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P L D 2005 Karachi 164

 

Before Muhammad Mujeebullah Siddiqui, J

 

DESMOND VAZ and others‑‑‑Petitioners

 

Versus

 

KARACHI BUILDING CONTROL AUTHORITY through Chief Controller of Buildings Civil Centre, Karachi and others‑‑‑Respondents

 

Constitutional Petition No. D‑1278 of 1997, and C. M. A. Nos. 1571, 1590 and 2857 of 2002, decided on 4th November, 2004.

 

Naimur Rehman for Petitioners.

 

Anwar Ali Shah for Respondent No. 1.

 

Ahmed Pirzada, Addl. A.‑G. for Respondent No.3.

 

Syed Sami Ahmed for Respondents Nos. 14 and 15.

 

Date of hearing: 4th October, 2004.

 

ORDER

 

The application at Serial No. 1 under Order XLVII, rule 1, C.P.C has been presented on 26‑4‑2002 seeking review of the judgment dated 23‑3‑2002. The applications at Serial Nos.2 and 3 are incidental to the application at Serial No. 1.

 

The learned counsel for respondents Nos. 14 and 15 has raised preliminary objection on the point of limitation, and therefore without adverting to the facts/merits of the review application, I has heard the learned advocates for the parties on the preliminary objection.

 

Syed Sami Ahmed, learned counsel for the respondents Nos. 14 and 15 has submitted that the proceeding under Article 199 of the Constitution of the Islamic Republic of Pakistan, concerning a civil matter is a civil proceeding relating to the High Court original civil jurisdiction, and an application for review under section 114 read with Order XLVII, C.P.C., is governed by the period of limitation prescribed Under Article 162 of the First Schedule to the Limitation Act, 1908. Under this Article period of limitation provided is 20 days from the date of the decree or order for a review of judgment by a High Court in the exercise of its original jurisdiction. In support of his contention that the constitutional jurisdiction is an original jurisdiction of the High Court, he has placed reliance on the decision of Hon’ble Supreme Court of Pakistan in the case of Hussain Bakhsh v. Settlement Commissioner, Rawalpindi, PLD 1970 SC 1. He has submitted that admittedly the review application has been submitted after period of 20 days from the judgment sought to be reviewed and therefore, the review application cannot be entertained being barred by limitation and is liable to be dismissed accordingly.

 

The matter was heard on 4‑10‑2004 when Mr. Naimur Rehman, learned counsel for the petitioner contended, that the period of limitation for filing a review application in a writ petition, is not governed by Article 162 of the First Schedule to the Limitation Act, 1908, and is governed by Article 173 of the First Schedule to the Limitation Act, 1908 which prescribes the period of limitation of 90 days, from the date of decree or order for a review of judgment except in the cases provided for by Article 161 and Article 162. Mr. Naimur Rehman, contended during the course of arguments that the Constitutional jurisdiction is not an original jurisdiction of the High Court and disputed the proposition of law advanced by Mr. Sami Ahmed. He urged that the ratio of judgment in the case of Hussain Bakhsh v. Settlement Commissioner Rawalpindi is not a precedent on the point that the Constitutional jurisdiction is an original jurisdiction and consequently Article 162 of the First Schedule to the Limitation Act, which is attracted to the review of judgment by High Court in exercise of its original jurisdiction, is not attracted and the period of limitation shall be governed by the residuary provision contained in Article 173 providing period of limitation for 90 days. However, he sought time for further research and submission of a write up.

 

Mr. Naimur Rehman, has subsequently presented his written submissions, wherein he has conceded that the Constitutional jurisdiction is an original jurisdiction as held by the Hon’ble Supreme Court in the case of Hussain Bakhsh v. Settlement Commissioner Rawalpindi, PLD 1970 SC 1 and that this decision of the Hon’ble Supreme Court of Pakistan has clarified that the Code of Civil Procedure 1908 applies to petitions filed under Article 199 of the Constitution of the Islamic Republic of Pakistan. He has however, denied that the decision in the above mentioned case in any manner clarifies that the Limitation Act, 1908 will apply to the Constitution petition. He has submitted that initially he argued that Article 173 of the Limitation Act was applicable to the review applications filed in respect of the judgments of the High Court sitting in its Constitutional jurisdiction, but on further research it has been revealed that the provisions of Limitation Act, 1908 do not apply to the Constitution petition.

