1994 PLP 2442 (MLD)

MALIK MUHAMMAD QAYYUM, J.

This is a plaintiffs' appeal. under clause 10 of the Letters Patent of the Lahore High Court against the judgment and decree passed by a learned Single Judge of this Court on 8-6-1963, whereby he reversed the judgments and decrees of the Courts below.

2. The appeal arises out of a suit for possession of about 100 Kanals and 4 Marlas of land situated in Village Kotha Kalan, Rawalpindi, which now forms part of Ayyub National Park. In the suit filed by the appellants, it was claimed that they were owners of the suit land and had been illegally dispossessed by the cantonment Board in 1956. In the written statement filed by it, the respondent disputed the title of the plaintiff and also pleaded that it had become owner by adverse possession. Two legal objections were also .raised which led to the following issues: (i) Is the notice served on the defendant not in accordance with law? (ii) Is the plaintiff's suit time-barred? (iii) Has the plaintiff been in possession of the land in dispute within 12 years prior to the institution of this suit? (iv) Is the plaintiff the owner of the land in dispute?

3. The suit was decreed by the trial Court on 31-10-1959. Aggrieved the respondent filed an appeal which was dismissed by the learned District Judge, Rawalpindi on 11-3-1960. During the pendency of appeal, an application under order 41, Rule 27, C.P.C. was moved by the respondent which too was rejected by the learned District Judge. The respondent, thereafter,' applied for review of the judgment but that application was dismissed on 23-11-1960.

4. The respondent, came to this Court by filing a Regular Second Appeal' on 14-1-1961. There is a dispute between the parties as to whether or not the case instituted by the respondent was a Regular Second Appeal or a civil revision. This question shall be dealt with later on elsewhere in this judgment However, suffice it to say for the present purpose that in the impugned judgment, the learned Single Judge himself has described the matter as an appeal though in the heading it has been mentioned as a civil revision. Before the learned Single Judge, an objection was raised that the appeal was barred by time. It may be stated that the respondent had applied for condonation of delay in filing the appeal by filing an application under sections 5 and 14 of the Limitation Act, 1908. The learned Single Judge was of the view that there was sufficient cause for condoning the delay and, therefore, he accepted the application of the respondent under section 5 of the Limitation Act, and condoned the delay. Another application was made by the respondent for permission to lead additional evidence, which was also allowed by the learned Single Judge vide his order, dated 26-11-1992 whereafter additional evidence of the parties was recorded. The appeal of the respondent was accepted by the learned Single Judge on 8-6-1963 who- came to the conclusion that the land in dispute had all along been a part of Topi Rakh since 1864-65 and that the plaintiff had failed to establish its title or possession over the suit land within 12 years. As a consequence of this finding, the judgments and decrees of both the Courts were reversed and the plaintiff's suit was dismissed with costs throughout.

5. During the course of hearing of this appeal, at the very outset, an objection was raised by Mr. Bashir Ahmad Ansari, learned counsel for the respondent that as the legal representatives of Muhammad Sharif deceased appellant were not brought on record within the prescribed period of limitation this appeal stood abated. It is a common ground between the parties that Muhammad Sharif had died on 6-11-1963 at a time when the application for grant of certificate of fitness to appeal was pending before the learned Single Judge. The case of the appellants in this behalf is that on 7-1-1964, an application for bringing on record the legal representatives of the deceased was filed which was allowed and the legal representatives were ordered to be brought on record. One of the legal representatives, namely Walayat Begum also died on 18-1-1964 leaving behind two sons and a daughter who had already been brought on record and an application was filed by them on 8-4-1964 praying that they be also treated as legal representatives of Mst. Walayat Begum, whose name be struck off the record.

