1985 PLP 799 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑‑This appeal through leave of the Court is directed against judgment dated 22nd December, 1972 by the Lahore High Court in L. P. A . No. 146 of 1966 arising out of a land settlement case; whereby the respondents' plea of being prior temporary allottees having been accepted they were allowed the benefit of permanent allotment of land on their claim in preference to the appellants who had also raised similar pleas. It is not necessary to give all the details of the litigation culminating in the impugned judgment of the High Court as the leave to appeal was granted only on a limited point namely that an appeal filed by the respondents' side before the Deputy Rehabilitation Commissioner Lands against an' order of allotment made by an A.R.C. in favour of the appellants, was allowed notwithstanding the fact that it was time‑barred. It was, therefore, contended by the learned counsel appearing on behalf of the appellants that "the appeal before the Deputy Rehabilitation Commissioner was allowed illegally" because the Deputy Rehabilitation Commissioner Lands "neither noticed the delay nor condoned it" and further that "this aspect of the case has not been noticed by the learned Judges of the Letters Patent Bench". Learned counsel for the appellants has reiterated the same argument which was advanced at the time of the grant of leave to appeal as noted above and has in support thereof cited case law: Syed Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner, Lahore and others P L D 1964 S C 260; wherein it was held that when a settlement appeal had been dismissed as barred by limitation it was the duty of the revisional authority to notice the question of limitation when setting aside such an appellate order. Settlement Authority and another v. Mst. Akhtar Sultana P L D 1976 S C 410; wherein it was held that if the High Court when deciding a writ petition in its Constitu tional jurisdiction failed to notice the question of laches it was open to the Supreme Court to examine the same. Khawaja Shaiq Hassan v. Rai Ahmad Noor and others 1983 S C M R 677; wherein the point of limitation was raised regarding an appeal, before the appellate forum at more than one occasion including by way of a written application pleading the bar of limitation. Not only this a specific ground was also raised in this behalf before the revisional authority. In this background in the above circumstances relying on the case of Syed Azmat Ali it was held that the appellate and the revisional forums had failed to perform an important duty with regard to the examination of the point of limitation. Nazar Din and others v. The Secretary, Rural with powers of the S.C.(L), Punjab, Lahore and others 1983 S C M R 1188 this case related to the question of limitation with regard to filing of a petition for leave to appeal in, this Court. In so far as the aforenoticed judgments go, it is no doubt the duty of the forum/Court wherein a matter is instituted, to examine the question of limitation even if not raised, as a requirement of the law of limitation. But same cannot be said about the higher forums as that would also depend upon the attitude of the party which wanted the! question of limitation vis‑a‑vis the lower forum, to be agitated at the higher forum. If it fail to agitate it before the higher forum, it would not then be essential, on its own part, for the next higher forums (the third and the fourth and so on) to examine the question suo motu. The law on this aspect stood settled in the case of Khairati and others v. Aleem‑ud‑Din and another P L D 1973 S C 295 wherein it was held as follows: " It does not mean that where a trial Court has given a finding on the question of limitation against a particular party, he can still, without filing an appeal or cross‑objection, challenge that finding in the higher Court of Appeal. "The Appellate Court is certainly bound to consider whether the appeal is within time or not, but it is not called upon to consider whether the suit has been rightly held to be within time, if no appeal or cross‑objection is filed." Same view was reiterated in a recent judgment: Ghulam Muhammad and others v. Malik Abdul Qadir Khan and others P L D 1983 S C 68; wherein it was observed as follows: "It is not necessary to go into the question whether the suit was not time‑barred because this point was not urged on behalf of the petitioners during the hearing of the revision petition in the High Court. Learned counsel has argued that even though it is not conceded by him that the point was not pressed in the High Court, it was also the duty of the learned Judge in the High Court himself to examine the question of limitation. Firstly because it is so required by section 3 of the Limitation Act and secondly because the plea was raised before the trial Court, the appellate Court and also in the grounds of revision petition. No doubt one trend in old authority was that every point relatable to limitation could be urged in the higher forum even if not pressed earlier but this Court finally resolved the controversy in Khairati and 4 others v. Aleem‑ud‑Din and another P L D 1973 S C 295." The ratio of the above two decisions is that it would he necessary for the appellate or revisional forum, where the Limitation Act is applicable, to examine under section 3 of the Limitation Act whether the proceedings instituted before itself are within limitation. But it will not be under any legal obligation like the one visualized by section 3' of the Limitation Act to do so if the plea of limitation raised before it related to the institution of the original case/suit in the trial forum and/or the institution of any other matter before a lower forum. Thus if a question of limitation is raised before the High Court in connection with the institution of an appeal before itself beyond the period of limitation it will be the duty of the High Court to examine the same notwithstanding the fact that the other party did not raise or having raised, did not press the bar of limitation. But if the argument is that the High Court did not examine the question of limitation relatable to the filing (beyond limitation) of a suit/case before a lower forum then the High Court would not be obliged to examine the same unless it is raised before it because section 3 of the Limitation Act does not place any such responsibility on the High Court regarding the proceedings of the lower forum‑‑when exercising its power of review in appellate or other jurisdiction. The same would apply to the discretionary writ juris diction. This however, it has to be pointed out, would not mean that if in the circumstances of such a case the High Court examines the question of limitation regarding the institution of the proceedings before a lower forum without the same being raised before it, then it would be committing any illegality‑‑the emphasis being only on the point that it is not under a legal duty to do so. If therefore it fails to do so when the party concerned did not raise it and the argument is advanced in this Court, that the High Court should have examined it suo motu, as legal duty, it (this Court) would not be obliged to interfere. When faced with the above position of law declared in the case of Khairati and Ghualm Muhammad the learned counsel was unable to Dress the appeal any further. He however requested for enlarging the scope of the leave granting order so as to include the merits of the case in addition to the question of limitation. We refused to grant the permission in view of the fact that it besides being an old appeal, related to a settlement matter, which was brought before the High Court more than twenty years ago. In the light of the above discussion this appeal fails and i: dismissed but there shall be no order as to costs. M.Z.M. Appeal dismissed,