2008 PLP 91 (MLD)

MUHAMMAD SAYEED AKHTAR, J.

Succinctly stated the facts of the case are that the plaintiff/petitioner filed a suit for declaration regarding Property No. E/2598, Rang Mahal, Lahore against defendants/respondents 3 to

8. The suit of the plaintiff/petitioner was dismissed for non-prosecution as well as for lack of evidence on 27-10-1994. The petitioner preferred an appeal against the judgment/ decree, dated 27-10-1994, the same was dismissed by the learned Additional District Judge, Lahore on 16-11-1998. Civil Revision No.264 of 1999 was instituted against the judgment of the learned Additional District Judge which was allowed by this Court on 11-2-2002 and the following order was passed:-- "In view of what has been discussed above, the impugned judgment and decrees of the Courts below are set aside as the same were passed in violation of the dictum laid down by the Honourable Supreme Court. Parties are directed to appear before the Trial Court on 25-2-2002 and the Trial Court is directed to provide only one opportunity to the petitioner to produce the evidence. In case the petitioner fails to avail that opportunity then the Trial Court shall proceed in the matter in accordance with law." The petitioner failed to avail the opportunity for adducing evidence, the learned Trial Court vide its order, dated 29-10-2002proceeded to close the evidence of the plaintiff/petitioner tinder O. XVII, Rule 3, C.P.C. A time-barred revision petition was preferred along with the same an application under section 5 of the Limitation Act, 1908 for condonation of the delay was also filed. The learned Additional District Judge, Lahore dismissed the revision petition vide order, dated 20-5-2003 mainly on the ground that section 5 of the Limitation Act was not applicable to the revision petitions.

2. The learned counsel for the petitioner contended that the Additional District Judge proceeded on wrong premises in holding that section 5 of the Limitation Act, 1908 was not applicable to revision petitions. He urged that the delay could be condoned under section 5 of the Limitation Act, 1908 for the reasons mentioned in the application. In the alternate he submitted that the Court could exercise the suo motu jurisdiction in the particular circumstances of the case. He relied upon two recent judgments of the Hon'ble Supreme Court i.e. Muhammad Waris v. Muhammad Arshad and another (2001 SCMR 894) and Muhammad Bashir and another v. Province of Punjab (2003 SCMR 83).

3. I have gone through the judgments cited by the learned counsel. In the case of Muhammad Arshad and another (supra) the Hon'ble Supreme Court of Pakistan held that the plea of non-applicability of section 5 of Limitation Act, 1908 was not taken before the High Court. In these circumstances no interference was made in the order of High Court condoning the delay. However, the applicability of section 5 of the Limitation Act, 1908 to the civil revision petitions under section 115, C.P.C. was left open. Subsequently in the case of Allah Dina and another v. Muhammad Shah and others (2001 SCMR 286) the Hon'ble Supreme Court laid down as under:-- "Where the law under which the proceedings have been launched prescribes itself a period of limitation like under section 115, C.P.C. then benefit of section 5 of the Limitation Act cannot be availed unless it has been mad applicable as per section 29(2) of the Limitation Act as held in cases". In the case of Muhammad Bashir and another v. Province of Punjab (supra) the Hon'ble Supreme Court did not consider the question of applicability of section 5 of the Limitation Act, 1908 to the civil revision petitions instituted under section 115, C.P.C. but upheld the condonation of delay granted by the High Court. It appears that Allah Dino's case was not brought to the notice of the Hon'ble Supreme Court. In this view of the matter the Hon'ble apex Court can only decide the controversy. However, since there is a specific judgment Allah Dino and another v. Muhammad Shah and others (supra) by the Hon'ble Supreme Court on the point in issue, I, therefore, dismiss this revision petition. As far as the question of exercising the suo motu jurisdiction is concerned, suffice A to say that the Court did not feel it is a fit case for the exercise of suo motu jurisdiction. This petition has no merit and is dismissed in limine. H.B.T./H-30/L Petition dismissed.