6. The fitness certificate was granted by the learned Single Judge on 4-4-1964 whereafter the present appeal was admitted to regular hearing on 3-3-1965. When the appeal came up for hearing on 25-4-1973, for the first time' an objection was raised by the respondent's learned counsel that the appeal stood abated on account of death of Muhammad Sharif in the year 1963. The learned counsel for the appellants sought time to obtain instructions in the matter and subsequently filed C.M. 1585-C/73 averring that two applications for bringing on record the legal representatives of the deceased had been filed which, however, were not available on the record and that an inquiry be held in this behalf. Thereafter, another C.M. No.1696-C/75 was moved by the appellants for seeking permission to produce evidence in support of their claim of having filed applications for bringing the legal representatives of Muhammad Sharif deceased on record. This application was opposed by the respondent but was allowed by the learned Division Bench hearing the case on 2.5-1975.

7. In order to show that the applications for bringing on record the legal representatives of the deceased had been filed, the appellants examined Hakim Muhammad Sardar Khan, Advocate, as A.W.1, Maqsood Ali Shah, Assistant, Civil Branch Lahore High Court, A.W.2, Muhammad Iqbal Younis and one of the appellants appeared as A.W.3. In addition to this evidence certain documents were also produced to which reference will be presently made. No oral evidence was led by the respondent who placed reliance upon Exh.A.W.2/3 and Exh.A.W.2/3-A which had been put to A.W.2 during his cross-examination. A chit Exh.DA was also tendered in evidence. The learned Division Bench hearing the appeal also brought on record written note Exh.P.W.2/4 on the basis of which P.W.2 had been making a statement.

8. Hakim Muhammad Sardar, Advocate, A.W.1 was an associate of Mr. Karam Elahi Chohan, who was the counsel.engaged by the appellants to file the appeal. He stated that two applications for bringing on record the legal representatives of deceased Muhammad Sharif and striking off of the name of Mst. Walayat Begum were filed by the appellants which were allowed by the Deputy Registrar of this Court. He proved the notes .ion' the.case cover (e US) (Exh.A.W.1/2) of .Mr. Karam Elahi Chohan, and deposed that notes Exh.A.W. 1/2-A and Exh.'A.W.1/2-B were in the hands of his clerks, Munshi Ahmad Din and Munshi Tufail Muhammad respectively, both of them have died. He also stated that office copy of the letter Exh.A.W.1/4 addressed to the Deputy Registrar was in the hand of Munshi Tufail Muhammad.

9. There is no reason to disbelieve this witness who is an Advocate of this Court and had been working with Mr. Karam Elahi Chohan. The testimony made by him is also supported by the file cover and notes thereon which prove that the applications were submitted by the appellants for bringing the legal representatives on the record.

10. Mr. Maqsood Ali Shah, A.W.2, who is an official of this Court stated that despite thorough search made by him, receipt register of the Civil Branch for January, 1964 could not be traced.although the Register of April, 1964 was found on the search. Statement of A.W. 3 also corroborates the deposition made by Hakim Muhammad Sardar Khan. There is no evidence in rebuttal. We, therefore, see no reason to discard the evidence of the witnesses produced by the appellants which is also corroborated by the documents referred to by them.

11. Another fact which deserves to be noticed is that Exh.A.W.1/6 bears the court-fee stamps in the name of Muhammad Igbal Younis, legal representatives of Muhammad Sharif deceased which also shows that legal representatives of the said deceased had .been brought on record: As already observed, no evidence was led in rebuttal by .the respondent, who have on the other hand, relied upon the copy of application Exh.A.W.2/3 addressed by Allah Ditta, Clerk of Raja Said Akbar to the Deputy Registrar and the report Exh.A.W.2/3-A to the effect that he had searched the Register and found that no application was filed in this Court from June, 1963 to January, 1964. Neither the .application nor the report of the official has been proved in accordance with law. Mr. Maqsood Ali, A.W.2, stated that he was not in a position to verify the signatures on the report as that of Tufail Muhammad. In these circumstances, it was incumbent upon the respondent to have led some evidence to prove that application, Exh.A.W.2/3 was in fact filed by the Clerk of Raja Said Akbar before the Division Bench and that the report Exh.A.W.2/3-A was in fact made by the official of this Court. This report, in any case, stands belied by the statement of Mr. Maqsood Ali, A.W.2. We are, therefore, clearly of the view that the appellants have successfully proved that they had filed applications for bringing on record the legal representatives of the deceased and as such the appeal cannot be said to have abated.

