1976 PLP 283 (SCMR)

MUHAMMAD GUL, J.‑‑‑This petition for special leave from the judgment of the Lahore High Court in Regular Second Appeal dated 25‑2‑1975 is barred by 167 days. A prayer for condonation of delay is, made on the ground that after the dismissal of the petitioner s appeal by the High Court pursuant to the legal advice the petitioner moved tire review, which how ever, was refused ors 30-6‑1975. Accordingly, the time consumed by proceedings for review is sought to be excluded from the computation of the period of limitation. From the copy of the order rejecting the review petition, it appears, that the petitioner sought review can a ground which he had never canvassed in the course of the hearing of the stain appeal. That apart, copy of the review petition is not placed on the file to show whether having regard to provisions of Order XLVII, rule 1, C. P. C. review was sought on grounds which in the circumstances of the case, could be considered as substantial. And legal advice by counsel per se has never been accepted as adequate ground for condonation of delay. Accordingly, there is no grounds for extension of limitation. Nevertheless, we allowed the petitioner's learned counsel to argue the case on merits. By means of Notification No. 2531‑C & T‑1‑22‑56 dated the 7th September 1956 issued by the Provincial Government under section 41(1) of the Punjab Town Improvement Act, 1922, there was acquired certain area situate within Rawalpindi city for a Scheme called its T. B. Hospital Dussehra Ground Scheme. The area acquired under the notification included Khasra No. 2656 which belonged to Non-Muslim evacuees. By a registered deed dated 17‑3‑1967. that is to say about 11 years after the acquisition of the area. Ghulam Nabi and Ghulam Mustafa who were entered as occupancy tenants purported to sell certain building site forming a part of Khasra No. 2656 to the petitioner herein who with the sanction of the Municipal Committee Rawalpindi has since built a house over the site sold to him. After completion of the building, tale petitioner received a notice for the demolition of the same. This obliged him to sue the improvement Trust, for perpetual injunction restraining it from demolishing his building. The main ground on which relief way sought was that Khasra No. 2656 was not included in the scheme. The trial Court gave effect to that plea and decreed the suit mainly on the basis of decision in an earlier suit No. 652 of 1961 (Muhammad Sharif v. Improvement Trust, Rawalpindi). 1n that suit a learned Civil Judge, Rawalpindi, came to the conclusion that Khasra No. 2656 "appeared to have been included in the aforesaid notification wrongly". No appeal was taken against that judgment which was treated by the learned trial judge in the instant case as binding on the Trust, being a party to that Suit. On appeal however by the Trust the judgment of the trial Court ways reversed by the learned District Judge whose decision has been maintained by the High Court by the impugned judgment. Learned counsel for the petitioner argued that the Judgment in Civil suit No. 652, of 1961 was not only admissible under section 43 of the Evidence Act, but is conclusive so far as the Trust is concerned. Learned counsel did not refer to any precedent case in support of the proposition canvassed by him. Section 43 of the Evidence Act makes judgment admissible only if it is "a fact in issue, or is relevant under some other provision of this Act". Learned counsel conceded that the judgment in the previous suit, per se was not a fact in issue in the instant case nor could he point out to any other section of the Evidence Act under which that judgment could be treated as relevant to the instant case. Rather it manifest from the first illustration appended to the section that merely because that the respondent was a defendant in the earlier suit and the controversy in the suit related to another portion of Khasra No. 2656 mould hardly make the judgment relevant to the instant case. Learned counsel also argued that the acquisition proceedings were void ab initio because no notice as contemplated by section 38(1)(6) of the 1922 Act was issued to the vendors of the petitioner who were occupancy tenants in the land. As pointed out already, the main ground of attack in the suit was the judgment of the Civil Court. Rawalpindi in the earlier case; no issue eras raised with regard to the validity of the acquisition proceedings. Therefore, the learned Judge in the High Court as also the brat appellate court were right to rely upon section 42(2) of the Act to treat the notification as conclusive evidence of the fact that the Khasra number in question was properly acquired for the purpose of the scheme. We are therefore satisfied that there is no merit in this petition either. Accordingly, this petition is dismissed both on merits as also as barred by limitation. Petition dismissed.