1985 PLP 1606 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑‑By these two petitions review is sought of this Court's consolidated judgment, dated 10‑4‑1978 by which the two appeals filed by the present petitioner were dismissed and accordingly these petitions are being disposed of by this common order.

2. The dispute between the parties relates to a house property situated at Shad Bagh, Lahore, which is owned by the respondent. The latter agreed, by means of written agreement, dated 22‑12‑1963, to sell the said property to the petitioner for a consideration of Rs.15,

000. Out of the sale consideration the petitioner paid a total sum of Rs.12,000 in accordance with the terms of the agreement and in lieu thereof was put into possession of the property. However, the sale transaction could not be completed owing to disputes that arose between the parties resulting in multiple litigation. It is not necessary for the present purposes to go into the details of the various litigations. Suffice it to say that the respondent obtained an ex parte eviction order against the petitioner on the allegation that she was his tenant and succeeded in execution of the said order to dispossess her on 16‑9‑1966. On an application by the petitioner the learned Rent Controller set aside the ex parte eviction order and directed the respondent to restore possession of the house to her. The respondent's plea in resistance of the order for restitution failed before the Rent Controller and also his appeal was dismissed by the District Court, Lahore. He, therefore, filed a second appeal before the Lahore High Court.

3. In the events that happened the petitioner, besides resisting her illegal eviction, also filed a suit against the respondent for specific performance of the agreement of sale. The suit was dismissed by the trial Court and the appeal filed by the petitioner also failed on the ground of time bar. The petitioner then filed a second appeal in the Lahore High Court, with application for condonation of delay in filing the appeal before the High Court. The two second appeals, the one earlier filed by the respondent and the one filed by the petitioner were taken up for hearing together by the High Court. But the learned Judges of the Division Bench dismissed the appeal of the petitioner as time‑barred and as a consequence held that in the face of the decree dismissing the petitioner's suit for specific performance of the agreement, the petitioner no longer had any claim to remain in possession of the property. Respondent's second appeal was accordingly allowed, holding that he was the owner of the property in lawful possession.

4. Leave was granted to the petitioner in respect of the adverse decision in both the second appeals made by the High Court but the appeals were dismissed by the judgment sought to be reviewed in these petitions.

5. The crucial question upon which the case turns is whether the remedy of the petitioner by way of appeal was barred by limitation, in that, her rights flow from the agreement for sale in respect of which her suit for specific performance was dismissed. As long as the decree for dismissal of that suit is not set aside, she cannot successfully resist the claim of the respondent to remain in possession of the property in which his title for the time being subsists.

6. Therefore the submission on behalf of the petitioner was that the High Court erroneously assumed that the second appeal of the petitioner was submitted with a delay of one day after the period of limitation. In this connection the facts were that the second appeal was presented in the High Court alongwith an application for pauperism on 10‑2‑1969. By a consent order on 25‑9‑1970, however, the prayer of the petitioner to appeal as a pauper was dismissed and she was allowed to pay the court‑fee within one month, which was duly complied with on 23‑10‑1970.

7. The argument of the petitioner is that the appeal having been presented within time on 10‑2‑1969 and the delay for the payment of court‑fee having been condoned by the consent order, the appeal could not be dismissed as time‑barred. It was pointed out that the assumption that the appeal was barred by one day crept in because the High Court had erroneously taken the appeal to have been presented on 12‑2‑1969, whereas the period for filing the appeal expired on 10‑2‑1969, with the result that it was time‑barred by one day for which no sufficient ground was held to have been made out by the petitioner. Learned counsel submitted that in fact the appeal was presented on 10‑2‑1969 which fact is sufficiently borne out from the cover note maintained in the High Court. He, therefore, urged that the decision of this Court under review proceeding on the same basis requires to be corrected as it is an error apparent on the record. If he succeeds in this prayer, and it is held that the second appeal in the High Court was not barred by limitation, the decision in the second appeal filed by the respondent would automatically be set aside.

8. After hearing the learned counsel at length, we, however, do not find substance in this contention. In the first place the fact that the appeal was filed in the High Court on 10‑2‑1969 was a fact within the knowledge of the petitioner and a matter of record. Therefore, it was the duty of the petitioner to have urged this ground of objection in the main appeal disposed of by the judgment under review. There is no reason to hold that this fact has been discovered subsequently. Consequently having negligently or otherwise not urged this point at the main hearing although it was early available to her, the petitioner is not entitled to seek indulgence of this Court for consideration of a new point for the first time at review stage. Secondly, we have noticed that the judgment of the High Court does not proceed solely on the basis of erroneous assumption that the appeal was presented on 10‑2‑1969. The High Court's decision is based on additional grounds, for instance, on the finding that the application for leave to appeal in forma pauperis was not made in good faith but only in order to gain time to pay court‑fee. The presentation of an appeal, as is now well established, is not proper without affixing court‑fee. In the face of finding by the Court that the application for leave to appeal was not presented in good faith, it is difficult to hold that the appeal was properly presented on 10‑2‑1969.

9. For the foregoing reasons, we find no substance in these review petitions and accordingly dismiss the same. A . A Review declined.