2006 PLP 1750 (CLC)

MUHAMMAD MUZAMMAL KHAN, J.

Instant civil revision assailed the judgment/order dated 19-6-2004 passed by the learned Additional District Judge, Faisalabad, whereby two appeals filed by Allah Rakha respondent No.1 were accepted and succession certificate issued in favour of the petitioners was cancelled.

2. Succinctly, relevant facts are that one Muhammad Sharif died on 18-9-1996 leaving behind an amount of Rs.82, 779.30 in his Bank Account with National Bank of Pakistan Ayub Research Branch Faisalabad. Petitioner No.1 filed an application for issuance of succession certificate claiming her self to be a legal heir along with Ilam Din and Muhammad Shafi with the claim that they are entitled to entire amount lying with the Bank in the name of deceased Muhammad Sharif. Respondent No.1 (Allah Rakha) moved an application before the trial Court that he being son of the deceased was entitled to the entire amount to the exclusion of Mst. Sharifan Bibi etc. who concealed this fact out of malice thus succession certificate issued in their favour may be cancelled. Allah Rakha based his claim on the succession certificate issued in his favour in the year 1998 by the learned Senior Civil Judge, Faisalabad. Petitioners also moved an application for rescission of succession certificate in the name of respondent No.1 on the ground that Allah Rakha was not son of Muhammad Sharif deceased.

3. Both the applications filed by the parties for cancellation for their respective succession certificates, were jointly tried by the trial Court and in view of controversial stance of the parties, the dispute was put to issues and recording of evidence. Evidence of the parties recorded in their respective applications was transposed in the applications by their adversaries with their concurrence. At the conclusion of trial, the learned Civil Judge seized of the matter decided both the applications against respondent No.1 with the findings that he was not son of Muhammad Sharif deceased vide order, dated 4-9-2002.

4. Respondent No. 1 aggrieved of the decision by the learned Civil Judge, filed two distinct appeals before the learned Additional District Judge where he succeeded as his appeals were accepted and he was found entitled to entire amount in the name of Muhammad Sharif, as his son. Succession certificate in the name of the petitioners was ordered to be cancelled whereas in the name of Allah Rakha respondent was allowed to hold the field, vide appellate judgment, dated 19-6-2004. The petitioners thereafter, on 29-12-2005 filed instant revision petition which was barred by limitation and they filed a separate application under section 5 of the Limitation Act, 1908 for condonation of delay in filing the civil revision on the ground that petitioner No.1 is an old lady of 85 years of age and his co-petitioner Muhammad Shafi has already died thus, the delay being not deliberate, may be dispensed.

5. I have heard the learned counsel for the petitioner and have examined the record, appended herewith. Undisputedly, limitation of 90 days, for filing a civil revision before this Court has been prescribed by section 115 of the C.P.C., 1908 and not by the Limitation Act, 1908. Section 5 of the Limitation Act, 1908 for condonation of delay, would have been available to the petitioner, had the limitation been provided by this enactment itself? Section 29(2) of this Act provided; that where any special or local law prescribed a period of limitation different from the one prescribed by First Schedule annexed therewith, provisions contained in sections 4, 9 to 18 and 22 shall only apply if those are not expressly excluded by special or local law and the remaining provisions shall remain excluded. Since limitation for filing civil revision was prescribed by a special statute i.e. C.P.C., section 5 of the said Act was not available to the petitioners for the prayed condonation of delay. While forming this view I have to my credit judgments in the cases of Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286; Islamic Republic of Pakistan through Secretary Ministry of Defence and others v. Masood Enterprises 2001 YLR 327 and Punjab Road Transport Corporation through District Manager PRTC D.G. Khan and another v. Muhammad Iqbal Lodhi and another 2003 CLC 1539.

6. In order to satisfy my judicial conscience, I have also examined the ground taken by the petitioners in their application under section 5 of the Limitation Act, 1908 for condonation of delay. According to them petitioner No.1 was an old lady of 85 years and her co-petitioner Muhammad Shafi has died, is not supported by any documentary proof and petitioner No.2(a) and 2(b) who are descendents of Muhammad Shafi were majors and whose incapacity to file a civil revision within limitation, has not been explained.

7. Record revealed that appeals filed by respondent No.1 were decided by the learned Additional District Judge, Faisalabad, on 19-6-2004 and the petitioners applied certified copies of memorandum of appeal and judgments/decrees etc. on 23-6-2004 which were prepared on 5-7-2004 and were ready for delivery on this date. Petitioner No.2(a) Muhammad Anwar son of Muhammad Shafi received the certified copies on 24-12-2005 i.e. after lapse of about 5 months and the civil revision was ultimately filed on 29-12-2005. Petitioner Muhammad Anwar who collected/received the certified copies was an employee of Agricultural University, Faisalabad and must be healthy person and could have received certified copies on their preparation and could have filed the civil revision within the period of limitation but his failure in this behalf has, in no manner, been explained. Mere old age of petitioner No.1 or death of Muhammad Shall was not enough and cannot be considered as a sufficient cause for the condonation prayed unless some incapacity/ disability had been attributed to petitioner No.1. According to my thinking, in presence of petitioner No.2 (a) and 2(b) even incapacity/ disability of petitioner No.1 would not support the petitioners in getting the condonation because they have not explained each day's delay, as per law laid down by the Honourable Supreme Court in the cases of 1975 SCMR 304 and Government of the Punjab through Secretary (Services), Services General Administration and Information Department Lahore and another v. Muhammad Saleem PLD 1995 SC 396.

8. Submissions of the learned counsel for the petitioners that the petitioners were not provided certified copies of the appellate decree sheet which according to him, was not prepared till today, cause delay in filing the civil revision, have not impressed me three two-fold reasons, firstly being that this plea has not been taken in application under section 5 of the Limitation Act, 1908 and secondly being that Appellate Court was not obliged to prepare decree in an appeal arising out of a dispute regarding succession certificate. The third reasons being that certified copies were not collected from the copying agency concerned for long 5 months and it is not case of the petitioners that they had been approaching the copying agency for supply of copies of the decree sheet as well. In this factual background, I feel no hesitation to hold that no sufficient cause for condonation of delay was made out even because 'in view of amended section 12 of the Limitation Act, 1908, Applicability of which is also doubtful to the case in hand, time requisite for getting certified copies could only be excluded till preparation of those.

9. For the reasons noted above, instant revision petition being barred by limitation and application under section 5 of the Limitation Act, 1908 being not maintainable, are dismissed in limine. F.B./S-112/L Petition dismissed.