1999 PLP 3182 (MLD)

Ch. Abdul Razzaq Kamboh for Appellants. Nemo for Respondents Nos. 1 and

2. Muhammad Rafiq Ch. for Respondents Nos. 3 to 7 Muhammad Saleem for Respondent No. 8 Date of hearing: 7th November, 1997. The facts giving rise to the present appeal, briefly stated, are that Haji Sardar Muhammad Amin predecessor-in-interest of the appellants filed a petition under section 11, of the Punjab Waqf Properties Ordinance (Ordinance IV of 1979), for declaration that Notification, dated 5-4-1961 bearing No. 3(533)-Auqaf-60 issued by the Chief Administrator of Auqaf was illegal and ineffective as against his rights as a lessee in respect of land measuring 7 Kanals, 6 Marlas and 28 sq. ft bearing Khasra Nos. 263, 264, 274, 275, 267 and 268 situated in the area of village Pakki Thathi near Dholanwal Multan Road Lahore as per register Haqdaran-e-Zamin for the year 1985-86 and the allotment of certain plots by respondent No. 2 to respondents Nos. 3 to 8 was also illegal and ineffective.

2. It was claimed in this application inter alia that this land was owned by Akbar Ali etc. who leased it out to Haji Sardar Muhammad Amin for a period of 99 Years vide lease deed in writing, dated 3-3-1961. The lessee obtained physical possession of this land, constructed a pacca boundary wall around it and four pacca rooms and two cattle shed besides obtaining water, electricity and telephone connections, but on 6-11-1986, the officials of respondent No. 2 tried to demolish the construction raised by him, thus, obliging the lessee to file it civil suit in which he obtained a stay order which was confirmed till such time that on 27-3-1991 the Lahore High Court held that the civil Courts had no jurisdiction in the matter and the proper remedy was to file a petition under section 11 of the Waqf Ordinance.

3. Haji Sardar Muhammad Amin, thus, filed this petition but as he died during the pendency of these proceedings, his L.Rs were brought on record and the petition was accordingly amended.

4. This matter was hotly contested by respondent No. 2 before the learned Additional District Judge Lahore who rejected this petition on 4-12-1995 after holding that it was barred by time. He, however, left the parties to bear their own costs.

5. Feeling aggrieved, the appellants (successors-in-interest of Haji Sardar Muhammad Amin) have filed this F.A.O.

6. Both the parties have been heard at considerable length. The learned counsel for the appellants has relied on what has been laid down in Muhammad Siddique and others v. Auqaf Department Punjab through Chief Administrator and another (1989 S C M R 1683) for asserting that even if it be assumed for the sake of arguments that the proceedings were barred by time, it was open for tire Court to see whether the law could not at all come to the assistance of the petitioner-appellants on merits. The learned counsel for the respondents hay, however, met this contention by contending that the judgment relied upon by the learned counsel for the appellants cannot be of any assistance to the appellant, because the Supreme Court had only granted leave to appeal to consider whether law could not at all come to the assistance of the petitioners in so far as tire hearing of the case on merits, at least once, is concerned and could the Supreme Court dispense justice in that behalf, if not any other Court, on account of sonic technical constraints. I find myself to agreement with the learned counsel for the respondents because the learned counsel for the appellants has not at all bothered to see as to what finally happened in the matter in which leave to appeal was granted. Moreover, there can be no cavil that it is only the Supreme Court which can dispense justice in certain matters irrespective of technical constraints and this function cannot be assumed by any other Court including the High Court. If matter is otherwise barred by the time under any provisions of law or if the party coming to the Court fails to show that he has come to the Court within the period of limitation prescribed, therefore, by the first schedule to the Limitation Act, the same shall be dismissed although limitation has not been set up as a B defence. That is the intention of law as contained in section 3 (ibid). The delay, if any, also cannot be condoned by the District Courts under section 5 of the Limitation Act in a matter under West Pakistan Waqf Properties Ordinance, as held in Elahi Bakhsh v. Chief Administrator Waqf Property (1982 S C M R 160). The result is that I find this appeal without force and it is accordingly dismissed. No order as to costs. Q.M.H./M.A.K./M-1093/L Appeal dismissed.