2012 PLP 1069 (MLD)

NASIR SAEED SHEIKH, J.

Through the instant Civil Revision the judgment and decree dated 22-7-2011 passed by the learned Additional District Judge Sheikhupura dismissing the appeal of the petitioner has been assailed.

2. The petitioner on 8-5-2007 instituted a suit for specific performance of an agreement to sell along with a prayer for permanent injunction before the learned Civil Judge Sheikhupura which was dismissed by the learned Civil Judge vide judgment and decree dated 13-10-2009. An appeal was preferred by the petitioner which was dismissed by the learned Additional District Judge vide judgment and decree dated 22-7-2011. Hence the instant Civil Revision which is admittedly barred by two days and C.M. No.2-C/2011 has been moved for condonation of the delay. C.M.No.2-C of 2011

3. The petitioner applied for obtaining certified copy of the judgment and decree dated 22-7-2011 of the learned first appellate court on 3-8-2011 which was supplied to the petitioner on 4-8-2011. The petitioner filed this Civil Revision on 25-10-2011 and moved an application under section 5 of the Limitation Act 1908 for condonation of delay of two days in filing the revision petition. The learned counsel for the petitioner relied upon a judgment passed by a learned Division Bench of this Court reported as NASIR ALI V. UMAR DRAZ AND OTHERS (PLD 2011 LAHORE 599) to contend that if the provisions of section 5 of the Limitation Act, 1908 are not applicable then the delay can be condoned by this Court in exercise of powers under section 151 of C.P.C.

4. The respondents were issued notice on the point as to whether the delay in question can be condoned in exercise of powers under section 151 of C.P.C.

5. The learned counsel for the respondents has rendered appearance and has raised objection to the entertainment and maintainability of the instant Civil Revision on the ground that it is barred by time. The learned counsel for the respondents has further controverted the above contention of the learned counsel for the petitioner by arguing that the judgment reported as (PLD 2011 Lahore 599) is not applicable to the facts and circumstances of the instant case because in the said case Civil Revision was filed within time and it was returned by the office of the High Court for removal of certain objections and in that context the judgment was announced by the learned Division Bench. The learned counsel contends that in the instant case the limitation had admittedly expired before the presentation of the Civil Revision by the petitioner in the office and there was a delay of two days in filing the Civil Revision. It is further argued that the delay of even two days has not been explained by any sufficient cause by the petitioner therefore no indulgence be shown to the petitioner.

6. Arguments heard and record perused.

7. Admittedly the Civil Revision is barred by time by two days. The application under section 5 of the Limitation Act, 1908 has been moved through C.M. No.2-C of 2011 for condonation of delay. Application under section 5 of the Limitation Act 1908 for condonation of delay in a Civil Revision under section 115 of C.P.C. is not maintainable. Reliance in this respect is placed upon the judgment reported as ALLAH DINO AND ANOTHER V. MUHAMMAD SHAH AND OTHERS (2001 SCMR 286).

8. The only contention raised in the C.M. for condonation of delay in para-5 is that due to unavoidable circumstances the delay had occurred in instituting the Civil Revision within time. The ground urged in para-5 of the C.M. "unavoidable circumstances" hardly constitutes a sufficient ground for condonation of delay. The judgment reported as (PLD 2011 LAHORE 599) is distinguishable in the first instance on the ground that in the reported judgment the Civil Revision was presented in the High Court within the period of limitation and then it was returned to the petitioner for removal of certain objections. In so far as the other contention of the learned counsel for the petitioner about the exercise of inherent jurisdiction for condonation of delay is concerned the honourable Supreme Court of Pakistan in the reported judgment COLLECTOR OF CENTRAL EXCISE AND SALES TAX V. PAKISTAN FERTILIZER COMPANY LTD. (2007 SCMR 351) has laid down that the inherent powers of the courts can only be exercised with respect to some procedural matters and the exercise of inherent power must not affect substantive rights of the parties. The honourable Supreme Court of Pakistan in the reported judgment also relied upon the judgment from the Indian jurisdiction (AIR 1961 SC 218) in that context. The question of bar of limitation is to a procedural matter and affects substantive rights of the parties.

9. In view of all the above circumstances the C.M. No.2-C of 2011 is dismissed. The Civil Revision being barred by time is accordingly dismissed. K.M.Z./M-91/L Revision dismissed.