P L D 1975 Lahore 1362 (PLP)

The petitioner filed a revision petition against the order of the Additional Settlement Commissioner (Land), Sheikhupura, dated 6‑3‑1967 before the Settlement Commissioner on 30‑5‑1967. A preliminary objection was raised before the Settlement Commissioner by the respondent that the petition was barred by rime and no application/affidavit was appended for condonation of delay. The Settlement Commissioner held that the contention was correct and dismissed the revision petition as barred by time. The petitioner has come up to this Court under Article 98 of the late Constitution of the Islamic Republic of Pakistan.

2. Learned counsel for the petitioner has submitted that the order challenged of the Additional Settlement Commissioner was dated 6‑3‑1967, and, the revision petition was filed on 30‑5‑1967. The period of limitation provided for filing a revision petition under section 19 of the Displaced Persons (Land Settlement) Act, 1958 is sixty days, therefore, the revision petition would appear to be barred by time, and, it was on that assumption that it was dismissed as such. It is pointed out, however, that under rule 8 of the Displaced Persons (Land Settlement) Rules, 1959, an application for revision is required to be filed accompanied by a certified copy of the order sought to be revised. Therefore, it is submitted by the learned counsel that the petitioner had to obtain a certified copy of the order sought to be revised. For this purpose, be made an application on 1‑4‑1967. The application was returned on 13‑4‑1967 on the ground that the file was not available. The petitioner refiled the application on 15‑4‑1967 pointing out that the file was with the Ahlmand of the Court, from where it should be requisitioned and certified copy supplied. The certified copy was supplied to the petitioner on 9‑5‑1967. Learned counsel for the petitioner submits that if this period, spent in obtaining the certified copy of the order, was excluded, the revision petition would be well within time. That being so, there was also no reason to file an application or affidavit for condonation of delay.

3. Learned counsel for the respondent has submitted that a preliminary objection on the point of limitation was raised before the Settlement Commis sioner and the latter, after hearing the parties, had come to the conclusion that the revision petition was barred by time. Therefore, it is submitted that this Court has no jurisdiction in the matter.

4. A perusal of the impugned order of the Settlement Commissioner dated 30‑5‑1967 would show that the objection of limitation was found to be correct, but, there is no consideration or discussion as to how the contention had been found to be correct. The petitioner, in para. 8 of his grounds of revision had stated that the revision petition was within time after excluding the period spent in obtaining the certified copy. The respondent authority seems to have taken into account the date of the order sought to be revised viz. 6‑3‑1967, and the date of filing of the revision petition, being 30‑5‑1967, and found that the revision petition was filed after sixty days, and, therefore, the same was barred by time‑ The authority did not take into consideration the fact that in para. 8 of the grounds of revision petition, it had been stated that the revision petition was within time after excluding the period spent in obtaining certified copy of the order sought to be revised, and, that the certified copy was required to be filed with the revision petition which would otherwise be incomplete and incompetent. If the authorities take time in supplying the certified copy, that cannot be counted against the litigant.

5. Section 29(2) of the Limitation Act, 1908 provides that "where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period was prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law . . . . ; (a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as and to the extent to which, they are not expressly excluded by such special or local law".

