1997 PLP 702 (MLD)

These are two civil revision applications filed under section 115, C.P.C. directed against the common judgment and decree dated 23rd July, 1990, passed by V Additional Sessions Judge Karachi‑South in Civil Appeals No.36 and 37 of 1986, Mr. Anwar Khan Ghauri v. Major Iftikhar Ahmad Khan and another whereby judgment and decree passed in Suit No.1799/74 M. Anwar Khan Ghauri v. Major Iftikhar Ahmad Khan and Suit No. 469/69 filed on 26‑3‑1969 M Anwar Khan Ghauri v. Major Iftikhar Ahmad Khan were set aside and appeals were allowed. Brief facts of the case are that respondent No.2 M.Anwar Khan Ghauri first filed Suit No.469/69 against the respondent No.1 Major Iftikhar Ahmad Khan only for declaration that respondent No. l Major Iftikhar Ahmad Khan was his Benamidar and had obtained the allotment of Plot No.24 situated on B‑2 Street, Block‑5, in Defence Officers Cooperative Housing Society Limited, Karachi, admeasuring 1000 sq. yds. whereas M. Anwar Khan Ghauri the respondent No.2 was real owner of the said plot having paid the consideration for the allotment in the sum of ks.5,100 to the Society. In the meanwhile during the pendency of the above suit in the month of March/April, 1974, the applicant Mrs. Zahra Zaidi was offered the abovesaid plot for sale by the respondent No. l Major Iftikhar Ahmad Khan on the ground that he was allottee of the same by virtue of allotment DS/K/A‑2802 dated 8‑4‑1965 who after verifying the title of respondent No. l agreed to purchase the said plot for the sum of Rs.52,000 for that an agreement for sale dated 13‑4‑1974 (Exh.16) was executed between the applicant and respondent No.1 when the latter also paid balance of sum of Rs.5,825 to the Society out of the sale consideration of Rs.52,000 by a bank draft dated 13‑4‑1974 whereas the payment of Rs.6,825 was made by the applicant in cash to the respondent No.1 and sale consideration amounting to Rs.45,175 out of total Rs.52,000' was paid to respondent No. 1 Major Iftikhar Ahmad Khan by the applicant Mrs. Zahra Zaidi. After compliance of necessary formalities sub‑lease in Form‑A and thereafter physical possession of the said plot was delivered to the applicant by the Society on 6‑6‑1974 and in the meanwhile building plan was got approved by the applicant for the purpose of raising construction from the Cantonment Board and he commenced the construction of bungalow thereon. The respondent No.2 M. Anwar Ghauri filed another Suit No.1799/74 in the Court of III‑Senior Civil Judge, Karachi‑South on 12th August, 1974, for the relief of possession of the said plot wherein applicant Mrs. Zahra Zaidi was also impleaded as defendant in the suit stating therein that respondent No.2 M. Anwar Ghauri was the real owner of the said plot. The respondent No.2 in the earlier Suit No.469/69 also impleaded the applicant Mrs. Zahra Zaidi as defendant in the suit. The applicant and respondent No. l Major Iftikhar Ahmad Khan filed written statement and resisted the suit wherein they denied the contents of the plaint made in the both suits. Both suits were consolidated on 17‑7‑1979 and after recording the evidence of the parties both suits were dismissed on 9‑9‑1981 by the II‑Senior Civil Judge, Karachi. Against the above‑said judgment and decree passed by learned 11‑Senior Civil Judge, Karachi, respondent No.2 M. Anwar Ghauri preferred Appeals Nos.36 and 37 of 1986 which were heard and allowed by the V‑Additional District Judge, Karachi‑South, as per impugned judgment and decree dated 23rd July, 1990. I have heard Mr. Yousuf Rafi, learned counsel for the applicant, and Mr. Muhammad Ali Sayeed, learned counsel for respondent No.2 and none has appeared for respondent No. l though he was duly served by publication. Mr. Muhammad Ali Sayeed learned counsel for respondent No. l has contended that the revision applications were hopelessly time‑barred therefore the said plea of limitation be heard and decided first before the other pleas raised in the revision application by the learned counsel for the applicant are heard. Mr. Yousuf Rafi, learned counsel for the applicant has argued that since there is no article in the First Schedule to the Limitation Act specifically providing period of limitation for filing a revision application in the High Court therefore in view of the circumstances of the present case, the revision applications could not be considered to be time‑barred. Mr. Yousuf Rafi has further argued that till 1994 view of the Hon'ble Supreme Court of Pakistan was not that the revision should be filed within 90 days and further that office also did not raise any objection. He has placed reliance upon Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678). Mr. Muhammad Ali Sayeed, learned counsel for respondent No.2 has argued that the revision applications have been filed about fifteen days short of a year therefore the same were hopelessly time‑barred keeping in view the period of 90 days for filing of revision petitions which has been followed by this Court. He has placed reliance upon Government of N.