P L D 1966 Azad J & K 5 (PLP)

He has cited Sher Muhammad v. Khuda Bux (P L D 1961 Lah. 579) wherein Shabir Ahmad, J. held that "such an application is governed by Article 181 of the Limitation Act and the period of limitation is 3 years". The learned counsel's assertion is that the application made by the plaintiff is time‑barred. He has tried to distinguish the unreported judgment in Civil Appeal No. 41 of 1955 "Malak Hussain v. Muhammad Khan and others" by saying that in this case Muhammad Khan had instituted a fresh suit in the year 1953 and that the file of the old suit instituted during the Dogra regime had not been brought out. The learned counsel has referred to an unreported Single Bench judgment of our High Court in Civil Revision No. 26 of 1952 "Mst. Bevi v. Ch. Faiz Talab" decided on 21‑12‑52 and to another un reported Single Bench judgment in Civil Revision No. 19 of 1955 "Alif v. Imam Bakhsh" decided on 19‑1‑1956 in support of his contention that the application is time barred. It has been argued by Mr. Saraf, the learned counsel for the respondents that the order consigning the file to the Record Room is an administrative order and not a judicial order and, therefore, neither revisable nor appealable. The facts in Civil Revision No. 26 of 1952 were that the respondent Faia Talab obtained a money decree against the petitioner Mst. Bevi from the Court of the Sub‑Judge, Mirpur, in Dogra regime. In execution of the decree the respondent got certain animals attached. The judgment‑debtor did not claim the animals as belonging to her. An objection was, however, filed by a third person to the effect that the animals attached belonged to him. Before the objection could be decided, the War of Liberation started. The Civil Courts functioning in the Dogra regime ceased to exist. The Azad Kashmir Government appointed its own Sub‑Judges. The first application made by the respondent in order to revive proceedings in execution of his decree was dated 10th November 1951 which was beyond three years. The Sub‑Judge dismissed the application as time barred. The District Judge on appeal set aside the order of the Sub‑Judge and directed the execution of the decree. The then learned Chief Justice, on appeal, was of the view that the respondent had slept over his right for a number of years and that the application made by him for restoration of the execution proceedings was time‑barred. We have not been able to lay our hands on the other Single Bench unreported judgment referred to by the learned counsel. A similar point arose before a Division Bench in Civil Appeal No. 41 of 1955 "Malak Hussain v. Muhammad Khan and others" and the learned Judges constituting the Bench observed that:‑

"All civil cases pending in the Courts of the Dogra regime were deemed to be pending in the Courts of the Azad Kashmir and it was the duty of the successor Courts to carry on these cases as if they had been instituted in them. The Sub‑Judge of Mirpur should have issued notices to the parties in the present case but as the file could not be traced, no action was taken by the Courts. The plaintiff had no control over 'the actions of the Courts and even the Court was prevented from taking action owing to unavoidable cir cumstances over which it had no control. The suit remained pending because the records were mishandled and not properly taken care of. It was not due to the negligence of the plaintiff that the suit could not be proceeded with. Under these circumstances, the plaintiff is entitled to deduct the period under which no action was taken by the Courts on his previous suit." Section 2 of the Azad Kashmir Courts and Law Code, 1948 which is relevant to the present case is reproduced below: "All things done under any law in force on the date of commencement of this Code shall be deemed to be in every way valid: Provided that all proceedings pending on the date of the enforcement of this Code shall be transferred to the Courts prescribed by this Code, if they have not already been taken in such Courts." The Azad Kashmir Courts and Law Code, 1948 was revised in the year 1949 and was replaced by the Azad Jammu & Kashmir State Courts and Law Code of 1949. Section 2 of the Code of 1948 was retained in the Code of 1949 and is reproduced below: "All acts done under any law in force on the date of commencement of this Code, shall be deemed to be in every way valid: Provided that all proceedings pending on the date of enforcement of this Code, shall be transferred to the Courts set up, under this Code." The legal position after