2014 PLP 1765 (MLD)

ZAFAR AHMED RAJPUT, J.

This civil revision application under section 115, C.P.C. is directed against the judgment and decree dated 28-5-2009 passed by the learned 1st Additional District Judge, Sukkur in Civil Appeal No.36 of 2008, upholding the judgment and decree dated 18-6-2008, passed by the learned 2nd Senior Civil Judge Sukkur, whereby the F.C. Suit No.136 of 2000, filed by the respondent/ plaintiff was decreed.

2. The impugned judgment and decree was passed on 28-5-2009 while the present civil revision was filed on 16-10-2009; therefore, the same is time barred by 1 month, even the time consumed (total 19 days) for obtaining certified copies of the judgment and decree is excluded. The applicants acknowledging that the civil revision is time barred, have filed the application (C.M.A. No.445 of 2009) under section 5 of the Limitation Act, 1908 for condonation of delay. without specifying the period of delay, on the ground that the delay was caused due to shortage of funds/late supplying of court fee papers by the applicants for filing civil application and that the judgment and decree are without jurisdiction hence no limitation period is required to challenge its legality.

3. It appears from the perusal of case file that since from the day of filing this revision application, the learned counsel for the applicants has avoided from proceeding of the case and has always either remained absent or sought time for seeking instructions from the applicants. Today is the same position, the learned counsel for the applicants called absent without any intimation. However, for disposal of the instant application under section 5 of Limitation Act (C.M.A No.445 of 2009), and the instant civil revision, I have considered the grounds taken in said application and civil revision. I have heard Mr.Manoj Kumar Tejwani, Advocate, the learned counsel for the respondent and examined the available record.

4. The grounds of applicants, for not filing the civil revision within prescribed period, is that due to shortage of funds/late supplying of court fee papers by the applicants the same could not be filed and that the judgments and decrees of lower Courts below are without jurisdiction hence, no limitation period is required to challenge its legality.

5. As against above, the learned counsel for the respondent has strenuously argued that the judgment and decree passed by the trial Court and maintained by the appellate Court do no suffer from any illegality. He has further argued that the section 5 of the Limitation Act, 1908 is not applicable to petition filed under section 115, C.P.C. He has also contended that the appellants being a Department of Government cannot claim to be treated in any manner differently from an ordinary litigant and the appellants have even otherwise failed to satisfy the Court for delay of each day. He has placed his reliance on the cases of (i) Allah Dino and others v. Muhammad Shah and others (2001 SCMR 286) (ii) City District Government Lahore, through District Coordination Officer, Lahore v. Mian Muhammad Saeed Amin (2006 SCMR 676) (iii) Hafeez Ahmed and others v. Civil Judge, Lahore and others (PLD 2012 SC 400), and (iv) State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280 = 2012 PLC (C.S.) 218.

6. It is well settled principle of jurisprudence that delay defeats equity and that equity aids the vigilance and not the indolent. Reliance in this regard is placed on the case of State Bank of Pakistan through Governor and another v. Imtiaz All Khan and others (supra). When the delay in filing the appeal is seemingly sign to mere negligence and carelessness of the appellant who failed to pursue his case with due diligence, he is not entitled to any indulgence by the Court. Further, Government and/or any Department of Federal or Provincial Governments cannot be treated differently from an ordinary litigant and if in spite of enormous resources and facilities, the Government continues to delay the filing of cases in time detrimental to its own interest, the opposite party cannot be penalized for its negligence.