12. Now reverting to the appeal itself, the first contention raised by the learned counsel for the appellants is that the appeal filed by the respondent before the learned Single Judge was badly barred by time and the delay in filing the same which had remained unexplained, could not have been condoned by the learned Single Judge.

13. Mr. Bashir Ahmad Ansari, learned counsel for the respondent, in the first instance, defended the impugned order by which the delay was condoned by the learned Single Judge by submitting that there was sufficient reason for condoning the delay. He also argued that discretion vesting in the learned Single Judge having been properly exercised by him should not be interfered' with by the Division Bench. Towards the end of his arguments, another plea was raised by him, for the first time, which was that as the cause has been disposed of by the learned Single Judge treating it to be a civil revision, therefore, the question of limitation does not arise.

14. In reply, Mr. Anwar Baig vehemently. controverted Mr. Bashir Ahmad Ansari, by submitting that at no stage of the proceedings either before the learned Single Judge or even in the L.P.A. the fact that the matter before the learned Single Judge was a Regular Second Appeal was disputed or doubted and it was in this view of the matter that an application under section 5 of the Limitation Act for condoning the delay was filed which was thoroughly debated before the learned Single Judge and, therefore, it was not open to the respondent to take up the position for the first time before this Division Bench that what had been decided by the learned Single Judge was a civil revision in which the Question of limitation did not arise. Mr. Anwar Baig further argued that as a matter of fact the respondent had filed a regular second appeal which was 'disposed of as such by the learned Single Judge.

15. In this context, first of all, the question which needs to be decided is as to whether the matter before the learned Single Judge was a regular second appeal or a revision. Although it is correct that in the heading of the judgment, the number is that of a civil revision but in the judgment itself, the learned single Judge has described the matter as being an appeal. There is no doubt in our mind that the learned Single Judge had treated and disposed of the matter as a second appeal and it is on account of this fact that he dealt with the question of limitation in great detail if the cause before him was indeed a civil revision, the question of limitation would not have arisen at all. From the perusal of the record, it is to be seen that in the first instance, the appeal was filed on 14-1-1961. While doing so, the form which was used and annexed to the memorandum of appeal as required by the rules was that of civil appeal. and not a revision, wherein it was specifically stated that the appeal was being filed under -section 41 of the Punjab Courts Act, 1918. In this appeal, the respondent had challenged not only the judgment and decree of the learned District Judge but also the order, dated 11-3-1960 of the learned District Judge refusing to review the judgment..However, in paragraph 13 of the memorandum of appeal, while praying that the appeal be accepted, the appellant-respondent had stated that if for any reason, it was found that the appeal was not competent then The ;memo. of.appeal may be treated as a petition for revision: On 14-1-1961, an objection in the following terms was raised by the Deputy Registrar of this Court: "It is not understood under what provisions of law the appeal is competent against the review order dated 2:3-11-1960 of the District Judge. It can be a ground for the purpose of limitation that a review was sought for whether rightly or wrongly but the appeal ,shall be against the original order of the District Judge dated 11-3-1.960 but not against review order. The necessary correction may please be made in the heading. Returned. To be refiled within a week. This objection was replied to by the learned counsel for the respondent by stating in his own hand on 20-1-1961 as under:

"This is a regular second appeal under section 41 of the Punjab Courts Act and the review petition has been attached for the purpose of the application under section 5/14 of the Limitation Act praying that the period spent in persuing the review petition be condoned and the appeal from the appellate judgment dated 11-3-1960 be treated as within time. If, however, the delay be not condoned then the memo of appeal may kindly be treated as a petition for revision under section 115, C.P.C." It is thus clear that the respondent had insisted that the cause was an appeal and it was only in case it was not found to be competent that it was to be treated as a revision. There is no order by the Court holding that the appeal was not competent and, therefore, be treated as a revision.

