EnglishFrenchPortugueseRussianUrdu

 

1995 C L C 550

 

[Peshawar]

 

Before Jawaid Nawaz Khan Gandapur, J

 

SAIN‑‑‑Petitioner

 

versus

 

BAZ and 5 others‑‑‑Respondents

 

L of 1994, decided on 15th December, 1994.

 

Abdul Rehman Hussaini for Petitioner.

 

ORDER

 

The petitioner seeks review of judgment of this Court dated 13‑10‑1994 passed in Revision Petition No. 225/94, Sain etc. v. Baz etc., whereby the judgment delivered by the Additional District Judge, Mansehra on 21-12‑1993 was upheld and the revision petition was dismissed, being barred by time.

 

2. Brief facts of the case are that the petitioner had instituted a suit in the Court of Civil Judge, 1st Class, Balakot Syed Kamal Hussain Shah, for declaration to the effect that he was owner in possession of the suit land, fully detailed in the heading of the plaint, and that impugned Mutation No.967 attested on 20‑2‑1962 (32 years ago) being without consideration and a result of fraud was illegal, void and thus liable to be set aside/cancelled.

 

3. The respondents contested the suit and raised variety of objections, legal as well as factual, in their written statement. The pleadings of the parties were reduced to as many as 12 issues. After recording the evidence of the parties to the suit the learned trial Court, by its order dated 10‑5‑1992, dismissed the petitioner’s suit, leaving the parties to bear their own costs.

 

4. The petitioner, not content with the decision of the trial Court, assailed its finding before the learned Additional District Judge, Mansehra in Civil Appeal No. 44/13 of 1992 Sain v. Baz etc. The learned Additional District Judge vide his judgment and decree dated 21‑12‑1993 dismissed the appeal. The operative portion of the said judgment is reproduced for ready reference:‑‑–

 

“I, therefore, hold that the appellant/plaintiff has failed to prove his case with cogent evidence whereas the respondent/defendant has proved the sale in his favour by producing sufficient evidence. The suit has been instituted on 20‑4‑1984 whereas the impugned mutation has been attested on 20‑2‑1962 which is also time‑barred. For the purpose of declaration, covered under Article 120 of the Limitation Act which is six years. The appeal in hand is, therefore, dismissed with no order as to costs.”

 

Announced

 

21‑12‑1993.                             (Sd.) Muhammad Jamil Khan,

 

Additional District Judge,

 

Mansehra.”

 

5. The‑petitioner challenged the legality and vires of the judgment of learned Additional District Judge before this Court in Revision Petition No.225/94, Sain v. Baz etc. After hearing the learned counsel for the parties in detail the said revision petition was dismissed by me vide my judgment dated 13‑10‑1994 wherein it was held as under:‑‑–

 

“I am not impressed by this explanation and, therefore, hold that this revision petition is barred by time and is accordingly rejected.”

 

6. The petitioner has now filed this review petition under section 114, C.P.C. read with Order 47, sub‑rule (1), C.P.C. He has prayed that the order passed by this Court, mentioned in para. No. 6 above, may kindly be set aside and the revision petition be restored and decided on merits.

 

7. I have heard the learned counsel for the petitioner in detail and have also gone through the record of the case carefully. A review can be sought only on the grounds which are enumerated in sub‑rule (1) of Order 47, C.P.C. which are to the following effect:‑

 

(i) discovery of new and important matter or evidence which after exercise of due diligence was not within the knowledge of a party or could not be produced by such party at the time when the decree was passed or order made;

 

(ii) mistake or error apparent on the face of the record, and

 

(iii) any other sufficient reason.

 

8. The learned counsel for the petitioner stated that there is no period of limitation provided for filing a civil revision in a High Court, that some of the High Courts in India, as a matter of practice, apply the period of 90 days as the period of limitation, but at the same time, on showing sufficient reasons civil revision petition had also been entertained after the expiry of 90 days. In this respect he placed reliance on the following cases:‑‑

 

(i) AIR 1942 Patna 251

 

(Mahant Goswami Krishnadevanand Ramji v. Mahant Kabildeo Ramji).

