P L D 1964 (W (PLP)

Held, that the Legislature having already revived the original provisions in the Code of Civil Procedure and having considered it fair and proper that the remedy under sections 100 and 101 of the Code of Civil Procedure for the purposes of second appeal be restored to the litigant public, there is no reason, why some concession under section 5 as amended by Limitation (Amend ment) Ordinance XLIII of 1962 be not made in case of all those revision petitions which had been filed during the period in question. In the circumstances, a case is made out for invoking the powers of the High Court under section 5 of the Limitation Act as amended, so that the period of time spent by the parties in obtaining copies of the judgment and decree of the lower Appellate Court or the judgment of the first Court be excluded for the purpose of limitation by applying the principle of section 12, Limitation Act, 1908, while considering an application tinder section 5, Limitation Act (IX of 1908) as amended. Zaki‑ud‑Din Pal for Petitioners. Sh. Abdul Manan for Respondent. Date of hearing : 25th May 1964. The short question involved in this miscellaneous petition is with regard to the point of limitation. This second appeal was initially filed as a revision petition on the 1st of April 1963 under section 115 of the Code of Civil Procedure as amended by Ordinance XLIV of 1962. Thereafter, there has been a change fn the law and the original remedy of appeal was restored by the amending Act III of 1963 with effect from the 4th of April 1963 and under section 5 (5) of this amending Act a civil revision under section 115 of the Code of Civil Procedure pending before the High Court immediately before the commencement of the said Act was to be dealt with and disposed of either as a revision or as an appeal according as it was of the nature of revision or an appeal under the provisions of the Code as revived by this Act. Under this saving clause the revision petition stood changed into a second appeal and it is in the light of these amendments which have come into being so rapidly that the question of limitation has to be viewed and decided. The law in the country up to the 7th of June 1962 has been that there was no limitation provided for civil revisions. Simultaneously with the amending Ordinance XLIV of 1962 a period of limitation was prescribed for the first time by addition of a new Article (being Article 162‑A) in the Limitation Act by Limitation (Amendment) Ordinance XLIII of 1962 and the litigants were obliged to come before this Court in cases where a second appeal was available prior to the 7th of June 1962, by way of revision petition only and within ninety days. Unfortunately no consequential changes were made in section 12 of the Limitation Act, nor were the provisions of Order XLI, rule 1, C. P. C., extended to such revision petitions, with the result that there were no provisions made for exclusion of time requisite for obtaining a copy of the judgment and decree of the lower Appellate Court or for the filing of the judg ment and decree of the lower Appellate Court or the judgment of the trial Court, as was the law for memorandum of second appeals. No doubt under Rule 7, Chapter I of the High Court, Rules and Orders, Volume V, it is necessary that a copy of the decree sought to be revised and a copy of the judgment upon which such decree is founded be appended to revision petitions and in the case of a revision petition against an appellate decree or order, judgment of the first Court is also to be filed, but the time spent for obtaining such copies cannot be excluded. This difficulty was being experienced even by the members of the Bar, not to speak of the general public. It was with this end in view along with other considerations that representations were made and ultimately the Legislature thought it fit to revert to the old Code and revive the same, but unfortunately, again the period of limitation prescribed for civil revisions which have now been termed as second appeals and which had been filed as revision petitions during the period between the 7th of June 1962 to the 4th of April 1963 continues to be ninety days, without the application of section 12 of the Limitation Act. The learned counsel for the respondent contends that all such cases are governed by the provisions of law, with regard to limitation, applicable during the period in question and principles of section 12 should not be invoked under section

5. I feel this stringent view of the matter is likely to work great hardship on the litigant public. When the Legislature has already revived the original provisions in the Code of Civil Procedure and it has been considered fair and proper that the remedy under sections 100 and 101 of the Code of Civil Procedure for the purposes of second appeal be restored to the litigant public, there is no reason why some concession under section 5 as amended by Limitation (Amendment) Ordinance XLIII of 1962 be not made in case of all those revision petitions which had been filed during the period in question. In the circumstances, believe a case has, been made out for invoking the powers of this Court under section 5 of the Limitation Act as amended, so that the period of time spent by the parties in obtaining copies of the judgment and decree of the lower appellate Court are the judgment of the first Court be excluded for the purpose of limitation in this case. In result, I hold that the civil revision petition filed on the 1st of April 1963 by the petitioners will be treated to have been filed within time, applying the principles of section 12 under the amended section 5 of the Limitation Act, although section 12 in itself has not been made so applicable because of absence of any consequential changes having been made in section 12, when the Code of Civil Procedure was amended in 1962.

2. A contention has been raised before me by Sh. Abdul Marian, relying on subsection (1) of section 5 of the amending Act III of 1963, that a very valuable right has accrued to the respondent because of the civil revision petition having not been filed within time. There is no substance in this contention because of the fact that if once it is held that due to the circum stances obtaining in this case the principles of section 12, read with section 5 of the Limitation Act, are extended to the civil revision petition, no question of any valuable right having vested in the respondent arises. The contention, therefore, stands repelled. A. H.