2001 PLP 3248 (YLR)

MUHAMMAD YUNUS SURAKHVI, J.‑‑‑This appeal, with the leave of the Court, has been preferred against the judgment of the High Court, passed on 28‑4‑2000, whereby accepting the writ petition filed by respondent No. 1 the proprietary rights transfer order passed in favour of appellants, herein, was set aside.

2. The necessary facts, according to the appellants, giving rise to the present appeal, are that land comprising Survey No.292‑min, situate in village Shalian‑Maldial, Tehsil and District Bagh was allotted to Ali Dad Khan, the predecessor‑in‑interest of appellants, as a local destitute on 7‑4‑1975. After the allotment it is claimed that Ali Dad Khan constructed a house over the said land by spending substantial amount of money with the permission of the Custodian. On the death of Ali Dad Khan the land was allotted to appellants herein as his heirs. Respondent No.1 preferred a review petition challenging the allotment and proprietary rights transfer order passed in favour of appellants before the Custodian alleging therein that he was the first allottee and the land was given to Ali Dad Khan by him as a tenant on the basis of an agreement which was executed between the parties. It was also averred that second allotment in favour of Ali Dad Khan was a nullity. The review petition was dismissed in default by the Custodian on 19‑12‑1989. The respondent instead of tiling an application for restoration of the same filed another review petition on 25‑4‑1993 about more than 3‑1/4 years after the dismissal of his first review petition. The said review petition was dismissed by the Custodian as being time barred and incompetent because instead of moving an application for the restoration a new review petition was filed which was not allowed by law. The respondent filed a writ petition before the High Court which was accepted on the grounds that as the Custodian could suo motu exercise the review powers, the review petition should not have been treated as time‑barred and that the failure to make an application for restoration does not bring the subsequent review petition within the mischief of res judicata. It is the aforesaid judgment of the High Court, dated 28‑4‑2000, which is the subject of present appeal.

3. In support of appeal it was vehemently contended by Mr. M. Tabassum Aftab Alvi, the learned counsel for the appellants, that the finding cue High Court that the land in dispute was initially allotted to respondent in the year 1956 is not correct because the photostat copy of the allotment was not admissible in evidence. The learned counsel has contended that the case of respondent that an agreement was executed for creating a tenancy between the parties is also incorrect. The learned counsel pressed into service the submission that the High Court has ignored the fact that the second review petition was filed after more than three years of the dismissal of first review petition and thus was time‑barred. The learned counsel has further argued that the writ petition was also hit by laches because the same was filed more than four months after the dismissal of the second review petition. The learned counsel strenuously argued that the second review petition even if not hit by the mischief of res judicata was hit by the principle that if a matter is dismissed in default fresh proceedings cannot be initiated except on moving an application for restoration of the same. The learned counsel for the appellants in support of his contentions relied on unreported case of this Court titled Nazir Ahmed Khan v. Custodian of Evacuee Property and others (Civil P.L.A. No. 156 of 1998, decided on 20‑8‑1998) and Kh. Ghulam Qadir and another v. The Custodian of Evacuee Property and others (Civil Appeal No. 10 of 1992, decided on 2‑11‑1992). On the basis of these authorities' the learned counsel for the appellant contended that after the dismissal of the first review petition the respondent did not move the Court for the restoration of the review petition rather slept over the matter and after the period of more than three years filed another review petition which was hopelessly time‑barred. Similarly even after the dismissal of the review petition the respondent remained negligent for a period of four months and then he filed a writ petition which has been accepted by the High Court on artificial and flimsy grounds.

4. In reply it was contended by Sardar Rafique Mahmood Khan, the learned counsel for respondent No. 1, that at the time of filing the subsequent review petition the respondent prayed for the condonation of delay on the ground that he being in the Army service could not in time file the subsequent review petition as his counsel did not intimate him of the dismissal of the first review petition. However, the learned Custodian did not take into consideration the aforesaid explanation for condonation of delay and without any justifiable reason observed that the subsequent review petition was barred by limitation as the same was filed after the lapse of period of about more than three years from the date of dismissal of first review petition. The learned counsel contended that the Custodian was vested with the suo motu jurisdiction to cancel the allotment from the name of appellants and to condone the delay as there was no period of limitation fixed for filing a review petition against the proprietary rights transfer order. The learned counsel in support of his contentions referred to reported case titled Azmatullah and another v. Ali Bahadur and another 1996 CLC 254.

5. Mr. Farooq Hussain Kashmiri, the learned counsel for the Custodian, fully supported the arguments advanced by Mr. M. Tabassum Aftab Alvi, the learned counsel for the appellants, and further added that the subsequent review petition without bringing fresh grounds on record could not have been field by respondent. Similarly the learned counsel contended that the Custodian in his findings nowhere observed that the land in dispute was given to the appellant as a tenant on the basis of an agreement.