 

(ii) AIR 1953 Bilaspur 9

 

(Sant Ram v. Mst. Amrawati and others).

 

(iii) AIR 1953 Calcutta 513

 

(Nani Lal De and others v. Tirthalal De and others).

 

(iv) AIR 1957 Patna 16

 

(Rohtas Industries Ltd. and another v. P.N. Gour).

 

(v) AIR 1959 Jammu & Kashmir 76

 

(Ahmad Sheikh v. Paris Museum).

 

(vi) AIR 1978 Allahabad 214

 

(Sri Ram Narayan Jaiswal v. Smt. Rajeshwari Devi and others).

 

(vii) PLD 1982 Lahore 461

 

(Lahore Municipal Corporation v. Syed Nazir Hussain Shah and others).

 

(viii) 1990 CLC 1828

 

(Akbar Khan v. Muhammad Khan and others).

 

9. It is pertinent to point out that in all the cases cited above it was held that if a revision application is filed by a petitioner after the expiry of 90 days or after an inordinate delay, he has to explain the above delay in order to seek condonation. It is true that though the Supreme Court has not expressly held that the period of 90 days is applicable to a civil revision filed in the High Court but it has definitely approved the above practice which was prevalent in the Lahore High Court. In this regard, reliance may be placed on the following cases:‑?—

 

(1) PLD 1975 Supreme Court 678

 

(Manager, Jammu & Kashmir, State Property in Pakistan v. Khuda Yar and another).

 

The honourable Supreme Court had made the following observations in this case:‑?–

 

“The principle laid down in these authorities is that revision petition filed beyond the unprescribed limitation of 90 days could also be entertained if the Court was satisfied as to the reasons for the delay.? In the instant case, we find that an appeal was filed in the High Court having been subsequently discovered to be incompetent a request was made to the Court to treat the same as a revision with some additional grounds. The explanation offered was that the right of the petitioner to file a second appeal on account of dismissal in default of the first appeal had been extinguished by the gross professional misconduct and collusive behaviour of the counsel against whom proceedings were being initiated. It was stated at the Bar by Mr. S.M. Zafar that in fact proceedings had already been initiated against the Advocate. Considering the allegation in the context of successive dismissals in default of the appeal as well as the application for its restoration, we are satisfied that this offered a satisfactory explanation of the laches and it is presumably for this reason that the learned Judge in the High Court did not raise any objection on this account. Since the Limitation Act is not applicable to a revision, the Court was under no obligation to consider the question of limitation, moreso when the point was never raised by the Caveator before us.”

 

(2) 1991 Supreme Court Monthly Review 496 (Riasat Ali v. Muhammad Jaffar Khan)

 

In this case the learned Supreme Court has dilated upon the issue as under:‑‑

 

“In extreme cases of urgency, or of delay in obtaining copies, uncertified copies may be filed, where certified copies have been applied for, but limitation is running out, with the prayer that some further time be granted to produce the certified copies, or where the report of the Copying Agency shows that the record cannot be traced, in which case dispensation thereof may be requested. How these cases will be dealt with, it is not possible to lay down any strict rule, but since there is no period of limitation provided for the filing of revision petitions in the Limitation Act, 1908, the scope of the Court in being liberal in appropriate cases in the matter of filing of certified copies, will always be there.”

 

10. A perusal of the above‑quoted extracts from the two judgments mentioned above would indicate that the Honourable Supreme Court has tacitly approved the practice that a civil revision is to be filed within 90 days and in case of delay, the same is to be explained. However, the Supreme Court had also held that while considering the question of delay in filing civil revision the Court will be more liberal as compared to the approach in an application for condonation of delay of the limitation period provided for in the First Schedule to the Limitation Act for any legal proceedings. Reliance is placed on case Government of N.‑W.F.P. through Chief Secretary and 3 others v. Abdul Malik reported in 1994 Supreme Court Monthly Review 833.

