1997 PLP 551 (MLD)

Brief facts of the case are that the respondent filed suit No.457/91 against the applicants for possession of shop No.22 situated at Jamia Masjid, Gole Market, Nazimabad, Karachi and for damages for the sum of Rs.32,000 and further for mesne‑profit at the rate of Rs.3,000 per month from 1‑5‑1991 till possession is delivered to the respondent and further for permanent injunction restraining the applicants from letting out the shop and damaging the same. The applicants Nos. 1 and 2 filed an application dated 2‑12‑1991 under Order 7, Rule 11, C.P.C. which was dismissed by Ist Senior Civil Judge, Karachi Central, as per order dated 30‑1‑1992 against which revision application No.5/1992 was preferred before the learned District Judge, Karachi‑Central which was heard and disposed of by IInd Additional District Judge, Karachi Central on 27‑8‑1993 in terms of order passed. Applicants No.1 and 2 again moved an application dated 26‑7‑1993 under order 7, rule 11, C.P.C before 1st Senior Civil Judge, Karachi‑Central which was heard and dismissed on 20‑9‑1993 against which Civil Revision Application No.16/93 was preferred before the learned District Judge, Karachi‑Central, which was disposed of by learned IInd Additional District Judge, as per order dated 22‑1‑1994 whereby the applicants were allowed to withdraw the same and file before this Court in view of the amendment as per Ordinance No.33 of 1993 notified on 13‑10‑1993 whereby jurisdiction of the District Court to hear revision was taken away, hence the present revision has been preferred before this Court. I have heard Mr. M.A. Hassan Malik, learned counsel for applicants and Mr. Raja M. Jalil Ashraf Janjua, learned counsel for respondent, who has appeared on pre‑admission notice, and perused the impugned orders and annexures filed with the revision petition. This revision is fixed today for hearing C.M.A. 607/95 arid for Katcha Peshi. Preliminary objection has been raised by learned counsel for respondent that this revision application has been filed after 19 months from the date of impugned order dated 20‑9‑1993 therefore the Civil Revision was liable to be dismissed in limine, as under proviso 2, subsection 1 of section 115 of C.P.C., revision application is to be filed within 90 days of the decision of subordinate Court but in the instant case the revision application has been filed after 19 months, therefore, the same was hopelessly time‑barred. He has further contended that applicant No.3 Auqaf Department has neither signed the memo of revision application nor has empowered the learned counsel for applicants to prefer the revision on their behalf, therefore, impleading applicant No.3 without their consent is not warranted by law and it be considered to have not been filed by applicant No.3. He has further contended that the respondent has been paying rent to the applicant No.3 and has sought to relief against them therefore suit filed by respondent would not be barred by any of provision of Sindh Waqf Properties Ordinance, 1979. Learned counsel for applicants has argued that impugned order dated 20‑9‑1993 dismissing the application under Order 7, Rule 11, C.P.C. is nullity in the eye of law, for which, no limitation is prescribed under the law, hence the revision was within time. He has contended that respondent did not implead Auqaf Department in this suit initially but subsequently impleaded the Auqaf Department and the filing of suit against the Auqaf Department was barred by sections 10 and 23 of the Sindh Waqf Properties Ordinance, 1979, and refusal to reject the plaint filed by respondent as per impugned order is illegal and it amounted to nullity. Next contention of the learned counsel for applicants is that Article 181 of Limitation Act wherein period of three years has been provided would be applicable in the revision petition. He has placed reliance upon 1989 SCMR 506 and 1986 SCMR 962 in support of his contentions. In the instant case, learned counsel for applicants has not contended that the Court of Ist Senior Civil Judge, Karachi‑Central has no jurisdiction to entertain an application under Order 7, Rule 11, C.P.C. or to pass an order thereon which would mean that the competency of the lower Court has not been challenged by the learned counsel for applicant. The only grievance of the learned counsel for applicant is that the order passed was not legal which would 'not amount that the said order was nullity in the law so as not to bring the same within the mischief of law of limitation. Merely because an order is passed in violation of provision of law, it would not follow that the order passed was nullity. Reference is made to M/s. Jama Industries Ltd. v. Karachi Municipal Corporation PLD 1975 Kar. 26 wherein my learned brother Judge in chambers held that the order would not be nullity merely for being passed in violation of some provisions of law unless it is shown that such violation rendered proceedings coram non judice and the decision would be void if Court assumed the jurisdiction where none existed and the decision would only be voidable and would be duly effective unless the same is set aside where the Court has acted wrongly in exercise of jurisdiction. In the circumstances it cannot be said that the impugned order is nullity, even impugned order could not be said to be illegal or improper as the Court has jurisdiction to decide the matter and it decided the application under Order 7, Rule 11, C.P.C. in accordance with law. Admittedly, the respondent after the disposal of revision No.5/92 by the IInd Additional District Judge impleaded the Auqaf Department as party but has not sought any relief against the Auqaf Department. Perusal of the application under Order 7, Rule 11, C.P.C. moved by the applicants would show that the applicants no where state that plaint/suit was barred by section 10 or section 23 of the Auqaf Ordinance. "