6. The Displaced Persons (Land Settlement) Act, 1958, is undoubted a special law and has been so held in Syed Muhammad Alam v. Syed Mehdi Hussain and 2 others (P L D 1970 Lah. 6), that "no argument was raised, nor, the B position was contested that the Displaced Persons (Land Settlement) Act falls within the category of special local law. We have examined this question with particular reference to the provisions in that Act, relating to the allotment of land, falling in the pools to displaced persons and the permanent settlement of such land, and are of the opinion that it is, undoubtedly, a special law". The special statute prescribed for an application a period of limitation different from the period prescribed therefor by the First Schedule to the Limitation Act, 0908 in so far as that the special statute, the Displaced Persons (Land Settlement) Act, 1958, provides under section 19 a period of sixty days for filing an application of revision, whereas, none is prescribed in the Schedule to the Limitation Act, 1908. Therefore, section 29(2) of the Limitation Act, 1908 will be applicable. Under clause (a) of the aforesaid section 29(2), section 12 of the Limitation Act, 1908, relating to exclusion of time in obtaining certified copy, would be applicable, unless that were to be expressly excluded by the special statute. The Special statute i.e. C the Displaced Persons (Land Settlement) Act, 1958, however, does n ,t contain any provision expressly excluding section 12 of the Limitation Act, 1908. Therefore, section 12 of the Limitation Act, 1908, would be applicable in reckoning the period of limitation if section 12, is, otherwise, applicable in its terms. Section 12 of the Limitation Act, 1908 provides in subsection (2) that "in computing the period of limitation prescribed for an appeal, an appli cation for leave to appeal and an application for a 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 he excluded." This provision on the face of it does not apply to revisions. The reason obviously is that under the general law, no period of limitation is prescribed for filing a revision; therefore, the question of reckoning the period of limitation does not arise. The matter remains within the discretion of the revisional authority to entertain a revision petition or not. However, an application for revision under section 19 of the Displaced Persons (Land Settlement) Act, 1958, partakes of the nature of an appeal inasmuch as that on revision petition, the revisional authority may call for the record for the purpose of satisfying himself "as to correctness, legality or propriety of such order, and may pass such order in relation thereto as he thinks fit." In the case of Syed Ali Abid Zaidi and others v. Deputy Settlement and Rehabilitation Commissioner, Gujranwala and others (P L D 1967 Lah. 836) it was observed that :‑ "The revision under section 19(i) of the Act, is, therefore, vitally different on the above three principles from the revisions under the general law. This revision, in substance, partakes more of the character of an appeal (or to be more precise a second appeal) and a right of a personal audience can well be implied in it. The nature of a similar revision came up for examination before the Supreme Court in Tahir Alt and others v. Chief Judge, Karachi Small Causes Court and another P L D 1963 S C

147. That was a case of a revision under Karachi Rent Restriction Act (VIII of 1953), and in it a question arose as to what was the real nature and scope of the revision and, thoroughly , called a revision, was it not really in the nature of an appeal so as to attract the provisions of section 12(2) of the Limitation Act, 1908. The following passage in the judgment of Fazle‑Akbar, J., who wrote the leading judgment, at pages 149‑ 51 is quite instructive :‑ "It was contended on behalf of the appellants that in view of the provisions of section 12(2) of the Limitation Act, the time during which they were procuring a copy of the order of Rent Controller was not to be reckoned as part of the period of 30 days which was prescribed by subsection (1) of section 15 of the Act. To this, it was answered on behalf of the respondents that section 12(2) was not attracted to revision. Hence, the short question for consideration in this appeal is whether the expression `appeal' in section 12(2) has been used in a restrictive sense so as to exclude a revision petition. Upon construction of the word 'appeal' used in section 12(2) there has been divergence of judicial opinion. Some of the Courts in India adopted a restricted construction of the word 'appeal' and laid down emphatically that it does not include revision. On the other hand, some of the Courts construed the expression in a broader sense. There is, however, plainly no such preponderance in either direction so as to render it clear that there is any settled course of decisions on this question. The word `appeal' has not been defined in the Code of Civil Procedure. In Wharton's Law Lexicon `appeal' has been defined as 'The judicial examination of the decision by a higher Court of the decision of an inferior Court'. In The Attorney‑General v. H. J. Sillem and others II E R X E L C 703 Lord Westbury described an appeal in these terms 'An appeal is the right of entering a superior Court and invoking its aid and interposition to redress the error of the Court below'." Story in his work on the Constitution, (Vol. II) has pointed out that the characteristic of an appeal is a revision of a judicial proceeding of an inferior Court so that the mode in which the power is exercised is wholly material. In the case of Negendra Nath De v. Suresh Chandra De (1), the question is to what amounted to 'an appeal' under .Article 182(2) of the Limitation Act hose. The following observations of their Lordships of the Judicial 'committee in that case are both suggestive and significant "There is no definition of `appeal' in tile Civil Procedure Code, but their Lordships have no doubt that any application by a party to an appellate Court asking it to set aside or revise a decision of a Subordinate Court, is an `appeal' within the ordinary acceptation of the term, and tat it is no less an appeal because it is irregular or incompetent.' This view also finds support from the observation of the Judicial Committee in Raja of Ramnand v. Kamid Rowthan and others 53 1 A

