P L D 2006 Quetta 4 (PLP)

RAJA FAYYAZ AHMED, J.

This Civil Revision undersection 115, C.P.C. has been directed against judgment and decree dated 27-8-1997 passed by Qazi Court Lasbela at Uthal whereby suit instituted by the respondents against the petitioner has been decreed in their favour and against judgment/decree passed in appeal by the learned Majlis-e-Shoora Khuzdar dated 18-8-98 whereby decree passed by the trial Court has been maintained while dismissing the appeal of the petitioners.

2. The brief facts of the case are that the respondents instituted suit for declaration and injunction against the petitioners Nos. 1 and 2 on or about 10-4-1996 in the Qazi Court Lasbela at Uthal in respect of landed property measuring 130 Acres, 3 rod and 24 poles bearing Khasra Nos.266 and 410 situated in Mauza Sarona, Tehsil Sonmiani, District Lasbela claiming to be in cultivating in possession of such property as ancestral owners but at the time of revenue settlement of the area the respondents/plaintiffs claimed to have left for their livelihood to Karachi during which period the suit lands were recorded in favour of the petitioner No.1 in the Revenue Records. It has been further alleged in the suit that no sooner the father of the respondent came to know about the wrongful revenue entries pertaining to the suit-land, he submitted applications to the superior officer's for rectification and also produced evidence in support of his ownership rights and was ultimately assured that the same will be substituted, inasmuch as; Tehsildar Sonmiani stated to have verified and recommended to the higher authorities, of their entitlement and during such process the father of the respondents/plaintiff expired but ultimately correction of the disputed revenue entries was not carried out, accordingly on the above mentioned averments suit has been instituted claiming appropriate reliefs. During pendency of the suit, with the leave of the court amended suit was filed by the respondents impleadings Forest Department, Government of Balochistan as one of the co-defendant as in the plaint it was alleged that the suit property was subsequently transferred by way of allotment in the Revenue Record in favour of the added defendant. The petitioners by filing separate written statement contested and repudiated the claim of the respondents on various grounds of law and facts. The plea of the petitioner No.1 is that the suit property was never owned or possessed by the ancestors of the respondents and lawfully pursuant to the proved facts during settlement of the area, the same has been attested and recorded in favour of the Provincial Government long before and such entries were never assailed by the predecessor-in-interest of the respondents and further it has been claimed that the property remained in the exclusive possession of the Provincial Government as owners and subsequently name of the Forest Department Government of Balochistan consequent upon the allotment made by the Government of Balochistan vide notification issued on the subject. Similarly respondent No.3 repudiated the claim of the respondents. The learned trial Court out of the pleadings of the parties framed the following issues: During pendency of the suit the petitioner moved an application under Order VII, Rule 11, C.P.C. prior to the filing of the amended suit seeking for rejection of the plaint on the grounds that it does not disclose any cause of action, documents relied upon have not been annexed with the plaint and the Forest Department being the necessary party to the suit has not been impleaded. The last mentioned objection has been met with A by the respondents with the leave of the Court by impleading the Forest Department as a co-defendant in the suit, whereas; the preceding objections have not been resolved by the trial Court nor any issue was struck, however; in view of the objection taken in the application pertaining to the suit being bared by limitation issue No.1 was struck by the trial court. The respondents/plaintiffs to establish their claim produced three witnesses namely Darya Khan, Allah Waraya and Muhammad Azeem, besides certain documents were placed on record in support of their case and the respondent No.1 namely Ayub appeared in the witness box. It appears that the petitioners did not produce any evidence and the learned trial court finally decreed the suit on 27-8-1997 in favour of the respondents. The petitioner No.1 feeling aggrieved of the decree passed by the trial court filed Civil Appeal No.71 of 1997 before Majilis-e-Shoora Khuzdar and the learned appellate court vide impugned decree passed on 18-8-1998 dismissed the appeal, and; both these decrees have been assailed in the instant revision petition.