‑W.F.P. through Chief Secretary and 3 others; v. Abdul Malik (1994 SCMR 833), Abid Hussain and others v. Aziz Fatima. and others (PLD 1995 SC 399) and Lahore Municipal Corporation v. Syed Nazir Hussain Shah and others (PLD 1982 Lahore 461) in support of his contention. In the, instant case judgment and decree of the First Appellate Court was passed on 23‑7‑1990, application for certified true copy was made on 30‑7‑1990 and certified true ‑copies of judgment and decree were delivered on 19‑8‑1990 while the revisions were presented in this Court on 1‑8‑1991. This would show that the revision applications were presented after eleven months and eleven days from the date when the copies of judgment and decree were delivered to the applicant or her advocate. Admittedly, there is no cause shown for the period exceeding beyond ninety days in filing the revision petitions, so also no affidavit has been filed to show the sufficient cause or justification of not preferring the revision petitions within reasonable time after the receipt of the certified true copies of judgment and decree In Manager, Jammu and Kasmir, State Property in Pakistan v. Khuda Yar and. another (PLD 1975 SC 678) case the Hon'ble Supreme Court of Pakistan at page 698 has observed:‑‑‑ "The principle laid down in these authorities is that revision petition filed beyond the unprescribed limitation of 90 days could also be entertained if the Court was satisfied as to the reasons for the delay. In the instant case, we find that an appeal was filed in the High Court having been subsequently discovered to be incompetent a request was made to the Court to treat the same as a revision with some additional ground. The explanation offered was that the right of the petitioner to file a second appeal on account of dismissal in default of the first appeal had been extinguished, by the gross professional misconduct and collusive behaviour of the counsel against whom proceedings were being initiated. It was stated at the Bar by Mr. S.M. Zafar that in fact proceedings had already been initiated against the advocate, Considering the allegation in the context of successive dismissals in default of the appeal as well as the application for its restoration, we are satisfied that this offered a satisfactory explanation of the laches and it is presumably for this reason that the learned Judge in the High Court did not raise any objection on this account. Since the Limitation Act is not applicable to a revision, therefore, the Court was under no obligation to consider the question of limitation, moreso when the point was never raised by the Caveater before us. It may also be relevantly mentioned in this context that no rule has been framed by any High Court under its rule‑making powers prescribing limitation for revision. It is a well- known principle of the administration of justice that no litigant should be made to suffer at the hands of the Court. We have, therefore, no hesitation in overruling the objection taken on the ground of limitation." From the abovecited case it would appear that the Court i to be satisfied as to the reason for the undue delay and in the cited case reasons for the delay were stated whereas in the instant case no reason has been assigned or argued except that there was no fixed limitation for filing revision. In Government of N. W.F.P. through Chief Secretary and 3 others v. Abdul Malik (1994 SCMR 833) case at page 839 the Hon'ble Supreme Court of Pakistan has held that:‑‑ "The abovequoted extracts from the above last two cases of this Court indicate that this Court has tacitly approved the practice that a civil revision is to be filed within 90 days and in case of delay, the same is to be explained. Though while considering the question of delay in filing of a civil revision, the Court will be more liberal as compared to the approach in an application for condonation of delay of the limitation period provided for in the First Schedule to the Limitation Act for any legal proceedings. It is also evident that a High Court can exercise suo motu revisional power even after the expiry of the above period of 90 days as there is no practice obtaining for the exercise of suo motu revisional power within a particular period. We are in respectful agreement with the above two judgments of this Court. We are also inclined to hold that though there is no period prescribed in