17. Mr. Bashir Ahmad Ansari, learned counsel for the respondent was asked to explain as to what was the basis for contending that the second appeal was not competent before the learned Single Judge against the appellate order of the learned District Judge. The learned counsel submitted that as the value of the suit out of which appeal had arisen for the purpose of jurisdiction was fixed at Rs.230, no second appeal under section 100 of the ,,,C.P.C. was competent.

18. Mr. Anwar Baig, learned counsel for the appellant has rightly pointed out that according to the law applicable at that time which was section 42 of the Punjab 'Courts Act, 1918, the filing of second appeal was barred only in cases which were. in the nature of small causes having jurisdiction value' of Rg.500 or less. If the appeal had arisen out of a matter which was not in the nature of small causes second appeal would lie both' under section 102 of the C.P.C. as also section 42 of the Punjab Courts Act, 1918, even though the value for the purpose of jurisdiction may be less than Rs.500. In Hamid Ali Fakir v. Kazi Abdul Khalaq and others PLD 1960 Dacca 608 and Abdul Ghafur Sikedar and 'others v. Sonaulla Molla and another PLD 1952 Dacca 267, it was observed that the bar contained in section 102, C.P.C. would be applicable only in matters cognizable by the Small Causes Courts and decided under the Provincial Small Causes Courts Act, 1887 provided the jurisdiction value was less than Rs.500. A reference to Second Schedule to the Provincial Small Causes Courts Act would show that suit for possession of immovable property stood excluded from the cognizance of Small Causes Courts. That being so, the' suit filed by the appellant for possession of immovable property cannot be considered to be. a suit of the nature of small causes. This brings us to the question as to whether the appeal filed by the respondent before the learned Single Judge was within time.

19. The first appeal filed by the respondent was dismissed by the learned District Judge on 11-3-1960. Under Article 156 of the Limitation Act,' appeal should have been filed within 90 days of the decree of the District Judge before this Court. However, under section 12 of the Limitation Act, the time spent in procuring certified copies is to be excluded. In this case, application for obtaining certified copies of the judgment and decree of the District Judge was made on 31-3-1960, on which the copies were supplied to the respondent on 11-4-1960. As such, the respondent is entitled to the allowance of 12 days on this account. So far as the copies of the judgment and decree of the trial Court are concerned, the requisite application was made on 11-1-1961 and the copy were supplied on the same day. The respondent was, thus, entitled to have e benefit of this one day. The total copying days, therefore, comes to 13 days. The appeal was, instituted on 14-1-1961 i.e. after 309 days of the judgment of the learned District Judge. If 90 days limitation and 13 days copying time are excluded, still the appeal would be barred by 203 days.

20. The learned Single Judge, however, proceeded to condone the delay holding that the respondent was entitled to deduct the time spent by it during which it had been prosecuting its review application before the learned District Judge. Although we are of the opinion that the respondent was not entitled to deduct the time which was consumed for the decision of review application in view of the law declared by the Supreme Court of Pakistan in Ahmad Din v. Mst. Rasul Bibi PLD 1968 SC 213, Shah Muhammad v. Ghulam and another PLD 1970 SC 196 and Kh. Muhammad Afzal and another v. Sh. Muhammad Sadiq and others 1988 SCMR 179 yet even if the respondent is allowed time between 10-6-1960, the date when the review application was filed and 23-11-1960 when the same was decided, the total period would come to 167 days which if deducted, still the appeal would be barred by 36 days for which there is no explanation whatsoever.

