BLUE STAR SPINNING MILLS LTD. VS COLLECTOR OF SALES TAX, 2013 PTD-SUPREME-COURT 1023 (2013)

(To review this Court's judgment dated 18-6-2012 passed by this Court in Civil Petitions Nos.1691-L to 1693-L of 2008).

(a) Limitation Act (IX of 1908)---

----S. 3---Constitution of Pakistan, Art. 188---Review of Supreme Court judgment---Void order---Limitation for challenging a void order---Scope---Sales Tax Department passed order-in-original against the petitioner-company---Appeal filed against such order was dismissed by the Appellate Tribunal as being time-barred---Petitioner-company contended that order-in-original passed by Department was a void order; that no limitation ran against a void order, and that such aspect was not appreciated by the Appellate Tribunal, the High Court and the Supreme Court---Validity---Rule that no limitation ran against a void order was not an inflexible rule---Party could not sleep over to challenge a void order and it was bound to challenge the same within the stipulated/prescribed time period of limitation from the date of knowledge before the proper forum in appropriate proceedings---Appeal filed before the Appellate Tribunal was admittedly time-barred, and was rightly dismissed as being hit by limitation and no sufficient cause for condonation of delay was found---High Court agreed with the order of Appellate Tribunal---Supreme Court had affirmed concurrent findings recorded by fora below---Review petition was dismissed in circumstances.

Chief Settlement Commissioner v. Muhammad Fazil PLD 1975 SC 331 and Muhammad Raz Khan v. Government of N.-W.F.P. PLD 1997 SC 397 rel.

(b) Limitation Act (IX of 1908)---

----S.3---Void order---Limitation for challenging a void order---Scope---Rule that no limitation ran against a void order was not an inflexible rule---Party could not sleep over to challenge a void order and it was bound to challenge the same within the stipulated/prescribed time period of limitation from the date of knowledge before the proper forum in appropriate proceedings.

Chief Settlement Commissioner v. Muhammad Fazil PLD 1975 SC 331 and Muhammad Raz Khan v. Government of N.-W.F.P. PLD 1997 SC 397 rel.

(c) Constitution of Pakistan---

----Art. 188---Review of Supreme Court---Judgment---Scope---Supreme Court in exercise of its review jurisdiction could not sit as a court of appeal against its own order.

Dr. Ilyas Zafar, Advocate Supreme Court and Mahmood ul Islam, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 9th January, 2013.

ORDER

TASSADUQ HUSSAIN JILLANI, J.---Thisorder shall dispose of Civil Review Petitions Nos. 47-L to 49-L of 2012 as they have nexus.

2.Learned counsel for the petitioner seeks review on the ground that the order-in-original was a void order and while dismissing the appeal the Appellate Tribunal neither adverted to this aspect nor merit of the main appeal but dismissed the same as time-barred. The said question of law was raised before the learned High Court and this Court but the same has not been considered as mandated in law.

3.We have considered the submissions made by learned counsel. He has mainly contended that the order in original passed by the Additional Collector (Adjudication) Customs, Sales Tax and Central Excise, Multan was a void order and neither the Appellate Tribunal nor the High Court and even this Court in passing the order under review have appreciated that no limitation runs against a void order; that such an order has to be ignored and this is an error warranting interference in review jurisdiction.

4.This Court in exercise of its review jurisdiction cannot sit as a court of appeal against its own order. The appeal filed before the Customs, Excise and Sales Tax Appellate Tribunal (Lahore Bench-II) was admittedly time-barred and the learned Tribunal had rightly dismissed the appeal as being hit by limitation and found no sufficient cause for condonation. In affirming the said order, the learned Division Bench of the Lahore High Court adverted to the question of limitation and did not find any ground tenable in law to take a divergent view. The concurrent orders were affirmed by this Court vide the judgment under review. The Court specifically adverted to the argument raised by petitioner's learned counsel that no limitation runs against a void order and held that this is not an inflexible rule; that a party cannot sleep over to challenge such an order and that it is bound to do so within the stipulated/prescribed period of limitation from the date of knowledge before the proper forum in appropriate proceedings. This is in line with the law laid down by this Court in Chief Settlement Commissioner v. Muhammad Fazil (PLD 1975 SC 331) wherein it is observed that "direct proceedings for having a decision invalidated or set aside may be either by way of appeal, revision or review, initiated by the affected party, in accordance with the relevant law; or they may take the form of suo motu recall of the order by the Court or authority which made it; or, lastly, action to be taken by way of a regular suit before a Court of general jurisdiction for a declaration as to the invalidity of the order." Similarly in Muhammad Raz Khan v. Government of N.-W.F.P. (PLD 1997 SC 397) at page 400 this view was reiterated in terms as follows:--

"We earnestly feel that unless certain constraints apply against right of challenging void order specially relatable period of knowledge, the same may create complication leading to dangerous results. Principle of justice and fair play does not help those who were extraordinary negligent in asserting their right and despite becoming aware about alleged void order adverse to their interest remain in deep slumber. Therefore, according to our considered opinion, facility regarding extension of time for challenging orders cannot be legitimately stretched to any length of unreason period at the whims, choices or sweet will of affected party. Thus, order termed as nullity or void could at best be assailed by computing period of limitation when he factually came to know about the same. When a person presumes that adverse order is a nullity or totally devoid of lawful authority and ignores it beyond the period specified by law of limitation, then he does so at his own risk. Therefore, in all fairness terminus a quo will have to be fixed, the date of knowledge of alleged void order; which too must be independently established on sound basis. In this behalf, we derive strength from the observations contained in PLD 1975 Baghdad-ul-Jadid 29 (Sayed Sajid Ali v. Sayed Wajid Ali) and 1978 SCMR 367 (S. Sharif Ahmad Hashmi v. Chairman, Screening Committee)".

5.For what has been discussed above, we do not find any merit in these petitions, which are dismissed.

MWA/B-2/SCPetitions dismissed.