1996 PLP 437 (SCMR)

MAMOON KAZI, J‑‑‑The facts of the case, briefly stated, are that, deceased Abdul Ghafoor who is now represented by his legal heirs, the respondents, had half share in Plot No. 318/13 situated at Ghulam Muhammadabad, Faisalabad. He was alleged to have agreed to sell his share in the said plot for a sum of Rs.10,000 to Khadim Hussain, now represented by his legal heirs, the petitioners in this case, vide agreement dated 28‑5‑1973. Possession of a portion of the plot was also alleged to have been delivered by Abdul Ghafoor to Khadim Hussain.

2. The sale under the said, agreement however, did not materialise, therefore, Khadim Hussain instituted a suit for specific performance of the said agreement against Abdul Ghafoor in the Civil Court at Faisalabad on 27‑7‑1981. Abdul Ghafoor resisted the suit upon a number of pleas. The trial Court dismissed the suit on 19‑11‑1987 and an appeal preferred by the plaintiff from the decree of the trial Court was also dismissed on 28‑3‑1991. Thereupon, Khadim Hussain preferred a revision before the Lahore High Court, which was heard by a learned Single Judge of the said before

3. The revision before the High Court was resisted first on the ground o1 limitation. The judgment sought to be revised was passed on 28‑3‑1991 and certified copies of the same were obtained by the petitioner in the month o1 April, 1991, but filing of the revision was delayed till 21‑12‑1993. No explanation was offered by the petitioner for such inordinate delay. Learned counsel for the petitioner tried to meet the objection before the High Court invoking Article 181 of the Limitation Act which prescribes a period of three years for applications for which no period of limitation is prescribed, but the contention was repelled by the learned Judge thus: "Rule deducible from the above case‑law clearly favoured the proposition that no period of limitation was prescribed in the Limitation Act for exercise of its power of revision by the High Court. Nonetheless, ninety days period as a rule of practice was insisted upon for observance by the High Court. Any delay beyond this period was required to be explained by the party' invoking the revisions jurisdiction of the Court. However, un-prescribed period of limitation did not affect the power of the High Court to suo motu interfere in revision for undoing miscarriage of justice. In India, in the Limitation Act, 1963, the legislature provided a period‑ of ninety days in Article 131 of the Act for exercise of powers of revision under the Code of Civil Procedure, 1908. Obviously, the predecessor Act had not prescribed any period for an application for revision. In my view, therefore, Article 181 of the Limitation Act, 1908 was clearly inapplicable for an application for revision under section 115, Civil P.C." Since no explanation had been offered by the petitioner for condonation of the admitted delay of more than two years and eight months, the learned Judge found that the revision was liable to be dismissed on such ground alone.

4. The revision, according to the learned Judge, even could not be sustained on merits because evidence of the plaintiff's witnesses was not reliable and therefore, no support could be found for execution of either of the alleged sale agreement (Exh.Pl) oX the receipt showing the payment of the amount by the plaintiff to the respondent (Exh.P2), when existence of such transaction was denied by the defendant. The learned Judge, therefore, concurred with the view taken by the Courts below in regard to the merits of the case. The revision application was, therefore, dismissed.

5. On the point of limitation, it was reiterated by the petitioners' counsel once again before this Court that, as no period of limitation had been prescribed for a revision application under section 115 of the C.P.C. before the High Court, the question as to .limitation would be governed by the residuary Article 181 of the Limitation Act, which prescribed a period of three years for an application. Support was sought in this regard from an earlier judgment of this Court in Muhammad Swaleh v. Messrs United Grain & Fodder Agencies (PLD 1964 SC 97). In this, case Kaikaus, J; had observed as under:‑‑ "The Limitation Act does not provide for any period of limitation for an application in revision. The only article which could be applicable was the residuary Article 181 which provides a limitation of three years for an application, but even that Article will not stand in the way of the exercise of revisional power for 'these powers can be exercised suo Motu." The said judgment was relied upon by a learned Single Judge of High Court in Haji Muhammad Islam v. Muhammad Rafique (1991 CLC 84), holding that a revision application filed within three years could neither be held to be time -barred nor one suffering from laches. The learned counsel for the petitioner has, therefore, argued that the application filed by the petitioner was in time as the same had been filed within a period of three years. It may be pointed out that similar contention made on behalf of the petitioner before the learned Judge of the High Court was repelled as reference was made to a later judgment of this Court in the case of Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar (PLD' 1975. SC 678) wherein it had been held that, by practice, the period of limitation for filing a revision application was ninety days and an application filed beyond such period could only be entertained, in case the Court was satisfied as to the reason nor the delay. As has also been indicated by the learned Judge of the High Court in his judgment, the said view has been followed by the Courts both in this country as well as in India and a number of. judgments have been referred to by‑,the learned Judge in the impugned judgment. It is pertinent to note that lately the' question as to the period of limitation applicable to revision applications was dealt with by this Court once again in the case of Abid Hussain v. Aziz Fatima (PLD 1995 SC 399) and the view earlier taken in the case of Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar has been followed. In the judgment, delivered by one of us (Mamoon Kazi, J.), it was observed: "No doubt, no period of limitation has been provided by the law for filing a revision before the High Court, but this difficulty. was ultimately resolved by this Court by granting its approval to the, practice earlier adopted by the Lahore High Court of fixing the period of ninety days for filing a revision before the High Court." With reference to the said case, it was further observed: "However, this does not mean that this Court intended to extend such period of ninety days without placing any onus upon the petitioner to explain the delay. Since the circumstances of the present case did not admit of any concession which could be shown by the High Court in favour of, the petitioners in this behalf, it appears that the discretion exercised by the learned Judge of the High Court was proper and, thus no exception can be taken to the same." Reference was also made in this judgment to the case, of Riasat Ali v. Muhammad Jaffar khan (1991 SCMR 496) wherein the view that the period of limitation for filing a revision is ninety days was once again re-affirmed. However, as was noticed in this case, the jurisdiction under section 115 could also be invoked suo Motu and the Court could also make "such order in the case as it thinks fit". No doubt, in. the judgment of this Court in Abid Russain's case, the case of Muhammad Swajeh (PLD 1964 SC 97) was not noticed; however, there appears to be a clear consensus in favour of the view' that in case of a revision application filed beyond. a period of ninety days; onus would clearly be on the applicant to explain the laches Consequently, no exception can be taken to the view held by the learned Judge of the‑ High Court which is in consonance with the view consistently taken by this Court in its later decisions.

6. So far as the merits of the case 'are concerned the contention :of the. learned counsel for the petitioner is that, evidence has been misread: and material evidence has been overlooked by all the three Courts below. It is pertinent to point out that the three Courts have given concurrent findings on the merits‑of the case. However, nothing has been pointed out to support the contention that any material aspect of the case has not been considered by 'the learned Courts" below. We, therefore, find no force in the second contention of the learned counsel for the petitioner as well. In the result, leave is. refused A.A./K‑29‑5/S Leave refused