21. Faced with this situation, Mr. Bashir Ahmad Ansari, learned counsel for the respondent has submitted that the period for filing second appeal in cases where application for review had been moved, should be computed from the date when the review application is decided which, in the present case, was 23-11-1960 and not when the appeal was decided by the learned District Judge. The proposition advanced by the learned counsel is wholly untenable. As the appeal was directed against the judgment and decree of the learned District Judge dated 11-3-1960, the limitation under Article 156 of the Limitation Act would run from that date. It is axiomatic and an elementary principle that once limitation starts running, nothing can stop it. (See Abdul Ghafur v. The Thal Development Authority, Jauharabad PLD 1968 SC 213 and Kh. Muhammad Afzal and another v. Sh. Muhammad Sadiq and others 1988 SCMR

179. That being so, there is no occasion to hold that limitation in this case would not run when the decree was passed but from the date of decision of the application for review. On no reasonable principle or hypothesis, could the respondent claim that while computing limitation the period between the dismissal of the appeal by the learned District Judge and the filing of the review application be excluded. The respondent could at the most claim the benefit of sections 5 and 14 for exclusion of the period, it spent in prosecuting the review application which too is doubtful but there is no occasion to hold that the time itself would start running from the date of decision of the review application. The proposition advanced by the learned counsel for the respondent stands negated by the pronouncement of the Supreme Court in Ahmad Din v. Mst. Rasul Bibi PLD 1968 SC 213 and Akhtar Hussain and others v. The State 1969 SCMR 278.

22. There is also considerable force in the contention raised by Mr. Anwar Baig that the learned Single Judge while computing the period of limitation has misread the record. While computing that period, the learned Single Judge in the impugned judgment has observed that the respondent had applied for copy of the judgment and decree of the trial Court which was supplied to it on 11-1-1961 and on that basis the respondent was given benefit of 40 days. However, from a perusal of the certified copy of the judgment and decree of the trial Court which was filed alongwith the memorandum of appeal before the learned Single Judge, it is evident that the copy was applied for on 11-1-1961 which was supplied to it on the same day. With due deference and great respect to the learned Single Judge, we have been unable to understand as to how he arrived at the conclusion that 40 days were consumed in obtaining the copy of the judgment of the trial Court.

23. Mr. Bashir Ahmad Ansari, learned counsel for the respondent argued that as the learned Single Judge in the exercise of his discretion condoned the delay, the same cannot be interfered with in an appeal. Although, it is true that condonation of delay generally is in the discretion of the Court or authority hearing the appeal and the discretion exercised by it is not to be readily interfered with but if the discretion has not been exercised after due application of mind to the facts or is a result of misreading of the record or misconstruction of the true legal position, the appellate Court is certainly entitled to interfere with the same. Reference may be made to Irtiga Rasool Hashmi v. Water and Power Development Authority and another 1980 SCMR 722 and Syed Nazar Ali v. Syed Ibne Ali and others 1981 SCMR 239.

24. In the present case, as already observed, there has been misreading of record and misconstruction of the true legal position. The limitation in this case started running on the decision of the first appeal by the learned District Judge on 11-3-1960. The time spent by the respondent in obtaining copy of the judgment of the District Judge was 12 days while for obtaining copy of the judgment of the Civil Court, only one day was spent. The copying days thus come to 13 days. Even if we allow the respondent, the benefit of sections 5 and 14 and condoned the period of 167 days during which the review application remained pending yet the respondent should have filed the appeal within 90 days (limitation) + 167 days plus 13 days = 270 days. The appeal which was filed after 309 days was, clearly barred by time and should have been dismissed as such. For the foregoing reasons, we are of the view that as the appeal before the learned Single Judge was badly barred by time for which there was no explanation, it was liable to be dismissed as such and he could not have proceeded to accept the same. While accepting this appeal we set aside the judgment and decree of the learned Single Judge and restore the judgments and decrees of the learned District Judge and the Civil Judge with no order as to costs. A.A./M-1806/L?????????????????????????????????????????????????????????????????????????????????? Appeal accepted.