74. Their Lordships while referring to civil revision petition observed : 'From the judgment an appeal in the form appropriate to such a case from the Munsif's Court, i.e., a Civil Revision Petition was preferred to the High Court of Madras." From the above, it is clear that the remedy which has been given to the aggrieved party by way of revision does not differ in essence from a right falls within the category of special local law. We have examined this question with particular reference to the provisions in that Act, relating to the allotment of land, falling in the pools to displaced persons and the permanent settlement of such land, and are of the opinion that it is, undoubtedly, a special law". The special statute prescribed for an application a period of limitation different from the period prescribed therefor by the First Schedule to the Limitation Act, 0908 in so far as that the special statute, the Displaced Persons (Land Settlement) Act, 1958, provides under section 19 a period of sixty days for filing an application of revision, whereas, none is prescribed in the Schedule to the Limitation Act, 1908. Therefore, section 29(2) of the Limitation Act, 1908 will be applicable. Under clause (a) of the aforesaid section 29(2), section 12 of the Limitation Act, 1908, relating to exclusion of time in obtaining certified copy, would be applicable, unless that were to be expressly excluded by the special statute. The Special statute i.e. the Displaced Persons (Land Settlement) Act, 1958, however, does not contain any provision expressly excluding section 12 of the Limitation Act, 1908. Therefore, section 12 of the Limitation Act, 1908, would be applicable in reckoning the period of limitation if section 12, is, otherwise, applicable in its terms. Section 12 of the Limitation Act, 1908 provides in subsection (2) that "in computing the period of limitation prescribed for an appeal, an appli cation for leave to appeal and an application for a 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 he excluded." This provision on the face of it does not apply to revisions. The reason obviously is that under the general law, no period of limitation is prescribed for filing a revision; therefore, the question of reckoning the period of limitation does not arise. The matter remains within the discretion of the revisional authority to entertain a revision petition or not. However, an application for revision . under section 19 of the Displaced Persons (Land Settlement) Act, 1958, partakes of the nature of an appeal inasmuch as that on ~ revision petition, the revisional authority may call for the record for the purpose of satisfying himself "as to correctness, legality or propriety of such order, and may pass such order in relation thereto as he thinks fit." In the case of Syed All Abid Zaidi and others v. Deputy Settlement and Rehabilitation Commissioner, Gujranwala and others (P L D 1967 Lah. 836) it was observed that :‑ "The revision under section 19(i) of the Act, is, therefore, vitally different on the above three principles from the revisions under the general law. This revision, in substance, partakes more of the character of an appeal (or to be more precise a second appeal) and a right of a personal audience can well be implied in it. The nature of a similar revision came up for examination before the Supreme Court in Tahir Ali and others v. Chief Judge, Karachi Small Causes Court and another P L D 1963 S C

