In The Supreme Court of Pakistan (Appellate Jurisdiction)

JUDGMENT MIAN SAQID NISAR, J.- Civil Appeals No 1241 & 1242/2007 came up for final hearing before this Court on 24.9.2008 when through a short order were dismissed in the following terms:
PRESENT:
MR JUSTICE MIAN SHAKIRULLAH JAN
MR JUSTICE NASIR-UL-MULK
MR JUSTICE MIAN SAQIB NISAR
C.M.As. No 2892 & 2878/2009 in CR.P.Nos.75 & 76/2009 in Civil Appeal Nos. 1241 & 1242/2007 and Cr.C.P. No 122/2010
(Against the judgement of this Court dated 24.09.2008 passed in Civil Appeals No 1241 & 1242/2007)
Petrosin Corporation Pvt Ltd. And others
Applicant/Petitioner(s)
VERSUS
OGDC through its Managing Director
Respondent(s)
For the Applicant/Petitioner (s): Mr Abdul Hafeez Pirzada, Sr.ASC
(in C.R.Ps. 75 & 76/2009) Mian Gul Hassan Aurangzeb, ASC
Mr Mahar Khan Malik, AOR.
For the Respondent (s): Mr Wasirn Sajjad, Sr. ASC
(in C.R.Ps. 75. & 76/2009) Mr Mahmood A Shaikh, AOR
For the petitioner (s) Mian Gul Hassan Aurangzeb, ASC
(in Cr.C.P. 122/2010)
Date of Hearing: 15.12.2010 (J/R)
"For the reasons to be recorded latter, both these appeals are dismissed. However, the parties shall bear their own costs."
2. The applicants on 26.9.2008 applied for the copy of the short order in both the cases through an application (No 5920/2008) which was prepared on 07.10.2008 and delivered to them on 8.10.2008, yet another application (No 1166/2009) for obtaining the short order was moved on 23.2.2009, which was prepared and delivered to the applicants the same day.
The last application (No 1577/2009) for such order was filed on 11.3.2009 and delivered the very day. It is on the basis of this copy that the noted review petitions were instituted on 7.4.2009, with the office objection of being barred by 155 days. It may be pertinent to mention here that the applicants vide application No 5889/2008 dated 24.9.2008 had also applied for the copy of' the reasoned judgement which was prepared on 10.9.2009 and delivered to them on 11.9.2009.
In the original review petitions which were filed prior to the above it has been mentioned that the applicants shall add further grounds thereto and on the receipt of the detailed judgement, that has been so done afterwards. Be that as it may, pursuant to the office objection, noted applications CMAs.2892 and 2878/2009 have been moved seeking condonation of delay on the ground set out therein. It is stated in paragraph 4 of the applications that on 24.9.2008, the applicants applied for the certified copy of the judgement to be handed down in Civil Appeal Nos. 1241 & 1242/2007, so that review petitions are filed once the detailed judgement is available to the applicants.
This application is still pending. It is further averred that the respondent while taking advantage of the absence of the detailed judgement was taking steps to destroy the lis. In paragraph 6 thereof; it is specified that the honourable judges, who had heard the matter and passed the short order are no more serving judges of the Court, therefore, the question of detailed reasons for the short order dated 24.9.2008 does not arise. Resultantly, the short order dated 24.9.2008 is rendered void ab initio. On account of these reasons, it is submitted that the delay (if any) in filing of the review petitions is not deliberate or the consequence of negligence, therefore 'be condoned.
3. Mian Gul Hassan Aurangzeb, learned counsel for the applicants, has argued. that certain new facts/evidence were discovered by the applicants after passing of the short order and immediately before the filing of the review petitions, in as-much-as that in violation of an undertaking/promise made to the Court by the respondent during the course of hearing the appeals, that the applicants shall be permitted and entitled to participate in the next tender, it divulged that the decision had already been taken by the Board, excluding and precluding the applicants from such participation.