 

In support of his new contention contained in his written submission, contrary to his oral arguments, he has placed reliance on the judgment of Hon’ble Supreme Court in the case of Pakistan Post Office v. Settlement Commissioner, 1987 SCMR 1119. He has taken plea that no law of limitation is applicable to the institution of writ petitions and their dismissal on the ground of limitation, consequently the period of limitation shall not be applicable to the applications incidental or ancillary to the writ petition.

 

In support of his contention, he has referred to the following observations made by the Hon’ble Supreme Court of Pakistan:‑

 

“There is considerable case law on the question of laches ranging from dismissal of a writ petition on the ground of delay of few months, to condonation of laches for over a decade. No hard and fast rules have been laid down in this behalf. There is no law of limitation which may directly apply to the institution of writ petitions and their dismissal on the ground of limitation. Such position in this field of law would undoubtedly place any lawyer in a state of uncertainty what to talk of the litigant public. It would be rare that in ordinary practice such like delays would be met in the memorandum of writ petition as is the requirement regarding the statute of Limitation; whereunder when the matter is beyond limitation, an application under section 5 thereof is made applicable.

 

It needs to be emphasized that there is absolutely no justification to equate laches with statutory bar of limitation. While the former operates as a bar in equity, the latter operates as a legal bar to the grant of remedy. Thus, in the former, all the dictates of justice and equity and balance of legitimate rights are to be weighed; in the latter, subject to statutory relaxations in this behalf, nothing is left to the discretion of the Court it is a harsh law. Thus, passage of time per se brings the statute of limitation in operation, but the bar of laches does not deny the grant of right or slice the remedy unless the grant of relief, in addition to being delayed, must also perpetuate injustice to another party. It is also in this very context that the condonation of delay under section 5 of the Limitation Act will be on different harder considerations than those in a case of laches.

 

Before parting with this judgment it need to be observed that although the question of applicability of the Article 181 of the Limitation Act to the filing of writ petition has not been argued at the bar, it might nevertheless require examination in a proper case. It has been held by this Court in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1, that such proceedings before the High Court are of civil nature and C.P.C applies except when excluded. Whether similar argument cannot be raised regarding limitation might need examination.”

 

On the basis of the above observations Mr. Naimur Rehman, has submitted that the decision in the case of Hussain Bakhsh v. Settlement Commissioner, Rawalpindi, does not hold the position in respect of limitation as claimed by the learned counsel for Respondents Nos.14 and 15. He has maintained that it would seem unreasonable that the Limitation Act, 1908 not applying to the institution or dismissal of writ petition, call be applied at any other stage of the proceedings, which if permitted would in effect extinguish the petitioners right to a remedy without considering properly the merits of the petition.

 

Mr. Naimur Rehman, has also placed reliance on two other judgments of the Hon’ble Supreme Court, in the case of Ahmed Khan v. The Chief Justice and the Judges of the High Court, West Pakistan and others PLD 1968 SC 171 and Province of Punjab v. Deputy Commissioner Lahore, 1991 SCMR 1592. However, these judgments have no direct bearing on the issue under consideration. In the first judgment the issue under consideration was the competence of the High Court to make a law enhancing the Court‑fee leviable on a petition from Rs.5 to Rs.100.’ The enhancement of the Court fee was held to be intro‑vires and legal. In the later judgment the ratio in the case of Pakistan Post Office v. Settlement Commissioner 1987 SCMR 1119 as followed.

 

I have carefully considered the contentions raised by the learned advocates for the parties and the judgments on which they have placed reliance. In view of the fact that Mr. Naimur Rehman, learned counsel for the petitioner has given up his plea to the applicability of Article 173 of the First Schedule to the Limitation Act, 1908 and has conceded on the point that the Hon’ble Supreme Court has finally settled that the Constitutional jurisdiction is an original jurisdiction, I need not, dilate on these points. After the above concession made by Mr. Naimur Rehman, the only point for consideration is whether Limitation Act is applicable to a review application submitted under section 114 read with Order XLVII, C.P.C. If it is found that Limitation Act is applicable then there would be no difficulty in holding that the only Article applicable to such application is Article 162 of the Limitation Act. However, if it is found that the Limitation Act is not applicable to application seeking review under section 114 read with Order XLVII, C.P.C., to the judgment passed in the writ petition, then the period of delay would be considered on the ground of laches only and in the light of law laid down by the Hon’ble Supreme Court of Pakistan, in the case of Pakistan Post Office v. Settlement Commissioner, 1987 SCMR 1119.