 

11. It may be stated here that though there is no period prescribed in the First Schedule to the Limitation Act for filing of a revision petition but it is necessary that the same is to be filed diligently within a period of 90 days (1994 Supreme Court Monthly Review 833). However, it may be pointed out that the same can also be filed after the expiry of 90 days provided the petitioner makes out a good case for the condonation of delay. If a contrary view is taken it would definitely prolong the agony of the other party who had succeeded in the Court below because the losing party will be able to file a revision petition, at any time, that he chooses at his own sweet will. If this concession is granted then this would negate the basic concept of justice and that is that “justice delayed is justice denied”. Every endeavour has to be made to see that the litigation should be finalized as early as possible and without any inordinate delay. (1994 Supreme Court Monthly Review 833).

 

12. It is therefore, clear that while considering the question of condonation of delay in filing a revision petition the Court will not follow the strict rule that the delay of each day is to be explained for condonation of delay of the statutory period but at the same time, every ground of delay cannot be accepted. (1994 Supreme Court Monthly Review 833).

 

13. In the case in hand, the certified copy of the judgment was delivered to the petitioner on 15‑1‑1994 whereas the revision petition was filed on 11‑5‑1994 which was barred by 26 days. No reason has been given as to why and how the delay had taken place. The learned counsel for the petitioner submitted at the Bar that the petitioner is an illiterate person and was ignorant about the limitation prescribed for filing a revision petition in the High Court. He further stated that he had obtained the copies of the judgment of the lower Court/appellate Court well within time and had delivered the same, alongwith all the other relevant documents, to his counsel (whose identity has not been disclosed by the petitioner for reasons best known to him), who failed to perform his duties properly and diligently inasmuch as he did not file the revision petition in the High Court well within time. He further pointed out that the application for condonation of delay filed by the said counsel for the petitioner was absolutely baseless and frivolous, which fully establishes the fact that the counsel acted with negligence and was guilty of gross misconduct. The learned counsel submitted that equity and natural justice demands that because of the negligence/misconduct of the said counsel the petitioner should not be penalized. He stated that, in the circumstances, there were sufficient reasons for acceptance of this review petition and prayed that impugned order dated 13‑10‑1994 passed by this Court be reviewed and Civil Revision No. 225/94 may graciously be restored and decided on merits.

 

14. After hearing the learned counsel for the petitioner I am not inclined to enter into the factual controversy raised before me as to whether or not the said counsel for the petitioner had acted negligently or had been guilty of gross misconduct by submitting a baseless/self‑made/frivolous application for condonation of delay in this Court. The abovementioned vague averments made by the learned counsel for the petitioner cannot be accepted as sufficient grounds for condoning the delay in filing of revision petition.

 

15. It may also be pointed out that in India, Article 131 has been provided in the First Schedule in the Limitation Act, 1963, which prescribes the period of 90 days for filing a revision petition under the Code of Civil Procedure and Code of Criminal Procedure. Even in this country section 115 of Civil Procedure Code has since been amended on 30‑5‑1992 and a proviso has been added by Act VI of 1992 which provides:‑‑

 

“Provided further that such application shall be made within ninety days of the decision of the subordinate Court.”

 

16. In other words, the practice which was being followed in some of the High Courts of India/Pakistan has now been accorded statutory recognition by incorporating the abovementioned provisions in the Civil Procedure Code in section 115. In view of what has been stated above no case has been made out for review of my judgment. The review petition being devoid of any merit is I hereby dismissed in limine.

 

17. Since similar question of law and fact is involved in the other connected Review Petitions ‘i.e., (i) Civil Review No. 12 of 1994 Sain v. Baz, (ii) Civil Review No. 13 of 1994 Sain v. Baz and (iii) Civil Review No. 14 of 1994 Sain v. Yaqoob, therefore, for reasons recorded above, those too are dismissed in limine.

 

AA./1689/P             Revisions dismissed.

 

Print Friendly, PDF & Email