P L D 2006 Peshawar 156 (PLP)

MUHAMMAD RAZA KHAN, J.

This judgment shall also dispose of the connected C.R. No.45 of 2003 as both the revision petitions have been filed against a single judgment and identical questions of law are involved in both these petitions.

2. The facts in brief are that a civil suit was filed by Muhammad Ayaz Khan and his brother Muhammad Mukhtiar Khan in the year 1972 for declaration to the effect that certain land, stated in the head note of the plaint, measuring about 100 Kanals, 2 Marlas belonged to the plaintiffs and the pro forma defendants Nos. 8 to 13 as the legal heirs of the late Muhammad Nawaz Khan Kundi and that the entries in the revenue record relating to the title of defendants Nos. 1 to 7 were wrong, which are liable to be corrected. There was a prayer for perpetual injunction as consequential relief. This suit passed through various phases and courts, and finally vide impugned judgment and decree of the learned District Judge, Tank dated 30-11-2002, the appeal filed by the legal heirs of the defendant No.1 was accepted, the judgment and decree of the learned Senior Civil Judge, Tank dated 11-3-2000 was set aside and the suit of the plaintiffs was dismissed. Simultaneously the cross-objections were also dismissed. This judgment dated 30-11-2002 has been challenged in these two revision petitions. The first one filed by Abdul Waheed Khan and his brother Abdul Halim Khan was presented in the Court on 4-3-2003 whereas the connected revision petition by Mumtaz Khan and others (being the legal heirs of the plaintiffs) was moved on 27-3-2003.

3. At the time of hearing these revision petitions, the learned counsel for the respondents raised a preliminary objection that both the revision petitions were filed beyond the period of limitation prescribed in this behalf. He explained his view by stating that section 115, C.P.C. did not originally contain the limitation for filing of a revision petition by a party. However, with effect from 1992, an amendment was made and a proviso was added prescribing a period of ninety days for filing of the revision application by the parties to the suits. He further added that under section 12(2) of the Limitation Act, the exclusion of time was provided for certain specified remedies like appeal and review but the application for revision was not included therein and so, the period required for getting the certified copies of the orders and documents could not be excluded from computing the total period of ninety days required under proviso to section 115(1), C.P.C. He further added that. when the limitation period is prescribed by a law other than the Limitation Act, the general principles of exclusion and condonation under the said Act are not applicable. Therefore, it was concluded that both the revision petitions were late by four (4) days and twenty-seven (27) days respectively and are liable to be dismissed.

4. The learned counsel for petitioners Abdul Waheed etc. pointed gout that even if the entire period of getting the certified copies is not excluded from computation of time for filing revision petition, the period of three days required for getting the copies as per second proviso to subsection (1) of section 115, C.P.C. shall have to be considered. Thus by excluding the day on which the impugned order was passed and the period of three days required under the said proviso for the supply of certified copies and thereafter calculating the period of ninety days for the filing of the revision petition, his petition was within time, although on the last day thereof.

5. The learned counsel for the petitioners in C.R. No.45 of 2003 argued that the general principle of exclusion of time required for getting the certified copies of the documents has to be applied to the revision petition despite the fact that section 12(2) of the Limitation Act does not specifically mention such type of petitions for the said concession. The reason for such a concession is the fact that under the concept of administration of justice, it is the responsibility of the supervisory Courts to take notice of illegalities and irregularities committed by the Courts under their jurisdiction and the power of revision to be exercised by the supervisory Courts is without the restriction of time. In certain cases, the Courts may take suo motu notice of certain decisions and revise the impugned judgments and decrees. He also pointed out that the parties should not be penalized for the lethargic practices of the Courts, staff whereby considerable delays occur in the supply of certified copies of documents. He pointed out that since the entire relevant documents are to be annexed to the revision petition, therefore, without the availability of such copies, the revision petition cannot be entertained and if the time for getting copies thereof is not excluded, it will amount to negate a right of the petitioner and shall defeat the ends of justice. While referring to certain case-law, he further pointed out that the provision of ninety days was not obligatory but it was regulatory in nature because by looking at the entire proviso, if the copies of the impugned judgments are not delivered within three days and the revision petitions are not decided within three months, the similar obligation of the petition to file the application within ninety days may also be treated as advisory and regulatory in nature and not obligatory one.

