Remedy of appeal, revision time-barred: SC

The Supreme Court has held that if the remedy of a constitutional petition was not availed within a reasonable time, the interference could be refused on the ground of laches — a doctrine according to which a claimant is no longer entitled to bring an equitable claim if he sleeps over his rights by delaying in asserting them.

The top court observed that there was no exception to the rule that an unexplained delay in seeking the remedy of appeal, review or revision beyond the period of limitation provided under the statute, cannot be condoned.
A delay would defeat equity which aids the vigilant and not the indolent, it added.

The observations came in an eight-page verdict authored by Justice Muhammad Ali Mazhar, who was part of a three-member bench led by Chief Justice Umar Ata Bandial that allowed the Khyber-Pakhtunkhwa government’s plea against a decision of the Peshawar High Court (PHC).

“Laches in its simplest form means the failure of a person to do something which should have been done by him within a reasonable time. If the remedy of [a] constitutional petition was not availed within a reasonable time, the interference could be refused on the ground[s] of laches,” it added.

According to the facts of the case, during the army operation code-named ‘Rah-e-Nijat’ in 2009, the house of the respondent Fayyaz Dawar was damaged because of aerial shelling and some casualties also ensued for which compensation was paid to him.

However, the respondent, after a lapse of 12 years, sought compensation on account of the alleged damage to his house. The petitioners filed their comments, denying the claim for the reason that there was no law or policy of compensation in vogue at the relevant time to address the grievances of the respondent.

The PHC allowed the plea with directions to the petitioners to compensate the respondent as estimated by the political agent 2009. The petitioners moved the Supreme Court against the PHC’s decision.

The three-member bench heard the matter.

The judgment noted that the question of laches in a constitutional petition was always considered in the light of the conduct of the person invoking the constitutional jurisdiction.

It said one more significant aspect of the case that could not be lost sight of was the alleged that claim of compensation was based on the damages caused in 2009, but the respondent filed his petition in the year 2019.

“Notwithstanding the crucial aspect that a factual controversy cannot be decided in writ jurisdiction, the writ petition was also hit by laches which [an] essential point at [the] issue was not considered by the learned high court in the impugned judgment,” the verdict read.

“Merely advancing a plea that the respondent was engaged in correspondence with different government officials for pursuing his claim does not protect or save the respondent from the drawbacks or impediments of the doctrine of laches which explicates that a party may have a right which was otherwise enforceable but loses the right of its enforcement in case it is hit by laches,” it said.

The top court also noted that it was a well-settled exposition of law that disputed questions of facts could not be entertained and adjudicated in writ jurisdiction.

“The learned high court in the impugned judgment itself observed that it cannot practically assess the amount of damage but, despite that, the petition was allowed in disregard of a crucial fact that in the constitutional jurisdiction, the high court cannot go into miniature and diminutive details which could only be resolved by adducing evidence by the parties vice versa,” the SC observed.

“The extraordinary jurisdiction under Article 199 of the Constitution is envisioned predominantly for affording an express remedy where the unlawfulness and impropriety of the action of an executive or other governmental authority could be substantiated without any convoluted inquiry,” it added.

The court noted that the expression “adequate remedy” signified an effectual, accessible, advantageous and expeditious remedy.

“In the case in hand, the remedy of filing [a] civil suit was an appropriate and alternate remedy … which was more convenient, beneficial, and effective. The object of proceedings under Article 199 of the Constitution is the enforcement of a right and not the establishment of a legal right and, therefore, the right of the incumbent concerned which he seeks to enforce must not only be clear and complete but simpliciter and there must be an actual infringement of the right,” the judgment stated.

The SC referring to several previous judgments held that the superior courts should not involve themselves in investigations of disputed questions of fact that necessitated taking of evidence. It added that this could be carried out more appropriately in the ordinary civil procedure for litigation by a suit.

“This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate inquiry into complicated or disputed facts.

“Controverted questions of fact, adjudication on which is possible only after obtaining all types of evidence in power and possession of [the] parties can be determined only by courts having plenary jurisdiction in the matter and on such ground[s], [the] constitutional petition was incompetent,” it said.