2007 PLP 135 (YLR)

MUHAMMAD MUZAMMAL KHAN, J.

This judgment proposes to decide three revision petitions, one in land and C.Rs. 520 and 521 of 2006, as all these petitions involve similar questions of law/ facts and arise in alike circumstances.

2. Succinctly, relevant facts are that pending three appeals of the petitioner against each of the respondents in above referred civil revisions, before the Secretary Cooperative, petitioner was promulgated to be an Authority through an Ordinance of 1999 Defence Housing Authority, Lahore Ordinance (LI of 1999) by the Governor of the Punjab vide notification dated 29-9-2003. The Lahore Cantonment Cooperative Housing Society registered under the Cooperative Societies Act, 1925 and all bodies constituted there-under, were dissolved by the said Ordinance, in result of which litigation pending before the Secretary Cooperative, was dismissed on account of lack of jurisdiction. Petitioner approached the Civil Court by filing three distinct suits with the claim that this forum being the Court of ultimate jurisdiction, would adjudicate upon the matters, which were previously placed before the Secretary Cooperative.

3. Respondents being defendants in the suits, filed their respective applications under Order VII, rule 11, C.P.C., which were ultimately accepted by the learned Civil Judge, seized of the suits and all the three plaints of the petitioner were rejected on 15-11-2003. Petitioner being aggrieved of rejection of plaints, filed three appeals before the learned Additional District Judge but each of those, having been filed after a delay of one day, was barred by limitation. Petitioner had also moved 3 applications under section 5 of the Limitation Act, 1908 praying condonation of delay, on the ground that Clerk of the counsel for the petitioner namely, Muhammad Yasin son of Allah Rakha, misplaced bundle of the files of the cases on 20-12-2003 which could be traced on 23-12-2003 resulting in unintentional delay of one day in filing the appeal. This application was supported by two affidavits, one by Muhammad Yasin Clerk of the counsel and the other Mr. Faisal Hanif, Advocate. Appeals filed by the petitioner were admitted to regular hearing but were ultimately dismissed on 24-9-2004, being barred by limitation by declining the prayer for condonation of delay. Petitioner thereafter, filed above noted ' three revision petitions and the respondents in all the three revision petitions appeared and were represented through their counsel.

4. I have heard the learned counsel for the parties and have examined the record. Appellate Court while declining to condone the delay in filing the appeals, remarked that files were allegedly lost/misplaced by the Clerk of the counsel but his affidavit was said to have not been produced and instead affidavit of Mr. Faisal Hanif, Advocate, was relied which was not relevant as the files were misplaced by the clerk. Scan of record revealed that application under section 5 of the Limitation Act, 1908 was supported by an affidavit of Muhammad Yasin son of Allah Rakha, whose address was mentioned as 20/21 Sadiq Plaza, The Mall, Lahore, which is the place of office of learned counsel for the petitioner besides an independent affidavit of Mr. Faisal Hanif, Advocate, in support of averments in the accompanying application but this affidavit was overlooked by the learned Additional District Judge while passing the impugned order. Besides it, petitioner's appeals had been admitted to regular hearing and respondents had appeared to contest those but they did not opt to file any reply to the application under section 5 of the Act (ibid) and at the same time, none of them filed any counter affidavit to dispel the impact of two affidavits one by the counsel himself and the other by his clerk. In the given circumstances of this case, affidavit of the counsel himself which remained un-rebutted by reply/counter affidavit was enough to resolve the factual controversy of misplacement of files resulting into delay in tiling the appeals. Mr. Faisal Hanif, Advocate undertook the entire responsibility of filing appeals with a delay of one day and the reason assigned by him was not only unintentional but was also beyond his control. Learned counsel had no personal interest in lis thus his affidavit should have been believed which had been sworn even at the cost of exposing himself to penal consequences. Above all, reasons assigned by the learned Additional District Judge in support of the impugned order were illogical and could not be supported by the learned counsel appearing on behalf of the respondents.

5. Learned counsel appearing on behalf of the respondents attempted to have the civil revisions thrown out of Court by asserting that discretion vested in appellate Court in condoning the delay cannot be interfered in revisional jurisdiction of this Court and in this behalf placed reliance on the case of Muhammad Nasir Mehmud and others v. Mst. Rashidan Bibi (2000 SCMR 1013). Ratio of the erstwhile judgment of the Honourable Supreme Court is that where discretion vested in a Court has been exercised within the parameters fixed by law the same cannot be interfered but in the instant case, the discretion has not only been exercised arbitrarily but the same on the face of it was utilized fancifully. An order passed by overlooking documents on the file and contrary to facts apparent on the face of record, cannot be termed as a lawful -exercise of vested discretion. I accordingly hold that the judgments relied by the learned counsel for the respondents proceeded on altogether different facts/ circumstances and were of no help to the proposition propounded in this case.

6. For the reasons noted above, impugned judgments/ orders dated 24-9-2004 being patently tainted with material irregularity/illegalities, are not sustainable at law and thus deserve to be reversed. All the three revision petitions are accordingly allowed, the impugned judgments/orders dated 24-9-2004 are set aside and petitioner's applications under section 5 of the Limitation Act, 1908 are accepted by condoning the delay of one day in filing the appeals subject to payment of costs of Rs.5,000 in each case, with the result that all the three appeals by the petitioner shall be deemed to be pending before the learned Additional District Judge, Lahore for decision on merits in accordance with law. Parties are directed to appear before the appellate Court on 29-11-2006. S.M.B./D-11/L??????????????????????????????????????????????????????????????????????????????????? Petition accepted.