6. Before elaborating the point in controversy, it will be appropriate if the relevant provision of law is reproduced for proper analysis: Vide first proviso to subsection (1) of section 115, C.P.C. it was laid down that: "provided that, where a person makes an application under this subsection, he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court." The second proviso lays down that: "provided that such application shall be made within ninety days of the decision of the subordinate Court which shall provide a copy of such decision within three days thereof and the High Court shall dispose of such application within three months." Thus the said two provisions have introduced a new element in the earlier concept of exercise of revisional jurisdiction suo motu. A right was, therefore provided that any of the parties to the proceedings may also file an application for revision but the application should be supplemented with all the relevant documents and the application has to be moved within the period specified therein while examining both the said provisos together, there appears to be a little bit of justification in the arguments of learned counsel for the petitioners that since the entire record has to be annexed to the application, therefore, the time required for obtaining the certified copies thereof has to be logically excluded. However, this slight justification is diluted by the second proviso whereby not only a time schedule for the petitions is provided for making the application within the specified time of ninety days, but there are further directions to the subordinate Court and the revisional Court, the former has to provide the copies expeditiously within a period of three days and the latter has to decide the revision within a period of three months. Since the misuse of the provision of law was intended to be discouraged, therefore, the restrictions were imposed in the amended provision of law, so that on the one hand the proceedings in the original Court may continue and on the other hand, the revision petition, if filed, should be decided within the minimum possible time. 7.? However, one thing is noticeable that for the purpose of review or appeal, the period prescribed by Limitation Act is thirty days and in view of the small span of period provided therein, the period required for getting the certified copies of the documents was excluded by section 12(2) of the Limitation Act and the concept of condonation of delay was incorporated in section 5 thereof. However, for the purpose of revision, an extraordinary long period of ninety days has been provided by the legislature with the clear intention that the party should be able to get the copies of the required documents and to seek the revisional remedy within the said prescribed period. The spirit of providing period of ninety days is to facilitate the petitioner with sufficient time to make the preparation and to file the petition within the specified time after obtaining the copies of the necessary documents within the same period and without asking for the exclusion of time.

8. In the second proviso, as reproduced hereinabove, there are three prescriptions with regard to time. The Court against whose interim order, an application for revision is expected to be made, has to deliver the copies within three days. The argument that this delivery should be automatic and free of cost is neither logical nor reasonable. There are so many revisable orders and it is practically impossible for the Courts to issue certified copies free of cost within three days of each of the order to each party, the number whereof may be from two to several hundreds and the Court is not likely to note which of the party was expected to file the revision petition. Thus as held in the case of Faizullah and others v. Rustam and others PLD 2003 Pesh. 217, it is for the person intending to file revision petition to apply for the certified copies and the Courts shall issue the copy within the minimum possible time.

9. There is another time prescribed for the revisional Court to take a decision within three months. This is the desire of the legislature and every effort has to be made to comply therewith. However, in several precedents relating to the period prescribed in the statute for the disposal of a matter by the appropriate Court, it has been constantly held that such a provision is always regulatory in nature. It is desirable that such type of cases should be decided within the minimum possible time but the failure to abide by the said time schedule does not operate as the ouster of jurisdiction.

10. The period prescribed for the filing of the revision petition is ninety days in the same proviso. When a time is prescribed in terms of days and not in months, the legislature intends its strict compliance. It may be noted that in the same proviso, for the filing of application, the period is prescribed as ninety days but for the disposal of the application, the period is three months. Both the periods appear to be identical in the normal interpretation, but in terms of its legislative drafting, the word "three months" may be treated as directory and regulatory in nature whereas the period of ninety days has to be taken as obligatory. In certain cases, the period of three months may be 91 or 92 days and the specification of ninety days by the legislature is with a purpose of eliminating the possibility of filing the petition one or two days late.

11. The crux of the above discussion is that the period of ninety days has to be specifically observed in its letter and spirit being obligatory and this period cannot be extended.

12. Section 12(2) of the Limitation Act provides that "in computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for the review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded". Thus the exclusion in the computation of time is restricted to the appeal, application for leave to appeal and review petitions. Revision petition is a specific phenomenon which is not stated in the said proviso. When the law provides a facility for a particular action, it has to be extended to the same action and cannot be generally applied to other similar actions H because, otherwise, the very words restricting the application of a particular facility to a particular mode becomes redundant or surplusage which is never the intention of the law.

13. As observed hereinabove, while providing extraordinary long period of ninety days for the filing of the revision petition, there was no justification to exclude the period required for getting the copies over and above the period already prescribed. Thus, the revision petition has to be filed by a person within the prescribed period of ninety days including the period spent in getting the certified copies of the documents and orders. In the case-in-hand, the request for the certified copies was made on 30-11-2002 and the copies were delivered on 27-1-2003. A period of more than one month was available to the petitioner to have filed a revision petition within time. In the connected revision petition, the application was made on 30-11-2002 and the copy of the impugned judgment was delivered on 21-1-2003 and a period of more than one month was available, to the said petitioners as well, for filing the revision petition within the prescribed period.

14. With regard to the argument relating to default on the part of the Court, it may be stated that if the certified copy is not available by the last date, the application could be filed without a copy thereof because thereby the petitioner will be complying with the legal requirements and his petition cannot be negated for want of the certified copy. However, in such a case of extraordinary delay, if the copies are delivered beyond the period of ninety days, the petition filed a day or two thereafter can be justified for condonation (not under section 5 of the Limitation Act but under the inherent powers of the Court) but when the copies are available within a period of ninety days, no concession can be extended to a petitioner who had not made effort to seek his remedy. It may also be added that there was no application for condonation of delay.

15. In view of the foregoing discussion, both these revision petitions are held to be beyond the period of ninety days as per second proviso to subsection (1) of section 115, C.P.C. and both the petitions are accordingly dismissed. No order as to costs. S.A.K./94/P???????????????????????????????????????????????????????????????????????????????????????? Revision dismissd.