the War of Liberation was that the cases pending during the Dogra regime were deemed to be pending in the Courts set up by the Azad Kashmir Government. The Court of the Munsiff, Mirpur, had been abolished and the Court of the Sub‑Judge, Mirpur shall be called the successor Court and the files pending in the Court of the Munsiff, Mirpur shall be deemed to be pending in the Court of the Sub‑Judge, Mirpur. It was the duty of the Court to bring out all pending files and take further proceedings therein. It was the duty of the Court to fix dates of hearing and to issue notices to the parties. In Malak Hussain's case referred to above the old file could not be traced, therefore, he instituted a fresh suit which should be deemed to have been a reconstruction of the old record and should not have been deemed to be the institution of a fresh suit. However, we agree with the observation of the Division Bench that all the civil cases pending in the Courts of the Dogra regime were deemed to be pending in the Courts of Azad Kashmir and it was the duty of the successor Court to carry on those cases as if they had been instituted in them and that the Sub‑Judge, Mirpur should have issued notices to the parties. We are in respectful dis‑agreement with the view of the learned Single Judge expressed in Civil Revision No. 26 of 1952 Mst. Bevi v. Faiz Talab" decided on 21‑12‑1952. The plaintiff when making an application under section 151, C. P. C. was not asking for any relief, he was simply pointing out to the Court its negligence and reminding it of a duty that it owed to the litigant public in bringing out the old files instituted in the Courts during the Dogra regime and after fixing dates of hearings issuing notices to the parties. The Limitation Act does not govern such an application and there is no limitation prescribed for such an application. It is un fortunate that section 2 of the Azad Jammu & Kashmir Courts and Laws Code was not brought to the notice of the learned Judges deciding the earlier cases. The learned counsel for the respondent has referred to an unreported Single Bench judgment of our. High Court given in Civil Review No. 3‑A/62 "Shamas Din v. Mst. Sahib 'Noor" decided on 27‑4‑64 wherein it was observed that "the pre‑emptor cannot be made to suffer on account of a mistake of the Court": The facts of this case were that in a pre‑emption case, second appeal, the learned Chief Justice had stayed the depositing of the pre‑emption money till further order but then the appeal was decided by Muhammad Sharif, J. and this order of the learned Chief Justice staying the deposit of the pre‑emption money not having been brought to his notice, no fresh period for the payment of the purchase money was fixed. The learned Single Judge was then moved by an application under section 151, C. P. C. as also on an application of review for fixing a new period for depositing the pre‑emption money and it was observed that this was a fit case for the exercise of the inherent powers of the Court under section 151, C. P. C. and also a fit case where the powers of review may also be exercised. It was also observed that the Court having stayed the payment of the pre‑emption money and having not fixed a new period within which such deposits were to be made into Court, there was an error apparent on the face of the record and it could also be said that the Court had failed to exercise jurisdiction vested in it under law. Shabir Ahmad, J. has also held in Painda Khan v. Tiwana (P L D 1962 Lah. 92) that "an act of the Court should not prejudice any party and that a pre‑emptor could not be penalised for making payment out of the Court in compliance with the implied directions given in the decree that the pre emption money can be paid outside the Court though Order XX, rule 14 provides that the purchase money was to be paid into Court." There is ample authority for holding that litigants should not be allowed to suffer on account of a mistake of the Court and we hold accordingly. Since by the operation of law (section 2 of the Azad Jammu' & Kashmir Courts and Laws Code) cases instituted in the Courts of the Dogra regime were deemed to be pending and to have been transferred to the Courts set up by the Azad Kashmir Government it was the duty of the Court to take action on such files. If the Court fails to do its duty and some party applied that action be taken on his file, there is no limitation prescribed for such application. The revision petition is dismissed. Costs shall abide the event. S. A. H./S. Q. Petition dismissed.