147. That was a case of a revision under Karachi Rent Restriction Act (VIII of 1953), and in it a question arose as to what was the real nature and scope of the revision and, though, called a revision, was it not really in the nature of an appeal so as to attract the provisions of section 12(2) of the Limitation Act, 1908. The following passage in the judgment of Fazle‑Akbar, J., who wrote the leading judgment, at pages 149‑` 51 is quite instructive :‑ "It was contended on behalf of the appellants that in view of the provisions of section 12(2) of the Limitation Act, the time during which they were procuring a copy of the order of Rent Controller was not to be reckoned as part of the period of 30 days which was prescribed by subsection (1) of section 15 of the Act. To this, it was answered on behalf of the respondents that section 12(2) was not attracted to revision. Hence, the short question for consideration in this appeal is whether the expression `appeal' in section 12(2) has been used in a restrictive sense so as to exclude a revision petition. Upon construction of the word 'appeal' used in section 12(2) there has been divergence of judicial opinion. Some of the Courts in India adopted a restricted construction of the word 'appeal' and laid down emphatically that it does not include revision. On the other hand, some of the Courts construed the expression in a broader sense. There is, however, plainly no such preponderance in either direction so as to render it clear that there is any settled course of decisions on this question. The word `appeal' has not been defined in the Code of Civil Procedure. In Wharton's Law Lexicon `appeal' has been defined as 'The judicial examination of the decision by a higher Court of the decision of an inferior Court'. In The Attorney‑General v. H. J. Sillem and others II E R X E L C 703 Lord Westbury described an appeal in these terms 'An appeal is the right of entering a superior Court and invoking its aid and interposition to redress the error of the Court below'." Story in his work on the Constitution, (Vol. II) has pointed out that the characteristic of an appeal is a revision of a judicial proceeding of an inferior Court so that the mode in which the power is exercised is wholly immaterial. In the case of Negendra Nath De v. Suresh Chandra De (59 I A 283), the question as to what amounted to 'an appeal' under .Article 182(2) of the Limitation Act arose. The following observations of their Lordships of the Judicial Committee in that case are both suggestive and significant "There is no definition of `appeal' in tile Civil Procedure Code, but their Lordships have no doubt that any application by a party to an appellate Court asking it to set aside or revise a decision of a Subordinate Court, is an `appeal' within the ordinary acceptation of the term, and tat it is no less an appeal because it is irregular or incompetent.' This view also finds support from the observation of the Judicial Committee in Raja of Ramnand v. Kamid Rowthan and others 53 1 A

74. Their Lordships while referring to civil revision petition observed : 'From the judgment an appeal in the form appropriate to such a case from the Munsif's Court, i.e., a Civil Revision Petition was preferred to the High Court of Madras." From the above, it is clear that the remedy which has been given to the aggrieved party by way of revision does not differ in essence from a right of appeal. It is true that under the Code of Civil Procedure a distinction has been made between a `revision petition' and `an appeal', wader section 115 of the Code of Civil Procedure a revision petition only lies where an appeal does not lie. But here we are dealing, with a revision petition which had been filed under a special Act, namely, Rent Restriction Act, 1‑;

53. It cannot said that the special Act deals with revision petitions in the same sense as it is used in the Code of Civil Procedure. In this !pct, before the amendment of 1962, there was no provision for appeal. The only remedy .available to an aggrieved party against the order of Rent Controller was to file a petition before the Chief Judge of the Small Causes Court, Karachi, to whom the power of revision had been delegated by the Central Government At the relevant time subsection (1) of section 15 read as follows "The Central Government may on an application to be made within 30 days of any order made by the Rent Controller under this Act call for the record for the purpose of satisfying itself as to the legality or propriety of the order and as to the regularity of the proceedings, if any, in which the order was made, and may pass such order thereon as it deems fit, and may stay the order of eviction pending the hearing and disposal of the matter. Thus, the revision provided in the above subsection has all the characteristics of an appeal. In other words, the revisional power under this Act is not subject to any specified restrictions like those mentioned in section 115, C. P. C. It is, therefore, clear that the word `revision' in this Act has not been used in the same sense as what is technically known as a revision under section 115 of the Code of Civil Procedure. Respectfully following the above law I hold that since in the instant case the revisional power under the Act is not subject to any specified restrictions like those mentioned in section 115, C. P C., it is more akin to an appeal or a second appeal rather than a revision under section 115 of the Civil Procedure Code."