10. Appeal and finality.‑‑ (1) Any person evicted under the provisions of section $ or aggrieved by an order of termination of lease or resumption of tenancy made under section 9, may, within sixty days of such eviction or within thirty days of the order of termination of the lease or resumption of tenancy, prefer an appeal to the Administrator‑General and the Administrator‑General may, after giving such person an opportunity of being heard, confirm, modify or vacate the order made by the Administrator under section 8 or 9. (2) If there is no appeal against an eviction under section 8 or against an order of termination of lease or resumption of tenancy made under section 9 the eviction, termination of lease or resumption of tenancy, as the case may be shall be final, and when there is an appeal, the decision of the Administrator‑General in appeal shall be final. " Section 23 reads: "

23. Protection of action taken under this Act.‑‑No suit prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done under this Act or the rules made thereunder. " The above provisions cited do not bar the filing of suit filed by respondent considering also that the applicants even did not state about the above Provisions in the said application moved for rejection of plaint. The respondent has neither challenged the order of the Auqaf Department nor any act alleged to be committed by any of the officers of Auqaf Department therefore the plaint/suit could not be said to be barred by any of the said provisions of Ordinance therefore the contention of the learned counsel for applicants has no merit that the impugned order was nullity or illegal, liable to be set aside in this revision. So far the question of limitation, there is no dispute that as per proviso 2 of subsection (1) of section 115, C.P.C. period of limitation of 90 days is fixed for filing revision application whereas the applicants have fifed a revision application on 9‑8‑1995 against the impugned order dated 20‑9‑1993 passed by Ist Senior Civil Judge, Karachi‑Central. Even if the period spent by the applicants from the date of filing of revision application No. 16/93 till it was withdrawn on 22‑1‑1994 is excluded then also the application for revision having been filed after nineteen months would be time‑barred and no good cause has been shown for not filing the same within the period of limitation fixed under the law, Reference is made to Government of N.‑W.F.P. through Chief Secretary and others v. Abdul Malik 1994 SCMR 833 and Abid Hussain and others v. Aziz Fatima and others PLD 1995 SC 399 wherein their Lordships of Supreme Court have held that : "Delay of filing civil revision beyond 90 days is to be explained and justified by the applicants and is 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 finalized as early as possible without any delay otherwise sword. of Democles would hang over the head of successful party because the losing party could file a .revision application at any time at his sweet will." In the instant case, no good cause has been shown for condoning the delay of more than one year. The contention that Article 181 of Limitation Act will be attracted in this case has no merit in view of clear provision about the period of limitation mentioned under proviso 2 of subsection (1) of section 115, C. P. C, In view of aforesaid reasonings and case law the civil revision application is hopelessly time‑barred, hence the same is dismissed in limine, consequently, C.M.A. No.607 of 1995 is also dismissed. H.B.T./M‑46/K Revision petition dismissed.