7. I am in agreement with learned counsel for the respondent that the section 5 of Limitation Act is not made applicable on petition under section 115 C.P.C. In the case of Allah Dino and others v. Muhammad Shah and others (supra) the honourable Supreme Court has held that there is no cavil with the arguments that if the Statute governing the proceedings does not prescribe period of limitation, the proceedings instituted thereunder shall be controlled by the Limitation Act as a whole. But where the law under which proceedings have been launched prescribes itself a period of limitation like under section 115, C.P.C. then benefit of section 5 of Limitation Act cannot be availed unless it has been made applicable as per section 29 (2) of the Limitation Act, as held in the case (i) The Canara Bank Ltd. v. The Wardon Insurance Co.Ltd. (AIR 1935 Bombay 35), (ii) Abdul Ghaffar and others v. Mst.Mumtaz (PLD 1982 SC 572), (iii) Ali Muhammad and anothers v. Fuai Hussain and others (1983 SCMR 1239) (iv) Controller of Customs (Appraisement) v. Messrs Saleem Adaya, Karachi (PLD 1999 Karachi 76) and (v) Haji Muhammad Ashraf v. The State and 3 others (1999 MLD 330). However in the case of Province of Punjab through Collector and others v. Muhammad Farooq and others (PLD 2010 Supreme Court 582), the honourable Supreme Court has held as under:-- "It is not a healthy approach to brush aside the cases on the ground of limitation which, with reference to section 115, C.P.C. is not absolute either. A perusal of the section would indicate that a High Court may at any time call for the record of any case from a subordinate Court in order to determine as to whether the subordinate Court has exercised a jurisdiction not vested in it or has failed to exercise jurisdiction so vested or has acted illegally or with material irregularity: It is a matter of common sense and simple logic that if such power is vested in a High Court, it should not be restricted by any period of limitation. So it does when section 115, C.P.C. was originally enacted. The controversy seems to have cropped up because of the amendment in the year 1992 when, through second proviso, a period of 90 days was fixed for filing a Revision petition. A plain perusal of first and second provisos would indicate that a limitation of 90 days is relevant only when some revision petition is filed by some person or party to the proceedings. Such impediment is non-existent when Court itself exercises the power of revision under subsection (1) of section 115, C.P.C. As the job of a Court is to do ultimate justice, it can look into the matter itself despite the fact that some application filed by a party might be barred by time. Any such application can be considered by the Court as a mere information. What we intend to bring home is that if merits of the case demand that the challenged order be set aside, a High Court should not avoid hearing under section 115(1), C.P.C. for which no limitation is provided, merely because the application is filed by some body who is bound by limitation. This Court in Riaz Hussain's case 2003 SCMR 181 has observed in principle that "mere technicalities unless suffering any surmountable hurdle should not be allowed to defeat the ends of justice and the logic of words should yield to the logic of realities". Law of limitation, we believe, is a substantive law of the land and hence should not in every case be considered as a mere technicality, yet, we firmly believe that under section 115, C.P.C. having been split into two parts, the stringent implication of law of limitation can easily be avoided by the Court taking suo motu action under subsection (1) of section 115, C.P.C. in cases where merit so demands." In the case of Hafeez Ahmed and others v. Civil Judge, Lahore and others (supra) a five members Bench of honourable Supreme Court have examined section 115 C.P.C. and section 29 of Limitation Act and held as under:-- "Civil Procedure Code, 1908, though being a general law for all legal and practical purpose, for having prescribed period of limitation for filing a revision petition would be considered a special law for purposes of Limitation Act, 1908. Had legislature intended to treat C.P.C. as a general Law for purposes of Limitation Act, 1908, then same in First Schedule would have been prescribed a period of limitation for filing a revision application. Provision of sections 4, 9, to 18 and 22 of Limitation Act, 1908 would, thus, apply even to revision petition filed under section 115, C.P.C., however, section 5 Limitation Act, 1908, for not finding mentioned in section 29 therefore, shall, not be applicable to revision under section 115, C.P.C." Now question arises whether suo motu jurisdiction under section 115 of the Code could be exercised by the High Court or the District Court in a case where a revision petition has been filed after the period of limitation prescribed therefor. The answer to this question depends on the discretion of the Court because exercise of revisional jurisdiction in any form is discretionary. Such Court may exercise suo motu jurisdiction if the conditions for its exercise are satisfied. It is never robbed of its suo motu jurisdiction simply because the petition invoking such jurisdiction is filed beyond the period prescribed therefor. Such petition, could be treated as an information even if it suffers from procedural lapses or loopholes. Revisional jurisdiction is pre-eminently corrective and supervisory, therefore, there is absolutely no harm if the Court seized of a revision petition, exercises its suo motu jurisdiction to correct the errors of the jurisdiction committd by a subordinate court. This is what can be gathered from the language used in section 115 of the Code and this is what was intended by the legislature, legislating it. If this jurisdiction is allowed to go into the spiral of technicalities and fetters of limitation, the purpose behind conferring it on the court shall not only be defeated but the words providing therefor, would be reduced to dead letters. It is too known to be reiterated that the proper place of procedure is to provide stepping stones and not stumbling blocks in the way of administration of justice. Since the proceedings before a revisional court is a proceeding between the court and court, for ensuring strict adherence to law and safe administration of justice, exercise of suo motu jurisdiction may not be conveniently avoided or overlooked altogether. The court exercising such jurisdiction would fail in its duty if it finds any illegality or material irregularity in the judgment of a subordinate court and yet dismisses it on technical grounds.

8. For the foregoing reasons I am of the view that the section 5 of Limitation Act has not been made applicable under section 29(2) of the Limitation Act, on a civil revision application filed under section 115, C.P.C. which prescribes its own period of limitation i.e. 90 days. The civil revision is time barred by 1 month. I have not found any illegality or material irregularity in impugned judgments of lower Courts below to invoke suo motu revisional jurisdiction under section 115, C.P.C. to go into fetters of limitation for ensuring strict adherence to law and safe administration of justice. Hence, the application under section 5 of the Limitation Act, 1908 is hereby dismissed. Consequently, the revision application is also dismissed being devoid of merit along with all listed C.M.As., but with no order as to costs. AG/W-9/Sindh Revision dismisse