2016 PLP 773 (MLD)

ZAFAR AHMED RAJPUT, J.

This Civil Revision Application under section 115, C.P.C. is directed against the judgment dated 25.09.2014, passed by the learned IIIrd Additional District Judge, Karachi (West) in Civil Misc. Appeal No. 05 of 2014, upholding the Order dated 03.05.2014, passed by the learned IInd Civil Judge, Karachi, (West) whereby the plaint in F.C. suit No. 437 of 2012, filed by the applicant/plaintiff, was returned to applicant/plaintiff for its presentation before the Court having pecuniary jurisdiction.

2. The impugned order was passed on 25.09.2014, while the present Civil Revision was filed on 02.02.2015, therefore, the same is time barred by 20 days even 15 days of winter vacation is excluded. The applicants acknowledging that the civil revision is time barred; have filed the application (C.M.A. No.961 of 2015) under section 5 of the Limitation Act, 1908 ("Act, 1908") for condonation of delay, without specifying the period of delay, on the ground that the delay was caused as the attorney of applicant Bank was indisposed.

3. I have heard the learned counsel for the applicant and perused the material available on record.

4. The learned counsel for the applicant has mainly contended that the applicant had filed the suit for declaration and injunction wherein no relief of possession or damages was sought; therefore, the learned trial Court as well as appellate Court failed to appreciate that the pecuniary jurisdiction is to be determined in light of the reliefs sought and thus erred in passing impugned order/judgment. The learned counsel for the applicant, however, failed to satisfy the Court as to how Section 5 of the Act, 1908 is applicable to petition filed under section 115, C.P.C., which prescribes itself a period of limitation i.e. 90 days and how the benefit of section 5 of the Act, 1908 can be availed, when it has not been made applicable as per section 29(2) of the Limitation Act, on a revision filed under section 115, C.P.C.

5. In the case of Allah Dino and others v. Muhammad Shah and others (2001 SCMR 286), the Honourable Supreme Court has held as under:-- "There is no cavil with the arguments that if the Statute governing the proceedings does not prescribe period of limitation, the proceedings instituted thereunder shall be controlled by the Limitation Act as a whole. But where the law under which proceedings has been launched prescribes itself a period of limitation like under section 115, C.P.C. then benefit of section 5 of Limitation Act cannot be availed unless it has been made applicable as per section 29(2) of the Limitation Act, as held in the case (i) The Canara Bank Ltd. v. The Wardon Insurance Co.Ltd. (AIR 1935 Bombay 35), (ii) Abdul Ghaffar and others v. Mst.Mumtaz (PLD 1982 SC 572), (iii) Ali Muhammad and another v. Fuai Hussain and others (1983 SCMR 1239) (iv) Controller of Customs (Appraisement) v. Messrs Saleem Adaya, Karachi (PLD 1999 Karachi 76) and (v) Haji Muhammad Ashraf v. The State and 3 others (1999 MLD 330)

6. In the case of Hafeez Ahmed and others v. Civil Judge, Lahore and others (PLD 2012 SC 400) a five members Bench of Honourable Supreme Court have examined section 115 C.P.C. and section 29 of the Act of 1908, and held as under:-- "Civil Procedure Code, 1908, though being a general law for all legal and practical purpose, for having prescribed period of limitation for filing a revision petition would be considered a special law for purposes of Limitation Act, 1908. Had legislature intended to treat C.P.C. as a general Law for purposes of Limitation Act, 1908, then same in First Schedule would have been prescribed a period of limitation for filing a revision application. Provision of Ss. 4, 9, to 18 & 22 of Limitation Act, 1908 would, thus, apply even to revision petition filed under S.115, C.P.C., however, S.5 Limitation Act, 1908, for not finding mentioned in S.29 therefore, shall, not be applicable to revision under S.115, C.P.C."

7. So far the legal merit of the order/judgment of the Courts below is concerned, I have examined the plaint in the suit, filed by the applicant/plaintiff for declaration and injunction against the respondent and found that the applicant has himself not valued the relief(s) sought in plaint/suit for the purpose of Court Fee and pecuniary jurisdiction. Therefore, if it is case of the applicant/plaintiff that the learned Courts below failed to consider that the relief sought by the applicant/plaintiff in the suit were not beyond the pecuniary jurisdiction of the trial Court, then the applicant/plaintiff may file the suit afresh after valuing the relief(s) sought for the purpose of Court Fee and pecuniary jurisdiction.

8. In the light of what has been discussed above, I am of the view that the section 5 of Act, 1908 has not been made applicable under section 29(2) of the Limitation Act, on a revision filed under section 115, C.P.C. which prescribes its own period of limitation i.e., 90 days. I, therefore dismiss the application filed by the applicant under section 5 of the Act, 1908 being not maintainable in law. Consequently, the revision application is also dismissed in limine being time barred, along with listed C.M.A., but with no order as to costs. ZC/C-4/Sindh Revision dismissed.