 

The main contention of Mr. Naimur Rehman, contained in his written submissions is that the law laid down by the Hon’ble Supreme Court, in the case of Hussain Bakhsh v. Settlement Commissioner Rawalpindi only clarifies that the Code of Civil Procedure 1908 would apply so as to regulate the procedure for filing Constitution petition in the High Court. According to him no analogy can be drawn with a view to bring it within the purview of Limitation Act, 1908 and can not be stretched to make a Constitutional petition to be akin to a civil suit filed in the High Court in its civil jurisdiction; considering the purpose and intent of Constitution petition, i.e. to uphold fundamental rights. Elaborating his point of view, it is urged that, notwithstanding, the fact that the Code of Civil Procedure, 1908, applies to regulate procedural aspect of filing Constitution petition, it cannot be that it automatically applies so as to attract the provisions contained in the Limitation Act, 1908 or for that matter limit the timing of filing civil proceedings within the Constitutional petition. The submission of learned counsel is that since the Limitation Act is not applicable to the institution of writ petitions as held by the Hon’ble Supreme Court and the dismissal of writ petition on the ground of limitation is not warranted and the delay if am, is to be governed by the doctrine of laches, the same principle should govern the application in the ancillary proceedings in a writ petition.

 

After a very anxious consideration, I am not persuaded to agree with the submissions of Mr. Naimur Rehman, learned counsel for the petitioner. So far, the applicability of the law of limitation contained in the Limitation Act, 1908, pertaining to the institution of writ petition under Article 199 of the Constitution, is concerned it already stands decided that “there is no law of limitation which may directly apply to the institution of writ petitions and their dismissal on the ground of the limitation.” In the case of Pakistan Post Office v. Settlement Commissioner (supra) the Hon’ble Supreme Court, merely observed that the question of applicability of Article 181 of the Limitation Act to the filing of writ petitions requires examination in a proper case on the analogy of the law laid down in the case of Hussain Bakhsh v. Settlement Commissioner Rawalpindi (supra), but this aspect has not been considered by the Hon’ble Supreme Court in any subsequent case. At least it has not been brought to my knowledge. However, the contention of Mr. Naimur Rehman, that in the case of Hussain Bakhsh v. Settlement Commissioner Rawalpindi, the Hon’ble Supreme Court has merely clarified that the Code of Civil Procedure, 1908 would apply so as to regulate the procedural aspect of filing Constitution Petition in High Court, does not appear to be based on sound footing. A careful reading of the judgment in the case of Hussain Bakhsh shows, that the Hon’ble Supreme Court was not seized of the issue pertaining to the procedural law relating to the filing of a Constitution Petition in High Court but examined the question of jurisdiction of the High Court to review an order made by it in exercise of the writ jurisdiction. At this stage I would like to observe that Article 199 of the Constitution of Islamic Republic of Pakistan speaks of an application by any aggrieved party and thus, a writ petition is simply an application by an aggrieved party seeking redress from the High Court by way of issuing the writs envisaged in Article 199 of the Constitution. Thus, the writ jurisdiction of the High Court can be invoked by simply filing an application. The technicalities governing the pleadings under the C.P.C are not applicable for the simple reason that the proceedings under Article 199 are basically summary in nature and envisage the invocation of jurisdiction by any aggrieved party, without having recourse to the technicalities of civil/criminal law. Under this jurisdiction an expeditious and inexpensive dispensation of justice is contemplated. If the relief sought in the petition is of civil nature the proceedings are in the nature of original civil jurisdiction and if the relief sought falls within the realm of criminal administration of justice, the application under Article 199 of the Constitution, shall be in the nature of criminal original proceedings. Thus, looking to the very purpose required to be achieved in the pursuance of the jurisdiction conferred on the High Court under Article 199 of the Constitution, no limitations and procedural technicalities have been prescribed either under the Constitution or any other law. Under Article 202 of the Constitution, the High Court is empowered to make rules relating the practice and procedure of the Courts including the filing of writ petitions and the ancillary proceedings but to my knowledge no such rules have been framed by the Sindh High Court. Article 199 of the Constitution specifies the kinds of writs which can be issued by the High Court and further provide for grant of interim relief and the period for which an interim order concerning public revenue shall remain operative. In order to make the invocation of writ jurisdiction simple and easy, the provisions contained in C.P.C. have not been made applicable to institution of writ petitions. In the absence of any rules of procedure governing the ancillary proceedings including invocation of review jurisdiction of the High Court the Hon’ble Supreme Court examined the issue in the case of Hussain Bakhsh v. Settlement Commissioner (supra). While examining the issue the Hon’ble Supreme Court observed that, “The right to claim review of any decision of a Court of law, like the right to appeal, is a substantive right and not a mere matter of procedure.” The Hon’ble Supreme Court clarified that the right of appeal from any decision of any Tribunal must be given by express enactment and the principle is equally true in case of review, because both appeal and review, though differ in scope, are substantive rights. The Hon’ble Supreme Court further observed that, “As such neither of them is available unless it has been conferred by law.” The Hon’ble Supreme Court while considering the issue observed as follows:‑‑