6. After hearing the respective contentions of the learned counsel for the parties and perusing the relevant record, it may be stated that allotment in favour of Ali Dad Khan, the predecessor‑in‑interest of appellants, was made on 7‑4‑1975, and after his death it was made in the name of heirs of Ali Dad Khan, i.e. the appellants herein, who obtained its proprietary rights transfer order on 14‑9‑1986. Against the aforesaid proprietary rights transfer order and the allotment the respondent filed a review petition before the Custodian on 29‑11‑1988 which was dismissed by the Custodian in default on 19‑12‑1989. Instead of applying for the restoration of the application for review petition the respondent chose to file another review petition on 25‑4‑1993 more than period of three years after the dismissal of first review petition. The Custodian thus observed that the review petition was hope lessly time‑barred. At the relevant time in accordance with provisions of section 18‑A, subsection (7) of the Ordinance known as Pakistan Administration of Evacuee Property (Amendment) Ordinance No LII of 1984 the period of limitation for filing review petition was 90 days which may usefully be reproduced:‑‑‑ "The period of limitation for appeal, review or revision under subsections (4) and (5) shall be 90 days from the date of order or the date on which it is communicated to person concerned whichever is later." Thus it is clear that after the dismissal of the first review petition the respondent filed a subsequent review petition after a period of more than three years. However, the ground taken by the respondent is that he being in the Army service his counsel did not inform him of the judgment of the Custodian. In our considered view this is not one of the recognized grounds for condonation of delay as the negligence of a counsel shall be deemed to be the negligence of his client. In support of said ground no affidavit, of the counsel for respondent was filed before the High Court or this Court. Even the learned Custodian did not consider it to be a genuine ground for condonation of delay. In an unreported case titled Nazir Ahmad Khan v. Custodian of Evacuee Property and others (Civil P.L.A. No. 156 of 1998, decided on 20‑8‑1998) it was observed that the mere fact that the petitioner is a poor man and was serving as a labourer at Karachi and thus he could not resort to appropriate remedy within reasonable time for filing a review petition to the Custodian is no ground for the condonation of delay. In another unreported case titled Kh. Ghulam Qadir and another v. The Custodian of Evacuee Property and others Civil Appeal No. 10 of 1992, decided on 2‑11‑1992 it was observed that application for review petition before the Custodian should be filed within prescribed period of limitation which is 30 days and on the face of it the application was filed beyond the prescribed period of limitation. It was held that it is a settled principle of law that delay of each day has to be explained by the person seeking the condonation of delay.

7. The contention raised by the learned counsel for respondent that the Custodian could have suo motu exercised his powers of review and in that case there was no period of limitation prescribed for filing of review petition, on the fact of it is not tenable as the learned Custodian did not suo motu exercise his review jurisdiction. Secondly it is only after 1987 that an amendment was effected in sections 18‑A and 18‑B of the Pakistan Administration of Evacuee Property Act, whereby unlimited powers have been given to the Custodian to review his previous order either suo motu or on the application of any person thus the authority cited by the learned counsel for respondent titled Azmutallah and another v. Ali Bahadur and another (1996 CLC 254) has no bearing on the facts and circumstances of the present case.

8. The respondent had not only been negligent and sleeping over his right for filing the subsequent review petition for a period of more than three years but he also failed to disclose a fresh ground for filing the subsequent review petition. It is indeed correct that subsequent review petition under the Pakistan Administration of Evacuee Property Act could be filed but the condition precedent is that there must be some fresh ground warranting the exercise of powers in a successive review petition. Therefore we have no doubt in our mind that respondent had been indolent and negligent in pursuing his case and thus no indulgence of this Court can be shown in his favour. The respondent, as stated earlier, instead of filing the application for restoration of review petition filed a subsequent review petition. The remedy available to him was to move an application for restoration of the earlier review petition. Order 9, rule 9 of the Code of Civil Procedure clearly provides asunder: "Decree against plaintiff by default bars fresh suit.‑‑‑(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. " Section 141 of the Code of Civil Procedure may also be reproduced which is to the following effect:‑‑‑ "Miscellaneous proceedings.‑‑‑The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil Jurisdiction. "

9. Even in view of the aforesaid provisions the remedy provided to the respondent was to file an application for restoration of the review petition. But even if we assume for the sake of arguments that the principle of res judicata does not strictly apply to the proceedings before the Custodian the second review petition was hit by the principle that if a matter is dismissed in C default fresh proceedings cannot be initiated except that an application for restoration of the same could be moved. The respondent had not only been indolent in filing a review petition before the Custodian but he had also been guilty of laches before the High Court as well. Even after the dismissal of subsequent review petition the respondent remained silent for about four months and thereafter instituted a writ petition before the High Court which was liable to be dismissed by the mischief of principle of laches. We have observed in so many cases that an unexplained delay of even three months is covered by the mischief of laches. Even on this score the writ petition filed by respondent was liable to be dismissed. In the light of what has been stated above, we accept the appeal and set aside the impugned judgment of the High Court and order the dismissal of writ petition filed by respondent No.1. In the circumstances of the case we pass not order as to costs. H.B.T./234/SC(AJ&K) Appeal accepted.