This was a surreptitious, clandestine, wrongful and illegal act on part of the respondent, thus, it was on account of such reason and discovery of new fact/evidence, which intended to hamper the applicants' right to participate in 'the future bid, that the initiation of review became emergent and expedient, otherwise the applicants could have waited for the detailed judgement to avail its right of review; this submission however has been made without prejudice to the plea that due to the situation arising after 31.07.2009, the short order was even rendered void.
It is also argued that as the short order was not a. judgement within the purview and meaning of law, resultantly until and unless the detailed judgement was handed down and copy thereof was delivered to the applicants for which application had been moved on 24.9.2008, the counsel for the applicants was handicapped to give the mandatory fitness certificate which was required as per Rule 4 of Order 26 of the Supreme Court Rules, 1980; that where the review is sought on the basis of discovery of new facts/evidence, the limitation would commence from the date of the discovery, beside is a good reason justifying for the condonation of delay.
4. Conversely, Mr Wasim Sajjad, learned counsel for the respondent, has submitted that the short order dated 24.09.2008 for all intents and purposes is the judgement because through the same, the appeals were finally dismissed. Consequently, the period of limitation for the Review shall commence from the date of order ie 24.09.2008; it is argued that first copy to the applicants was delivered on 08.10.2008, therefore, the limitation shall be calculated on that basis and not from the second or third application, because by the time the copies thereof were applied, the limitation had already expired; no sufficient cause/reason for condonation of delay has been propounded; it has been vehemently refuted, if any promise/undertaking was given to the court in any form or shape whatsoever that the applicants shall be permitted to participate in any forthcoming tender. This ground, as has been set forth in the petitions/applications, is stat ed to be an abortive attempt to cover up the period, of limitation and is nothing except an embellishment and overstatement; it is urged 'that in any case the discovery of new evidence does not entail indefinite period of limitation or serve as a "sufficient cause" for the condonation of delay.
5. Heard. The argument of the learned counsel that the short order is not an order in terms of law, has been duly answered by this Court in the case reported as The State Vs. Asif Adil and others (1997 SCMR 209) in which it has been emphatically held "that the short orders which have been recorded and signed by the judges concerned and have been pronounced in Courts shall be fully operative in law and in consequence thereof; the cases in respect of which the same have been passed shall stand disposed of in law." This judgement has been considered and affirmed in an unreported judgement of this court (Criminal Review Petition No 9/2008 in Cr.M.As.No 181/2007 & 282/2006 in Cr.P.361-L/2004). Besides, the learned counsel has aptly placed reliance on the case reported as Abdul Hameed Dogar vs. Federation of Pakistan and others (2010 SCMR 312), which case is quite akin to the present and it has been held:-
"In my humble view, the averments of appellant and the contention of his learned counsel, wherein no challenge vis-a-vis the computing the prescribed time is thrown to the short order being a final verdict for all intents and purposes in a lis remaining no more pending, appears to be illogical, misconceived, baseless, frivolous and unconscionable proposition to reckon the time from the date of detailed reasons. The date which matters for computing the period of limitation viz. 30 days in filing Review Petition is to be reckoned front the pronouncement of judgement or the making of the order which in this case is 31-7-2009. The Review Petition was filed on 28-10-2009, therefore, on the face of it, the same was time-barred."
Moreover, in the judgement reported as Chief Justice of Pakistan Iftikhar Muhammad Chaudhry vs. President of Pakistan through others (PLD 2010 SC 61), it has been held:-
The said judgement of the 20th of July had been signed by all the thirteen Honourable Members of the Bench and, even in the absence of the supporting reasons, was a valid judgement as declared by this court in the 'case of STATE VS. ASIF ADIL AND OTHERS (1997 SCMR 209)."
On account of above survey of law on the subject, it has been the consistent view of this Court that the short order even not elucidating the reasons when has been signed by all the judges and it finally disposes of the matter and thus the Court does not retain any control, over the lis, for all intents and purposes is the final judgement! order of the Court; the party aggrieved of such order/judgement intending to assail the same in appeal or review must avail its remedy within the prescribed period of limitation from the date of short order etc, rather than. waiting for the detailed reasons and allowing the limitation to pass by, however, in such a situation a right can be reserved to add to the ground of attack as and when the reasoned judgement is made available.
