2013 PLP 2738 (YLR)

ROOH-UL-AMIN KHAN, J.

Instant revision petition is directed against the judgment and decree dated 5-5-2004, passed by the learned Additional District-I, Karak, whereby the judgment and decree dated 16-4-2002 of the learned Civil Judge, Karak was set aside and suit of the petitioners for declaration was dismissed.

2. Record reveals that instant revision petition had been admitted for regular hearing on 26-11-2004, and since then it was pending adjudication. After admission of the same for regular hearing, it was fixed before the Additional Registrar for attendance of the parties in the year 2010. Record further reveals that on different occasions, the petitioners attended the Court, but later on disappeared. As manifest from note of the Additional Registrar dated 2-5-2013, petitioners No.2 and 3, were reportedly served personally while the ladies petitioners i.e. petitioners Nos.7 to 9, being Pardahnashin, were served through petitioners Nos.2 and 3, but none on behalf of the petitioners turn up before the Additional Registrar. The service of the respondents also could not be procured because of their shifting to somewhere at Rawalpindi. Today, neither the petitioners nor their counsel appeared before the Court, which shows the lack of interest of the petitioners in pursuing the instant petition.

3. Undoubtedly, revision is a matter between the higher and subordinate Courts, and the right to move a petition in this respect by the petitioner, is merely a privilege. The provisions of section 115, C.P.C., have been divided into two parts: First part enumerates the conditions, under which, the Court can interfere and the second part specify the type of orders which are susceptible to revision. In numerous judgments, the apex Court was pleased to hold that the jurisdictions under section 115, C.P.C., are discretionary in nature, but it does not imply that it is not a right and only privilege, therefore, the Court may not arbitrarily refuse to exercise its discretionary powers, rather, to act according to law and the principles enunciated by the superior Courts. The legislature in their wisdom have couched section 115, C.P.C., in the following language:- "S.115. Revision:

(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears... (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity," the High Court may make such order in the case as it thinks fit. From the bare reading of the above section, at the very, outset, it may be observed that when the High Court feels the necessity to call the record of any inferior Court then, under section 115 C.P.C. the High Court is under legal obligation to decide the lis on merits. A thorough survey of the Code of Civil Procedure will indicate that there is no provision for recalling/setting aside the order qua dismissal of a revision in default or for non-prosecution. It is because that the High Court is not vested with the powers to dismiss the civil revision, after calling the record of the inferior Court.

4. From the above observations, it is manifest that on entertaining a revision petition, the High Court exercises its supervisory jurisdiction to satisfy itself as to whether the jurisdiction has been exercised properly and whether the proceedings of the subordinate Court do suffer or not from any illegality or irregularity. In other words, after filing a revision petition and calling the record of the inferior Court, the matter rests between the Revisional and Subordinate Court. To substantiate the above observation, reference may be made to a well celebrated judgment of the august Supreme Court passed in case titled, "Muhammad Sadiq v. Mst. Bashiran and 9 others" PLD 2000 SC 820). In wake of the above observations and deriving wisdom from the judgment of the Hon'ble Supreme Court (supra), I have left with no option but to decide the case, on merits, on the basis of the available record in absence of the parties.

5. Record available on file thoroughly gone through.

6. Brief but relevant facts of the case forming the background of instant revision petition are that plaintiffs (petitioners herein) filed a declaratory suit against the defendants (respondents herein) qua land bearing Khata No.1214, measuring 68 Kanals, 19 marlas, situated within the revenue estate of Moza Latamber alleging the same to be mortgaged in their favour and since inception of the mortgage, they being in continuous possession of the same as mortgagees for a period of more than sixty years have become owners of the same. The suit was contested by the respondents and on conclusion of trial the same was decreed by the learned trial Court vide judgment and decree dated 16-4-2012, which findings were assailed before the learned Appellate Court by the respondents by filing appeal, which was allowed and the judgment and decree of the trial Court was set aside. Hence, this revision petition.

7. Petitioners allege themselves to be the mortgagees of the suit-land since the very inception of the mortgage, as such the mortgagors by not redeeming the suit-land for a period of sixty years, the petitioners have become owners of the same on the basis of adverse possession for more than sixty years. The basic order in contest is with regard to dismissal of suit, which practically is the rejection of plaint, on the ground that section 28 of the Limitation Act, 1908 has been omitted from the Statute, so the suit for prescription cannot proceed. No doubt, after omission of section 28 of the ibid Act, no suit for prescription can proceed prior to the target dated 31-8-1991, as held in Maqbool Ahmad's case (1991 SCMR 2063) and the same would be liable to be buried on its very inception whereas, in the instant case, the suit was decreed by the trial Court on 16-4-2002, which has been set aside by the Appellate Court being beyond the target date in Maqbool Ahmad's case (Supra).

8. By virtue of section 20 (2) of the Limitation Act, 1908, the receipt of rent or produce of the mortgaged land by the mortgagee, when it is in his possession, is deemed to be the acknowledgment of the payment of debt for the purposes of sub-clause (1) of the Ibid section and the time would be computed from the date of such acknowledgment. It clearly suggests that when a mortgaged property is in possession of the mortgagee and he is receiving its rent or usufruct, the receipt of the produce on every harvest is deemed as an acknowledgment. In view of this provision of law, the time would be reckoned afresh from every harvest, and the mortgagor would have recurring cause of action on each harvest, regardless of what the intention of the mortgagee may be or might have been. In this regard guidance may be derived from principle laid down in Abdul Haq's case (1999 SCMR-2531).

9. Admittedly, section 28 of the Limitation Act, 1908, has been declared as repugnant to injunctions of Islam by the Shariat Appellate Bench of the Hon'ble Supreme Court in Maqbool Ahmad's case (1991 SCMR 2063). As per section 28 of the Act ibid, on expiry of period prescribed by law for a suit for possession of any property, the right of owner was to be extinguished. The basic concept and logic of the declaration of section 28 of the ibid Act, to be repugnant to the Injunctions of Islam is that no lawful owner can be deprived of his right, merely by efflux of time nor a person enjoying possession for such a long period can be rewarded with premium of ownership. The mortgagee enjoying the possession of mortgaged property for 60 years or more get too much through its usufruct, more than his mortgage money and cannot additionally be bestowed with the ownership of the property, as well, on expiry of 60 years.

10. The learned Appellate Court has rightly appreciated the law on the subject and have reached to a just and right conclusion by allowing the appeal of the respondents and dismissing the suit of the petitioners. There is no illegality or material irregularity in the impugned judgment, which may warrant interference of this court in its revisional jurisdiction. JJK/407/P Petition dismissed.