 

“However, section 114 of the Code of Civil Procedure confers jurisdiction on the Courts of Civil Judicature to review judgments pronounced by them, and Order XLVII, rule 1 of the Code prescribes the grounds on which such review can be claimed. Apart from the Court’s inherent power of review, this is the only legal provision which confers power of review on Civil Courts, that is, Courts of Civil Jurisdiction.” The Hon’ble Supreme Court further observed that, “Nevertheless, the provisions of the Code of Civil Procedure in view of section 117 thereof apply to High Courts.” The Hon’ble Supreme Court further observed that pursuant to the power under section 129 of the Code no rule appears to have been made by either of the High Court of East and West Pakistan, making the provisions of section 114 of the Code inapplicable to it in the exercise of its original civil jurisdiction. Hence, the power of review under section 114 of the Code is available to the High Court in exercise of appellate and original civil jurisdictions. The Hon’ble Supreme Court repelled the contention that the Code of Civil Procedure was not available to the High Court’s writ jurisdiction and held that the Civil Procedure Code regulates civil proceedings. The nature of the proceeding does not necessarily depend on the nature of the jurisdiction of the Court invoked. It was further held that, “In order to determine whether a proceeding is a civil proceeding or not, it is necessary to see what are the questions raised and decided in the proceeding. If the proceeding involves the assertion or enforcement of a civil right, it is a civil proceeding. The Hon’ble Supreme Court referred with approval, the observation of Privy Council in the case of Sabitri Thakurani v. Savi AIR 1921 PC 80 as follows:‑‑

 

“The Code is framed on the scheme of providing generally for the mode in which the High Court is to exercise its jurisdiction, whatever, it may be, while specifically excepting the powers relating to the exercise of original civil jurisdiction, to which the Code is not to apply.”

 

The Hon’ble Supreme Court further observed that “the writ under Article 98 of the Constitution is an original jurisdiction which pertains to civil as well as other matters.” It was further held that, “a proceeding taken for the enforcement of civil right is a civil proceeding, whatever may be the source of the Court’s jurisdiction invoked for enforcement of such a right”. It was clarified that, whether a proceeding is civil or not depends on the nature of the subject matter of the proceeding and its object, and not on the mode adopted or the forum provided for the enforcement of the right. It was also held that the proceeding under the writ jurisdiction relating to a civil matter is a civil proceeding although the High Court jurisdiction in such a proceeding is Constitutional jurisdiction of an original kind. A civil proceeding in a Court of civil jurisdiction is governed by the Code of Civil procedure and section 114 of the Code conferring power of review not having been made inapplicable to the High Court in exercise of its original civil jurisdiction, the power to review an order made by the High Court in its writ jurisdiction will be available to it under the said section 114 if that section is otherwise applicable. It was ultimately held that review of order made by High Court in its writ jurisdiction is competent under Clause (b) of section 114 of the Code of Civil Procedure.