In this case the applicants procured the copy of the short: order on 8.10.2008, thus they were obliged to file the review within the period of limitation, but there is no explanation forthcoming as to why this was not so done. Again another application was moved and the copy whereof was delivered to the applicants on 23.2.2009, but in-vain. We are not convinced that the applicants would not know as to the error in the order until the detailed reasons were given so that its counsel could give certificate in terms of Order 26 Rule 4 of the Supreme Court Rules, 1980, suffice it to say that the counsel in such a situations may provide a certificate so as to comply with the law, enabling the institution of the review, and may add thereto the points on which review is being sought once tie detailed judgement is handed down. Even otherwise, this plea of the learned counsel for the applicants is controverted and refuted by its own conduct because in the instant case while filing the review petitions the certificate has been issued by the learned counsel without awaiting for the detailed judgement and this exercise could have been easily done earlier.
6. As regards the submission that on account of discovery of some new facts/evidence the applicants were obliged and constrained to initiate the review which could be done4even after the expiry of limitation, Mr Waseem Saijad, learned counsel for the respondent, has seriously controverted if any such promise was made or undertaking was given on behalf of Oil and Gas Development Corporation or personally by him that the applicants shall be allowed to participate in any future tender, which could bring the case within the above realm; moreover from the record this position is neither spelt out nor it emerges; the detailed judgement also do not reveal if it was ever a moot point before that Court in the main lis. The discovery of any so-called new facts/evidence envisaging applicants' preclusion from future participation even otherwise has no nexus to the merits of the case and/or the issues involved therein, which could be said to have been ignored by the Court while dismissing the appeals of the applicants and thus on the alleged discovery thereof the institution of the review was emergent and expedient or this could be considered as a sufficient cause/reason for the condonation of delay.
7. For the proposition that on the discovery of new facts/evidence the period of limitation for review shall commence from the date of disclosure and attaining knowledge thereof, it may be held that the discovery of new facts/evidence per see does not enlarge or extend the period of limitation; such period shall also not be reckoned from the date of discovery, but at the best it can constitute in appropriate cases a "sufficient cause" for the condonation on delay, obviously subject to the application (attraction) of Section 5 of the Limitation Act 1908 (however not relevant for the Supreme Court). But for the said purpose it must be established on the record in unambiguous and unequivocal term that if the new fact/evidence was known/available the decision of the case would have been otherwise; however as has been highlighted above, this essential condition is conspicuously missing in the present matter.
8. The applicants if were debarred from any further participation in the new tender, this provided them with a fresh cause of action and when asked it has been conceded by the learned counsel that on account of this act of the respondent, the applicants had initiated a writ petition before the High Court. This clearly establish the accrual of a fresh and independent cause of action and independent remedy availed by the applicants for its redressal, rather this factor to constitute a sufficient cause for the condonation of delay.
9. As regards the handing down of the reasons of the judgement by allegedly the non-serving Judges in the context and aftermath of the dictum of Sindh High Court Bar Association case (PLD 2009 SC 879) is concerned, suffice it to say that two Honourable judges have duly signed it before the file was received in the office on 08.09.2009. It is inconceivable and unethical to believe that such was not signed by them before tendering their resignation; only for the reason that the file of the case reached the office later, as this was only a ministerial act, would neither effect the validity of the reasoned judgement nor dispel the fact that judgement was signed when they were the judges.
10. In view of the afore-stated, we do not find any sufficient cause for the condonation of delay. Therefore, all the applications (CMAs No 2877, 2892, 4416/2009, 3333, 3230, 3641/2010 in CRP No 75/2009 & CMAs No 2878, 4417, 2879, 2822/2009 in CRP No 76/2009) are hereby dismissed with the consequence that the petitions are also dismissed being barred by time.