the First Schedule to the Limitation Act for filing a civil ‑revision but it is to be filed after the expiry of 90 days provided the petitioner makes out a good case for condoning the delay. If we were to take a contrary view, it will prolong the agony of the adversary who succeeded in the Court below as the losing party will be able to file a revision application at any time at his sweet will. This will run counter to the basic concept of justice, i.e. litigation should be finalised as early as possible without any delay. We, are further inclined to take the view that a High Court can exercise revisional jurisdiction suo motu at any time without being bound by any period of limitation provided it fosters the cause of justice and the dictates of justice so demand and not in. every case. " In the cited case referred above it would be clear that delay of filing civil revision beyond 90 days is to be explained and justified by the applicant and if good cause is shown for the delay, the same could be condoned and the said principle .has been laid down keeping in view the concept of justice, i.e. litigation should be finalised as early as possible without any delay otherwise "Sword of Democles" would hang over the head of the successful party because the losing party could file a revision application at any time at his sweet will. In the instant case no cause what to say of good cause for condoning the delay of more than eight months beyond ninety days has been shown by the applicant. It cannot be said that there has been practice of this Court that revision application could be filed beyond ninety days as a matter of course. As far as in 1975, as held in the above case‑law (PLD 1975 SC 678) it was held that if revision is filed beyond ninety days' period then one has to satisfy the Court as to the reasons of delay for not filing within the said period. Next case cited is Abid Hussain and others v. Aziz Fatima and others (PLD 1995 SC 399) wherein the Hon'ble Supreme Court of Pakistan considered the cases of Karamat Hussain and others v. Muhammad Zaman and others (PLD 1987 SC 139), Riasat Ali v. Muhammad Jaffar Khan and others (1991 SCMR 496) and Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar (PLD 1975 SC 678) and finally observed: "However, this does not mean that this Court intended to extend such period of ninety days without placing any onus upon the petitioner to explain the delay. Since the circumstances of the present case did not admit of any concession which could be shown by the High Court in favour of the petitioners in this behalf, it appears that the discretion exercised by the learned Judge of the High Court was proper and thus no exception can be taken to the same." In the cited case the counsel for the petitioner failed to offer any plausible explanation in respect of delay as the ground of refiling the revision was delayed because the revision was kept by him, in order to enable the parties to arrive at a compromise but when same was not possible the revision was filed again which ground was not considered to sufficient cause. In Lahore Municipal Corporation v. Syed Nazir Hussain Shah and others (PLD 1982 Lahore 461) case my learned brother Judge in Chamber at page 464 has observed:‑‑ "There is also considerable force in the contention of the learned counsel for the respondents that since this revision petition has not been filed within reasonable period of the acceptance of the appeal by the learned Additional District Judge, and no explanation is forthcoming for the delay, the petitioner is not entitled to any relief in exercise of the revisional jurisdiction of this Court under section 115, C. P. C." It is true that there is no period of limitation provided for filing civil revision but it would appear from the cited case‑law that the superior Courts have as a matter of practice followed and applied ninety days' period of limitation and have also entertained civil revision after ninety days on showing sufficient cause for the delayed period. In the instant case, no sufficient cause has been shown in the civil revision application or in the affidavit, thereby vested right has been created in favour of the respondent No.2, which could not be taken away without sufficient cause being shown by the applicant for the delayed period. In the circumstances contention of learned counsel for the applicant has no force and merit. In view of the stated facts and the case‑law cited above, the revision application having been filed after more than eight months exceeding beyond ninety days without showing any good cause for the delay, are time‑barred hence the same are dismissed with no order as to costs. H.B.T./Z‑5/K Revision application dismissed.