1997 PLP 983 (SCMR)

and another‑‑‑Respondents (On appeal from the judgment of the Lahore High Court, Lahore dated 10‑1‑1994 passed in Civil Revisions Nos.407 and 408 of 1992 respectively). Civil Petitions Nos. 528‑L and 529‑L of 1994, decided on 8th October, 1995. ‑‑‑‑S. 70‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Cancellation of transfer of plots without notice‑‑‑Plaintiffs did not serve notice on defendant (Society) in terms of S.70, Cooperative Societies Act, 1925‑‑‑Suit was dismissed as barred by time‑‑‑Appeal as also revision were likewise dismissed‑‑‑Validity‑‑‑Petitions for leave to appeal were admittedly barred by 56 days‑‑‑Plaintiffs in application for condonation of delay had stated that they were represented by Advocate of Multan and after judgment had been reserved, the same was announced on 10‑1‑1994 and no intimation according to rules and practice of Court was served on said advocate who came to know about the same on 20th March, 1994 whereafter he applied for copies of judgment which were delivered on 29‑3‑1994‑‑‑Petitions for leave to appeal were filed on 16‑5‑1994‑‑‑Respondents contended that period of limitation would run from date of judgments and not from knowledge of plaintiffs (petitioners), therefore, they should have explained delay in filing petition‑‑ Leave to appeal was granted subject to question of limitation. C.A. Rehman, Advocate Supreme Court and Hameed Aslam Qureshi, Advocate‑on‑Record for Petitioner (in both Petitions). Raffia Nasrullah Khan, Advocate Supreme Court and S. Abul Aasim Jaffri, Advocate‑on‑Record for Respondent (in both Petitions). 8th October, 1995. SALEEM AKHTAR, J.‑‑‑Both the petitions will be disposed of by this order as questions of fact and law involved are common. In C.P. No.528‑L of 1994, Plot No.78/F shop situated in Model Town Cooperative House Building Society was transferred to the petitioner on 20‑4‑1968 but possession was not delivered to him. In C.P. No.529‑L of 1994 Plot No.77/F shop situated in the same Society was allotted to Saeeda Begum on 20‑4‑1968 and all the dues are claimed to have been cleared by her. The possession of the plot was not delivered by the Society to either of them and as they were occupied by unauthorised persons, the Society instituted proceeding for their eviction. The petitioners on query from the Society about the progress of the suit informed that due to their failure to raise construction on the plots the same were cancelled on 15‑12‑1974. In case of Mst. Saeeda Begum it was further stated that the plot had been allotted to Muhammad Aslam Lodhi, the predecessor‑in‑interest of Surriya Begum, respondent No.2 herein. Both the petitioners filed suits separately against the Society. Both the suits were dismissed and appeal leas filed which was also withdrawn with permission to file fresh suits on the same cause of action as the petitioner had not served the Society with notice under section 70 of the Cooperative Societies Act. Thereafter fresh suits were filed which were dismissed as barred by time. The appeals filed against the said judgment were also dismissed by the Additional District Judge. The revisions filed against the said judgment were dismissed by the impugned judgment. While dismissing the revision applications holding that the suits were barred by time, the learned Judge in Chamber made the following observation:‑‑‑ "The allotments in favour of the plaintiffs had been cancelled and plots allotted to Mst. Shehzadi and Mst. Surraya respondents by the Society. Even if, it be assumed without conceding that the cancellation was without notice, the orders of the Society would hold the field unless set aside. These orders were at the most voidable and not void inasmuch as the Society had the authority to cancel the order of allotment or order fresh allotment. In the absence of notice the orders at the most would be voidable and not void. So unless those orders were set aside foundation could not be laid to, set up the claim of possession over the plots. Thus the cases were governed by Article 120 of the Limitation Act and not Article 142/144 ibid. As correctly observed by the two Courts below the present suits were filed more than six years after the knowledge as to the cancellation of the plots so the conclusion reached was correct that the suits were time‑barred."

2. The learned counsel for the petitioners contended that as the allotment of the petitioners were cancelled without any notice to them, all orders passed or actions taken were illegal and void and not voidable. In such circumstances the suits could not have been dismissed as barred by time.

3. The learned counsel for the respondents contended that the petitions are barred by 56 days and no valid ground for condonation has been made out. In the application for condonation of delay, it has been stated that the petitioners were represented by an advocate of Multan and after the judgment had been reserved by the learned Judge in Chamber the same was announced on 10‑1‑1994 and no intimation according to the rules and practice of the Court was served on the said advocate. The said advocate came to know about it on 20th' March, 1994, applied for copy of the judgment which was delivered on 29‑5‑1994. The petitions were filed on 16‑5‑1994. The learned counsel for the respondents contended that the period of limitation runs from the date of the judgment and not the knowledge of the petitioners and, therefore, the petitioners should have explained by cogent reason the delay in filing the petitions. It was further contended that delay from 29th March, 1994 to 16‑5‑1994 has not at all been explained. Leave is granted subject to question of limitation. The interim order passed on 8‑6‑1994 shall continue. A.A./B‑297/S Leave granted.