P L D 2001 Karachi 396 (PLP)

(2) Whether the plaintiff No.2 was only a benamidar and the real owner of the shops in question was defendant No. 1 late Ramzan Khan? (3) Whether the suit as framed is maintainable in law? (4) Whether the reliefs claimed are‑ maintainable under sections 42 and 56 of the Specific Relief Act read with section 108 of Sindh Local Government Ordinance, 1979? (5) Whether the plaintiff has any legal right of character to file the above suit? (6) Whether the suit plot is not reserved for public part? (7) Whether the lease of the suit plot has been obtained by the defendant No.4 legally? (8) Whether the lease is sustainable in law? (9) To what relief the plaintiff is entitled? (10) What should the decree be?

4. Parties led evidence on these issues and the applicant and respondent No.2. poured in a number of documents. On consideration of evidence on record the learned III‑Senior Civil Judge dismissed the suit on 17‑9‑1997 and passed the decree on 20‑9‑1997 as stated earlier.

5. Out of the plaintiffs, the applicant preferred this revision application and presented the same on 1‑4‑1998. At Katcha Peshi level the admission of the application was contested on the ground that it was barred by time. Learned counsel for the parties were allowed to file written arguments as the matter was being adjourned from time to time and on 5‑10‑2000 the learned counsel present in Court instead of oral arguments relied on the written arguments already filed by them.

6. The eminent point involved in the case is the delay in filing of the revision application. The judgment was passed on 17‑9‑1997 and the decree on 20‑9‑1997 and copies thereof were applied for on 27‑11‑1997 which were made ready on 29‑11‑1997 and delivered the same day. As such, 3 days 27th to 29th November, 1997 shall be deemed to be the time spent obtaining the copies. This period is to be deducted from the time between passing of the decree (20‑9‑1997) and presentation of the revision (i.e 1‑4‑1998) which comes to 192 days and after deduction of 3 days the revision application shall be deemed to have been filed after 189 days. The limitation prescribed under 2nd proviso to subsection (1) of section 115, C.P.C. is 90 days, therefore, the revision application is barred by 99 days. The advocate for respondents in his written objections dated 23‑4‑1998 filed on 28‑4‑1998 has specifically taken the plea that the revision is barred by time and is liable to be dismissed. No explanation has come forward to justify this inordinate delay in filing the application. Even in the written arguments filed earlier on behalf of the applicant on 16‑10‑1998 no explanation was offered in this regard, whereas the advocate for respondent No.1, in his written arguments dated 28‑10‑1998, emphatically raised the plea that the revision application was barred by time. The plea taken by the applicant, however, is that under section 115, C.P.C. the Court can exercise suo Motu jurisdiction for which no limitation is prescribed.

7. The learned counsel for applicant, in support of his plea, has placed reliance on the cases reported as Deputy Commissioner v. Abdul Salam PLD 1993 Quetta 121; 1992 CLC 21; Government of N.‑W.F.P. v. Abdul Malik 1994 SCMR 833 and Municipal Committee v. Aziz Elahi PLD 1970 SC

506. The advocate for respondents has relied on the principles laid down in the authorities Ajbar Khan v. Said Hakim Khan 1999 CLC 362; Nasir‑ud‑Din v. Muhammad Bashir 1999 MLD 2999 (Lahore), Province of Punjab v. Muhammad Hassan 1999 MLD 1084 (Lahore), Allah Yar v. Faiz Ahmed 1999 CLC 713, Sultan Muhammad v. Muhammad Ashraf 1991 CLC 269 (Lahore) and Ali Asghar v. Qadeer Ahmed 1993 CLC 1869.

8. It is the normal rule that in case an application/appeal is filed beyond the prescribed period of limitation, each and every day is to be explained satisfactorily to make out a plausible ground for condoning the delay.

9. Strictly speaking under section 5 of the Limitation Act, an appeal or an application for revision .can be admitted after the period of limitation prescribed subject to satisfactory explanation by the applicant, but the statutory precondition, as legislated, is that the aforesaid provision will have its effect only when this section is made applicable to such proceedings, and in this context it goes without saying that this section of the Limitation Act has not been made applicable to section 115, C.P.C. It is, perhaps, for this reason that the applicant has not filed any application for condonation of delay in filing the revision application and now at this stage he has sought relief by taking the plea that the Court may exercise the jurisdiction suo Motu.

10. Nevertheless, on the point of limitation, it may be pointed out that in the cases reported as Mirza Ali Asghar v. Qadeer Ahmed 1993 CLC 1869, Province of Punjab v. Muhammad Hassab 1999 MLD 1084, Nasir‑ud‑Din v. Muhammad Bashir 1999 MLD 2999 and Ajbar Khan v. Said Hakim Khan 1999 CLC 362 the revision applications were filed beyond the prescribed period of limitation, and no convincing reason was advanced for condoning the delay in filing the revision applications, they were therefore dismissed as barred by time. The same principle is applicable to the instant case and there can be no hesitation in holding that the present revision application is barred by time.

11. The remaining authorities on the point of limitation are not applicable to the instant case as they relate to revision application filed before amendment made in section 115, C.P.C., fixing ninety days for filing such application.

