1997 PLP 268 (CLC)

‑‑‑‑S. 12(2)‑‑‑Limitation Act (IX of 1908), Ss. 3, 5 & Art. 181‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Application under S.12(2), C.P.C.‑‑‑Limitation‑‑‑Application filed beyond period of limitation ‑‑‑Effect‑‑ Limitation prescribed for filing of application was three years under Art. 181, Limitation Act, 1908, from the date when right to apply accrued‑‑‑Where decree was passed on 1‑2‑1975 and application for setting it aside was filed in Court after 13 years, same was dismissed on 19‑3‑1988‑‑‑Revision against dismissal of application was filed on 17‑3‑1990, almost two years after dismissal of application whereas period prescribed for filing revision had expired much earlier‑‑‑No application for condonation of delay was filed alongwith application under S. 12(2), C.P.C.‑‑‑Application under S. 12(2) and revision under S. 115, C.P.C. were both time‑barred‑‑‑Issues need not be framed in application which was filed after more than 13 years of the decree passed by Trial Court‑‑‑Sanctity must be attached to judicial proceedings and law is never on the side of indolent person even if contentions of petitioner be favourably considered‑‑‑Trial Court and Revisional Court were bound by mandatory provision of S.3, Limitation Act, 1908 where prima facie, there were no reasons for condonation of delay‑‑ Dismissal of application under S. 12(2), C.P.C. as ordered by Trial Court and affirmed by Revisional Court was maintained by High Court in exercise of its Constitutional jurisdiction. The petitioners are the legal representatives of Sharaf Din son of Muhammad Umer against whom Manzoor Ahmad respondent No.l had filed a suit on 30‑4‑1973 for specific performance of an agreement wherein respondent No.l appeared, filed written statement and contested the suit. Issues were framed on 18‑7‑1973 and parties were required to produce their evidence. Before framing the issues the better statement of the plaintiff and defendant was also recorded. On 4‑1‑1975 defendant No. l appeared in Court and admitted the suit. He did not appear on 25‑1‑1975 which was the date fixed in the case. Respondent No.l was proceeded ex parte. Defendants Nos.2 and 3 who were subsequently impleaded as defendants failed to file the written statement for which they requested for adjournment on 16‑5‑1974, 15‑6‑1974, 11‑7‑1974, 19‑9‑1974, 22‑10‑1974, 14‑11‑1974, 11‑12‑1974. On 25‑1‑1975 also they sought another adjournment for filing written statement which was granted. On 1‑2‑1975 they again failed to file written statement. They had earlier obtained eight adjournments for filing written statement and in view of the same the Court proceeded under Order 8, Rule 10, C.P.C. against defendants Nos.2 and 3 and the judgment was pronounced in favour of the plaintiff and against the petitioner‑defendant. The suit of the plaintiff was decreed against all the defendants as prayed for with costs.

2. Defendant No. l/judgment debtor filed an application for setting aside 'ex pane decree on 9‑3‑1988 which was dismissed by Senior Civil Judge on 19‑3‑1988. Revision against the said order was filed by the present petitioners on 17‑3‑1990 almost two years after the dismissal of the application for setting aside the ex parte decree.

3. I have heard the learned counsel for both the parties and have perused the record. I have also given my anxious consideration to the facts of the case.

4. The petitioners' predecessor‑in‑interest was represented in the Trial Court. He had filed the contesting written statement. Issues were framed. On an application for obtaining thumb‑impression of Sharaf Din defendant, he appeared in Court in person and affixed his thumb‑impression, copy of which is on the file of the revision petition. He was represented by Ch. Bashir Ahmad, Advocate and his general attorney Manzoor‑ul‑Haq also appeared in Court on 2‑4‑1974 and though his presence is not marked thereafter but it cannot be assumed that defendant No. l predecessor‑in‑interest of the petitioners was not properly represented.

5. The limitation prescribed for filing of an application under section 12(2), C.P.C,. is three years under Article 181 of Limitation Act, 1908, from the date when the right to apply accrues. In the present case decree on admission of the predecessor‑in‑interest of the petitioner was passed on 1‑2‑1975 and the first application was filed in Court after more than 13 years. This application was dismissed on 19‑3‑1988 but the revision petition was filed on 17‑3‑1990, almost after two years and the dismissal of the application whereas the period prescribed for filing of revision petition expired much earlier. No application for condonation of delays was filed. It appears that application under section 12(2) C.P.C. and revision thereafter were filed at the instance of other litigants Manzur‑ul‑Haq etc. the application under Order 1, Rule 10, C.P.C. were dismissed on 14‑12‑1973. The respondents have placed on file revocation deed of the power of attorney which was earlier executed by Sharaf Din etc. in favour of Muhammad Rafiq and was registered on 14‑2‑1969 as Deed No.37 Book 4, Volume 39 on 14‑2‑1969. This revocation deed was also registered with Sub‑Registrar, Dera Ismail Khan as Deed No.226, Book No.4, Volume‑44 at pages 148, 149 on 31‑12‑1974. Sharaf Din and his brother Islam‑ud‑Din both appeared before the Sub‑Registrar and they were identified by respectables who were known to the Sub‑Registrar. This revocation deed was executed four days before appearing in Court and making the admitting statement.

6. Application under section 12(2), C.P.C. and revision under section 115, C.P.C. were both miserably time‑barred. It would be a mockery of Limitation Act if issues are framed in an application which was filed after more than 13 years of the decree passed by the Trial Court. Sanctity must be attached to the judicial proceedings and the law is never on the side of an indolent person even if the contentions of the petitioner be favourably considered. Much water had flown down the bridge by that time and sith must fall on their alleged right. The Trial Court as also the District Judge were bound by the mandatory provisions of section 3 of Limitation Act, 1908 where prima facie there were no reasons for condonation of delay.

7. I see no force in the revision petition and the same is dismissed with costs of Rs.5,000.

8. The file of the connected appeal which was summoned by this Court be immediately sent back to District Judge, Rahim Yar Khan. During the arguments the learned counsel for the petitioner who had requested for the summoning of file titled "Muhammad Ramzan etc. v. Manzoor etc." did not refer to the same and I am convinced that the said file was got summoned through misrepresentation made to this Court in order to delay the disposal of the said appeal and there appears to be some weight in the arguments of the learned counsel for the respondents that the file of the appeal was summoned only to usurp the usufruct of the land in dispute for a longer period. In view of the same while exercising powers vested in this Court under section 24, C.P.C. it is ordered that appeal titled as "Muhammad Ramzan etc. v. Manzoor etc." pending in the Court of Additional District and Sessions Judge, Rahim Yar Khan be withdrawn and entrusted to learned District and Sessions Judge Rahim Yar Khan.

9. Orders accordingly.

10. The District Judge, Rahim Yar Khan is directed to dispose of the above referred appeal by 31‑5‑1996. A.A./A‑51/L Revision dismissed.