the high-ups of

the department so he/they may initiate

departmental action against those officers who

are directly or indirectly responsible for causing

delay in instituting the cases beyond period of

limitation and even in absence of such directions,

it would be duty of such officer to take action

accordingly because if such unscrupulous

persons are not proceeded against, they will have

no fear of causing huge losses to the

Government/autonomous functionaries at the

R.F.A. No.36584/2024

cost of public exchequer because ultimately it is

the public at large who suffers, being ultimate

beneficiaries of the Government property.

6. We appreciate the steps taken by the

incumbent Chairman of Evacuee Trust Property

Board, Lahore for initiating actions against the

officers who are responsible for filing instant

petition beyond period of limitation and we are

hopeful that in future other responsible officers

would also do so.”

Another reliance is placed on a judgment titled as

Chairman/Secretary, Pakistan Railways, Ministry of

Railways, Government of Pakistan, Islamabad and

others Vs. Muhammad Sharif Javaid Warsi (PLD

2003 SC 6) wherein the Hon'ble Supreme Court of

Pakistan has held as under:

“5… It would not be out of context to note here

that prior to this matter, we have already made

identical directions in the case of Chairman,

District Evacuee Trust, Jhelum (ibid) to the

effect that the officers of Government

Departments who are responsible for causing

delay in instituting proceedings before different

Courts shall be penalized because on account of

their such conduct, Government sustains

considerable loss which ultimately have to be

borne by the public and lethargic tactics of the

delinquent officers cannot be tolerated merely

either on account of their ignorance of law or for

any extraneous consideration.”

The Hon'ble Supreme Court of Pakistan in another

case cited as Province of Punjab Vs. Sh. M. Riaz

Shahid (2005 SCMR 1435) has held as under:

“8. However, before we part with this order we

must express our grave concern over the conduct

of the concerned officials in the matter of

discharge of their obligations and who were

consequently, grossly negligent in protecting

public interest. In the first place the

Superintending Engineer of Depalpur Canal

Circle was negligent in the matter for neither

having conducted the arbitration proceedings for

R.F.A. No.36584/2024

more than two years nor having informed the

concerned parties of his inability to perform the

said task. No interest was taken by the

Department to pursue the proceedings before the

Arbitrator which led to the passing of the award

in question. The Department was again more

than negligent in taking no steps to file an appeal

in the Lahore High Court in proper time and took

1-1/2 years to do the needful.

9. This is neither the first time nor the only time

when we have noticed such a misconduct on the

part of the Government functionaries in the

matter of protecting public interest. At times one

gathers the impression that the concerned

functionaries are in collusion with the private

parties and permit the proceedings to go

undefended and then file appeals and revisions

etc. In the higher fora only to use the same to

cover their illegal and dishonest designs. It is

about time that the Government took stock of

such-like conduct on the part of the Government

functionaries which cause huge losses to public

funds and property.

10. Send a copy of this order to the Chief

Secretary of the Government of Punjab who shall

look into the matter and then take proper action

against the delinquent officials. He should also

devise some mechanism and activate the same in

consultation with the Law Secretary, the Solicitor

and the Advocate-General amongst others to

ensure proper pursuit of Court cases and other

judicial proceedings so that public interest was

properly pursued and protected”

Office is directed to dispatch copies of this order

alongwith the appeal as well as the judgment &

decree of the Gas Utility Court to the Managing

Director, Sui Northern Gas Pipelines Limited who

shall hold a thorough probe / extensive enquiry into

the matter, take stern action against the delinquent

officers/officials including the Legal Wing of the

appellant company involved in the delayed filing of

the appeal and affect recovery of amount from the

officers/officials who are found guilty in the said

inquiry. He is also directed to transmit copy of final

R.F.A. No.36584/2024

actions taken or recommendations made in this

regard to the Deputy Registrar (Judicial/Civil) of

this Court who shall place the same before this

Court for perusal on administrative side.

(Sultan Tanvir Ahmad) (Ch. Muhammad Iqbal)

Judge

Abdul Hafeez

Approved for reporting.

Judge

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