2006 PLP 693 (SCMR)

MIAN MUHAMMAD AJMAL, J.

Leave to appeal is sought against the judgment of Lahore High Court, Lahore dated 11-1-2002, whereby Civil Revision No.1501 of 2000 of the petitioner was dismissed and concurrent judgments and decrees of the two Courts below were upheld. Brief facts are that the petitioner-Cantonment invited tenders for construction of Retaining Wall near I.J. Colony, Kharian Cantt. The respondent's tender was accepted, the agreement was executed on 28-2-1982 and work order was issued on 1-3-1982. Dispute arose between the parties, consequently, the respondent filed a suit for recovery of Rs.1,65,802 against the petitioner which was resisted by the petitioner and finally it was decreed by the trial Court vide its judgment dated 18-3-1996. Feeling aggrieved, the petitioner filed appeal which too met the same fate vide judgment of the Appellate Court dated 15-12-1999. The petitioner then filed a petition under section 115 of the Code of Civil Procedure along with an application under section 5 of the Limitation Act. Learned counsel for the respondent before the High Court raised a preliminary plea that the revision petition be dismissed as time-barred. The learned Judge in Chambers of the High Court dismissed the revision petition as well as the application for condonation of delay holding as under:-- "(5) The contention of the learned counsel for the petitioner that the judgments and decrees rendered by the Courts below should be treated as without jurisdiction for the reason that the respondents should have resorted to the settlement of the dispute through arbitration, has no substance in the facts and circumstances of the present case inasmuch as the remedy for the petitioner in such an eventuality was an application under section 34 of the Arbitration Act before the learned trial Court, instead the petitioners participated in the proceedings, contested the suit and after due trial the judgment was rendered by the learned trial Court which was maintained by the learned Appellate Court. It is too late for the petitioner to assail the judgments of the Courts below on this plea. In view of Allah Dino's case (supra) provisions of section 5 of the Limitation Act are not applicable to a revision petition, filed under section 115 of the Code of Civil Procedure. The preliminary objections, raised by the learned counsel for the respondent, has thus, substance and upheld. As a result of the above C.M. 2/C of 2000 as also the revision petition is dismissed."

2. We have heard the learned counsel for the parties and have gone through the record of the case. The learned Judge in Chambers of the High Court has rightly observed that the petitioner was estopped to raise the plea that the respondent should have invoked the arbitration clause instead of filing suit for recovery as the said plea was not substantiated by his own conduct who participated in the suit for recovery and the appeal arising therefrom and for the first time raised such plea before the High Court. The revision petition before the High Court was admittedly time-barred and no, plausible explanation could be offered in the High Court for the condonation of delay, as such, the learned Judge in Chambers was right to dismiss the same as barred by time. The learned counsel failed to point out any legal infirmity or flaw in the impugned judgment warranting interference by this Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973.

3. For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave refused. M.H./C-24/SC???????????????????????????????????????????????????????????????????????????????????? Petition dismissed