3. I have heard the learned Addl. Advocate-General and Mr. Ikhlaq Ahmed Shah at length. Addl. A.-G. contended that the suit was barred by limitation and the respondents failed to discharge onus of issue No.1 framed on the point of limitation through evidence but the courts below contrary to the terms of issue No.1 shifted the onus of the said issue on the petitioners while resolving the issue and for extraneous reasons decided the same in affirmative, although; the respondents failed to produce any material in support of such issue. According to him trial court acted with material irregularity and illegality in not affording any opportunity to the petitioners to produce evidence in rebuttal nor such aspect being specifically agitated before appellate court has been considered by it, which vitiated the whole trial and on such grounds according to the learned Addl. A.-G. the impugned decrees be treated as void ab initio. Mr. Noor Muhammad Achakzai argued that copy of the appellate judgment/decree has been supplied to the petitioner on 8-10-1998 when the judgment/decree was passed but some of the relevant documents could not be obtained which were required to be filed along with the revision petition because of non-availability of the concerned official, as a consequence whereof; the instant petition was filed after a delay of about 8 days i.e. beyond the prescribed period of 90 days and such delay may be condoned in the interest of justice, and; for the purpose C.M. No.450/99, supported by the affidavit by the learned A.-G. has already been filed. Apart from the ground mentioned in the application seeking for condonation of delay in filing revision petition, the learned Addl. A.-G. submitted that since the impugned judgments/decrees being void as argued by him, therefore, limitation does not run and the delay occurred due to the circumstances beyond the control of the petitioners, deserves to be condoned.

4. Mr. Ikhlaq Ahmed Shah, contended that the delay of seven days in filing the revision petition has not been explained satisfactorily in the application and, therefore, the same, cannot be justifiably condoned and more particularly for the reason that grounds mentioned in the application for condonation of delay are highly ambiguous and also lack necessary particulars. According to the learned counsel mere filing of application for condonation of delay and supported by affidavit, will not lay any basis to condone the delay in filing revision petition beyond prescribed statutory period, unless for plausible grounds it has been shown that the petitions were precluded to file revision within the prescribed period or the circumstances were such as that it was not possible for the petitioners or they were prevented by any sufficient cause beyond their control and means to file revision within the prescribed period of limitation but none of such reason has been shown one behalf of the petitioners nor any such ground has even been mentioned in the application justifying to condone the delay. According to the learned counsel the delay in filing revision petition cannot be excused simply on the ground that the impugned judgments/decrees being void because still an aggrieved party has to file revision from the date of acquiring knowledge about any adverse order passed against him and in the instant case application for grant of copy of the appellate impugned judgment/decree was filed on 18-8-1998 i.e. the date on which the same was passed by the appellate court and admittedly copy the appellate/judgment was delivered to the petitioners on 8-10-1998 who remained negligent throughout and filed instant petition on 98th day, from the date of supply of the copy, accordingly the delay is not capable to be condoned by the court for which the Government cannot be treated differently. The learned counsel submitted that the courts below resolved the issues on having considered all the evidence available on record by assessing the same in its true perspective and even issue No.1 pertaining to the limitation has been resolved appropriately in the light of the evidence which could not be discredited. Mr. Ikhlaq Ahmed Shah argued that despite several opportunities afforded to the petitioners they failed to produce any evidence in rebuttal and the concurrent findings of the facts are not open to any interference. The learned counsel for the respondents submitted that since the revision petition is hit by limitation therefore, contentions put forth on behalf of the petitioners other than on point of limitation need not be considered.