 

Now the question arises whether the power to review exercised by the High Court in a writ jurisdiction by recourse to section 114, C.P.C is governed by the law of limitation or not. The contention of Mr. Naimur Rehman that the law of limitation is not applicable to the institution and dismissal of writ petition under Article 199 is governed by the doctrine of laches only therefore, the law of limitation is not applicable to the review application submitted in writ proceedings appears to be attractive but does not contain any substance. His contention that the law of limitation contained in the Limitation Act, 1908 is aimed to consolidate and amend the law relating to the limitation of suits, appeal and certain application to the Court and therefore, it is not applicable to the review application in the writ petition is also without any force. The reason being that an application under Article 199 of the Constitution invoking writ jurisdiction of the High Court is neither suit nor any application envisaged under C.P.C or any other statute law. It is an application under the supreme law of the land i.e. Constitution and as such in the absence of any rules framed by the High Court is not circumscribed by any law of limitation. However, the ancillary proceedings in the writ jurisdiction which is in the nature of original civil jurisdiction, are not on the same footing as application under Article 199 itself. As held very clearly by the Supreme Court in the case of Hussain Bakhsh v. Settlement Commissioner (supra) the power of review is conferred on the High Court under section 114 of the C.P.C by virtue of applicability of the C.P.C. to the proceedings in the nature of civil proceedings. The review application is not envisaged under Article 199 of the Constitution or any other provision contained in the Constitution but emanates from the provisions contained in Civil Procedure Code. The proceedings under various provisions of the Civil Procedure Code can be initiated within the period of limitation provided in C.P.C. itself or under the Limitation Act. However, if no period of limitation is provided for initiating an application as was the case in respect of revision application under section 115, C.P.C, before insertion of IInd Proviso to section 115(1) by Act VI of 1992, whereby the period of limitation of 90 days was prescribed, the issue of limitation can be governed on the doctrine of laches Hon’ble Supreme Court in the case of Manager Jammu and Kashmir State Property v. Khuda Yar, PLD 1975 SC 678, observed as follows:‑‑

 

“It can not be denied that legal precepts were devised with a view to impart certainty, consistency and uniformity to administration of justice and to secure it against arbitrariness, errors of individual judgment, and mala fide. Over a period of time this development of codes and rules led to the evolution of what is called ‘Jurisprudence of Conception’ a system of logical deduction from fixed premises.”

 

At the cost of repetition, I would like to observe that if the law of limitation is not applicable Courts shall have discretion to consider the delay on the doctrine of laches but where ever the law of limitation is attracted the Court has no jurisdiction to relax the period of limitation except in accordance with the provisions of law in this behalf. Once the Hon’ble Supreme Court has held that the High Court can exercise the review jurisdiction in writ proceedings by recourse to section 114, C.P.C the logical conclusion is that all the laws including the law of limitation come into operative automatically. Substantive right of review can be availed by a party under section 114, read with order XLVII, rule 1, C.P.C with all its merits and demerits, benefits and adverse effects advantages and disadvantages. If does not lie with the party to, allege that he may be allowed to avail the substantive right of review under section 114, C.P.C but without rigors of the law of limitation which otherwise is applicable. At this stage, I would like to consider the contention of Mr. Naimur Rehman, that by Limitation Act, 1908 law relating to the limitation of suits, appeal and certain applications to the Courts have been consolidated and therefore, it is not applicable to the review application in a writ jurisdiction. As already held the writ petition although a proceeding in the nature of original civil jurisdiction is not a suit therefore, the period of limitation is not applicable to it. However, the review application is fully covered under the expression in the preamble of the Limitation Act, 1908 “certain applications to the Courts”. An application for review under section 114, C.P.C is certainly an application to the Court, notwithstanding, being in the writ proceeding and therefore, the law of limitation shall be attracted.

 

Consequent to the above conclusion, it is held that, as the law of limitation is applicable, therefore, the only provision which is attracted is, as contained in Article 162 of the First Schedule to the Limitation Act, 1908 and admittedly the review application has been presented beyond the period of 20 days prescribed under Article 162 and therefore, the review application is liable to be dismissed.

 

Resultantly the review application is dismissed as barred by time and the merits of the application are not required to be considered.

 

The review application stands dismissed accordingly.

 

M.B.A./D‑14/K Application dismissed.

 

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