12. As far the question of suo Motu exercise of jurisdiction is concerned the legal aspect was discreetly examined in Government of N.‑W.F.P. v. Abdul Malik 1994 SCMR 833, the leading case on the point of exercise of suo Motu jurisdiction under section 115, C.P.C. The revision application was in that case filed on 25‑2‑1990 that is to say before the amendment of section 115, C.P.C. prescribing limitation of 90 days. The Hon'ble Supreme Court observed that though there was no period prescribed in the 1st Schedule to chef Limitation Act for filing revision application but it was to be filed diligently within a period of 90 days and the same could also be filed after expiry of 90 days provided the petitioner made out a good case for condoning the delay and if a contrary view was to be taken it would prolong the agony of the adversary who succeeded in the Court below as the loosing party will be able to file a revision application at any time at his sweet‑will As regards point of exercise of revisional jurisdiction suo Motu, it was observed that a High Court could exercise such jurisdiction at any time without being bound by any period of limitation provided it fosters the cause of justice and dicta of justice so demanded and not in every case. Ultimately, the vague averment for filing revision beyond period of 90 days was not accepted as sufficient for condoning the delay and as regards the merits it was observed that the counsel for appellants could not point out any infirmity in the reasoning of the trial Court and the application was dismissed.

13. The view taken in Deputy Commissioner v. Abdul Salam PLD 1993 Quetta 121 was also the same. It was held that the High Court has suo Motu jurisdiction under section 115, C.P.C. to examine the validity of impugned order keeping in view the scope of the exercise of such jurisdiction within the four corners of section 115, C.P.C.

14. The authority Mehsool Committee v. Aziz Elahi PLD 1970 SC 506 is not directly connected with the plea of exercise of suo Motu revisional jurisdiction by the High Court. In the said case one of the important questions was as to whether revision would not be competent when the order passed by the Court of first instance is appealable under the Code. It was held therein that normally where the applicant had no other remedy left, the High Courts were inclined to take liberal view but where the case was one which did not clearly fall under the terms of section 115, C.P.C. no revision could be entertained in any event. The aforesaid authority was, inter alia, considered in United Bank v. Yousuf Haji Noor Muhammad PLD 1987 SC 636 and it was held that having regard to all the circumstances of the cited case the High Court ought to have entertained the revision application and set aside the order impugned before it whereby the plaintiff was non‑suited for trivial formality.

15. The principles laid down in these authorities make permissible the exercise of revisional jurisdiction suo motu at any time if the same fosters the cause of justice and dicta of justice so demand but not in every case. In the instant case the applicant has taken the ground that the question of transfer of the suit was pending before the Chief Justice of the High Court which ought not to have been overlooked by the Trial Court and that Hasina Begum was one of the parties to the Suit No.372 of 1983, therefore, the admission made by Ramzan Khan, the predecessor‑in‑interest of respondents Nos. l and 2 that the property belonged to Hasina Begum could not be ignored. These contentions touching the merits of the case would involve reappraisal of the entire evidence for the purpose of drawing a conclusion other than that reached at by .the trial Court.

16. The trial Court at its level has thoroughly appraised the evidence and under Issue No.l has referred to the admission made by the applicant in his examination‑in‑chief that no sale‑deed was registered in connection with the purchase of 20 shops which is the subject‑matter of this case. The trial Court has also considered the admission that the whole plot of land in dispute measuring 625 sq. yd. stood regularised in favour of late Ramzan Khan, the predecessor‑in‑interest of respondents Nos. l and 2 on 25‑5‑1972 and no objection to such regularization was filed either by the applicant himself or by Mst. Hasina Begum after the same came to their knowledge in August, 1972. The applicant has, however, placed reliance on admission made by Hasina Begum in her written statement but said Hasina Begum was later ‑on transposed and impleaded as plaintiff No.2. Her admission, therefore, would not make a ground for creation of right or title in favour of applicant much against the lease deed admittedly executed in favour of Insha Allah Begum, the respondent No.2, by the competent authority namely K.M.C., respondent No.2. Para. 2 of the plaint also refers to such lease. The Trial Court has finally come to a conclusion that Mst. Hasina Begum was not the owner of the market and no lease deed was issued in her name and no documentary evidence about the sale and purchase of the shops in question was produced at the trial or placed on record. It has, accordingly, been concluded that the applicant failed to prove the main controversial fact that he purchased the shops in question from Mst. Hasina Begum, the plaintiff No.2. Further it has been held under Issue No.8 that the lease was sustainable in law. The trial Court under Issue No.5 has referred to the fact that it has come on record that on 12‑9‑1970, by a declaration, Mst. Hasina Begum announced that she was a Benamidar and not owner of the property. Again under Issue No.7 after examining the evidence on record the trial Court has observed that the allotment in favour. of Hasina Begum was cancelled in 1972 and the lease in the name of Mst. Insha Allah Begum was granted in the year 1982.

17. The overall assessment of the evidence made by the trial Court and the findings arrived at by him apparently do not call for an interference by this Court and as such it cannot be said that a grave miscarriage of justice has occurred and/or that the trial Court has exercised jurisdiction illegally or E with material irregularity. This is not a case where suo motu exercise of revisional jurisdiction be made and the delay in filing the revision application beyond prescribed period of limitation be ignored. Consequently the revision application is dismissed in limine. These are the reasons for the short order passed on 5‑10‑2000. Q.M.H./M.A.K./I‑24/K Petition dismissed.