7. Further, although the heading of section 19(2) of the Displaced Persons (Land Settlement) Act, 1958 is "Revision", yet, before assistance can be drawn from the nomenclature of the section, and in the present case, before the petitioner can be deprived of the concession of the time spent in obtaining certified copy which was requisite for film", the application, a perusal of the terms of the section would be both indispensable and instructive. It provides that: "A Settlement Commissioner specially empowered in this behalf by the Chief Settlement Commissioner may of his own motion within nine months, or an application made in that behalf within sixty days, call for the record of any case or proceedings under this Act in which an Additional Settlement Commissioner or a Deputy Settlement Commissioner or at; Assistant Settlement Commissioner under his jurisdiction has passed an order, for the purpose of satisfying himself as to the correctness, legality or propriety of such refer and may pass such order, in relation thereto as he thinks fit." Now, the terms of the section are clear, explicit and comprehensive enough, There is no need to fall back upon the heading of the section to understand its meaning. There is no ambiguity, or, complexity in the context, or, the language. The terms of the section are rather more expressive ants extensive than the Heading would convey. Of course, a Heading of a section cannot be construed in a manner so as to control the express language of the provision and constrict its meaning. Therefore, it would be more profitable and in accordance with the canons of constructions to rely on the language of the section itself to interpret its meaning and intent. The section. authorizes a Settlement Commissioner to call for the record of any case "for the purpose of satisfying himself as to the correctness, legality or propriety of an order," and, then, "to pass any order in relation thereto as he thinks fit." This power is obviously more extensive than the power of a revisional Court under the general law, which can be exercised to correct an error when a jurisdiction not vested has been exercised, or, a jurisdiction has been exercised which did not vest, or, when the jurisdiction is exercised illegally or with material irregularity. The reason for which very wide and extensive power has been conferred on a Settlement Commissioner under the special law, i.e, the Displaced Persons (Land Settlement) Act, 1958 is not far to seek. The Act deals with not merely adjudicating for adjusting rights of the litigants but it provides, as its preamble makes it clear, "for the present settlement of displaced persons on land in order to compensate them for the losses suffered by them by expropriation by the Government of India of their rights in property in India or in any area occupied by India and for matters incidental thereto or connected therewith." Thus, it deals with the settlement of displaced persons, who may not, in all circumstances, be able to assert, or, advance their rights; therefore, the higher authorities at the apex are equipped with the power to see that these unfortunate persons who have been thrown out of their hearth and home for Pakistan are properly settled and compensated. The authorities are, thus, not only adjudicating rights, but, are also performing functions of settlement and compensation. Consequently, the jurisdiction conferred is very comprehensive and all embracing. It would be doing violence to the language of the section to restrict its application, on account of the nomenclature of the Heading of the section, by equating it with the scope of jurisdiction of a revision under the general law. Therefore, it would be in keeping with the intent and letter of the law to take the nature of l he section at least to be like that of an appeal. The fact that the Act t expressly provides for an appeal would not detract from the reasoning afore mentioned, nor, would restrict the scope of the section. This being so, it has to be determined whether under this provision when a period of sixty days has been provided. which is sufficiently a long period, provisions of section 12 of the Limitation Act, 1908, providing for exclusion of period spent in obtaining certified copy, is applicable or not. No doubt, the period provided is sixty days which is quite a long period for filing an application, but, the circumstances and nature of the exercise of power, as explained above, are also of exceptional character, dealing with multitude of displaced persons, with no moorings, spread all over the country, Moreover, rule 8 of the Displaced Persons (Land Settlement) Rules, 1959, as mentioned above, requires that an application under section 19 of they Act must be accompanied by a certified copy, therefore, the certified copy has to be obtained and annexed with the application. If the copying agency does not give a copy or takes too long ago give it. The applicant cannot be made to suffer. To hold otherwise would mean that a copying agency, by rot supplying the requisite copy, can defeat a remedy granted by law. Such a construction would defeat the purpose of law, and, there are no compelling reasons to so construe the statute. Therefore, it would appear that provisions of section 12 of the Limitation Act, 19(18, allowing exclusion of time spent in obtaining certified copy in computing the period of limitation, would be available to a litigant invoking jurisdiction under section 19(2) of the Displaced Persons (Land Settlement) Act, 1958.

8. In view of the above, the order of the Settlement Commissioner dated 30‑5‑1967 is liable to be set aside as he had not applied his mind to the above aspect of the case. He took down the two dates, one of the order challenged, and, the other of the filing of the revision petition, and, held that the petition was beyond the prescribed period of limitation. He did not consider whether the petitioner was entitled to the exclusion of the time spent in obtaining the certified copy. He did not, in fact, advert to this aspect of the case at all. Therefore, for non‑application of judicial mind to the material aspect of the case, the impugned order is liable to be declared as one without lawful authority and of no legal effect. 1t is so declared.

8. In view of the question of law involved, the parties are left to beat their own costs. K. B. A. Petition accepted.