5. I have considered the contentions put forth on behalf of the parties in the light of the record annexed with the petition which has been gone through carefully including the judgments/decrees respectively passed by the Qazi Court Lasbela and the learned Majilis-e-Shoora, impugned in the instant petition. Judgment/decree of the trial court dated 27-8-1997 was challenged by the petitioner No.1 by filing Civil Appeal No.71/97 in the court of learned Majilis-e-Shoora. The appellate court after hearing the parties vide judgment/decree dated 18-8-1998 dismissed the appeal by maintaining the decree of trial Court passed in favour of the respondents, perusal whereof reveals that on the same date ..e. 18-8-1998 application for grant of copy of impugned judgment/decree passed by the appellate court was submitted on behalf of the petitioner and on 19-8-1998 application was allowed and the copy was prepared on 31-8-1998 and delivered to the applicant on 8-10-1998 which particulars are admitted by the petitioners in the application filed for condonation of the delay in filing the revision petition. As the impugned judgment/decree passed by the Appellate Court was announced on 18-8-1998, therefore, such date will be excluded for computing the prescribed period of limitation for filing revision petition, although; the application for supply of copy of the impugned judgment was made on the same date. Accordingly the prescribed limitation period of 90 days, for filing revision petition will be computed with effect from 8-10-1998 i.e. date on which copy of the impugned judgment/decree passed by the appellate court was supplied to the petitioner No. 1 and the instant revision petition was presented on 15-1-1999 in this court after a delay of 8 days. By moving C.M. No.450199 of which notice has been given to the respondent's counsel, condonation of delay of 8 days in filing the revision petition has been sought for on the ground that some important documents required to be obtained for filing the revision petition but due to non-availability of the concerned official, delay has been caused in filing the petition. In the application description of the documents stated to be required for filing the instant petition has not been mentioned nor even any particular about the concerned official of whose non-availability according to the petitioners, delay was caused has been given nor even copy of the application moved for the purpose which remains undisclosed, has been mentioned in the application, inasmuch as; the learned Addl: A.-G. even on query by the court failed to substantiate or explain the ground taken in the application seeking for condonation of delay, therefore, in my considered view the delay of eight days in filing revision petition beyond the prescribed period of limitation cannot be condoned unless the same is satisfactorily shown to the court to have been caused due to the circumstances beyond the control of the petitioners or that they were prevented to file revision petition within the statutory period of limitation and such a reason is completely lacking in the instant case; accordingly, c the revision petition having been filed after a delay of eight days is liable to be dismissed as such. Adverting to the contention of the learned Addl: A.-G. that since the impugned judgments/decrees are void in view of the submission made by him, therefore, the period of limitation does not run; appears to be without any substance for the reason that copy of the impugned judgments/decrees passed by the appellate court was received by the petitioner No.1 on 8-10-1998 and thereafter within the period of 90 days the petitioners could have filed the petition even if the impugned judgments/decrees have been claimed to be void and it may be observed that even if the impugned judgments/decrees treated to be void, yet; the petitioners were required to have had filed the revision petition within the prescribed period of limitation from the date when copy of the impugned judgment was received and thirdly in case the arguments advanced by Addl. A.-G. is allowed to prevail, will amount in allowing indefinite period to an aggrieved person to approach to the next available forum as and when he so likes even though he had obtained copy of the adverse order on having acquired knowledge about the same. It is a well-settled principle that even in a case of void order an aggrieved person has to approach to the next available higher forum within the prescribed period of limitation and if no limitation period is prescribed, within the reasonable time as the case may be on acquiring knowledge about an adverse or even void order. Undoubtedly limitation does not run against void order but it would not mean that an aggrieved person who has received copy of such order or has required knowledge about such fact on a particular date is permitted to challenge the same before competent for um as and when he so chooses to do.

6. As the instant petition has been filed after the delay of 8 days and on misconceived ground condonation of delay has been sought for, discussed hereinabove and as no case for condonation of delay has been made out, hence it would be futile to examine the contention of the learned Addl. A.-G. about the impugned judgments/decrees being void or otherwise. Thus, for the foregoing reasons application seeking for condonation of delay in filing the revision petition is rejected, consequently the revision petition being hit by limitation is dismissed with no order as to costs. H.B.T./12/Q???????????????????????????????????????????????????????????????????????????????????????? Revision dismissed.