P L D 2004 Lahore 91 (PLP)

MUHAMMAD MUZAMMAL KHAN, J.

Instant composite application under Order XLVI1, rule 1 and section 12(2), C.P.C. mainly seeks review of judgment/order dated 4-7-1996 .passed in Civil Revision No.879 of 1996 by our learned brother Munir A. Sheikh, J. (as he then was), dismissing civil revision of the petitioners, in limine, affirming concurrent findings of fact recorded bay the two Court below, for the reasons detailed in the application.

2. Learned counsel appearing on behalf of the respondent raised two preliminary objections regarding maintainability of application in. hand; first biting that under Article 173 of the Limitation Act, 1908 limitation for filing a reviewed application is 90 days whereas, this petition was filed beyond the prescribed limitation arid the same is barred by 20 days; and secondly that averments regarding annulment of 'decree under section 12(2), C.P.C. relate to appellate judgment and thus petition under section 12(2), C.P.C. is. not maintainable before this Court. Learned counsel for the respondent elaborating his arguments submitted that the petitioners have filed an application under section 5 of the Limitation Act, 1908 seeking condonation of delay, wherein the ground urged is that they had applied for certified copies of the judgment under review, which were delivered to them on 16-9-1996 and thus the review petition after excluding time requisite for obtaining certified copies is maintainable but this ground is tactually incorrect because those copies were obtained for Supreme Court use and on the basis thereof, limitation for filing this review petition, cannot be condoned. He in support of his submission, relied on the judgment given in the cases of Ahmad Din v. Mst. Syran Bi and others 1980 SCMR 959 and A. Ghafoor v. Mst. Amino Fatima 1985 CLC 180: Opposing maintainability of the composite application seeking review and initiation of proceedings under section 12(2), C.P.C., learned counsel for the respondent emphasized that, such an application is not maintainable under law and in this behalf he referred to judgment in the cases of Ali Muhammad Brohi v. Haji Muhammad Hashim PLD 1983 Kar. 527; Ghulam Sarwar v. Muhammad Hussain and others 1987 SCMR 1440 and Mrs. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296.

3. Learned counsel appearing on behalf of the petitioners, refuting objections of .the respondent, submitted that no doubt copies of the judgment passed in the civil revision, were obtained by the petitioners for Supreme Court use, but since a ph9tostat copy of this copy was produced along with review petition and petitioners did not press their petition , before the Honourable Supreme Court, for following their case before this Court, as such, on the basis of those certified copies delay in filing the L review petition is liable to be coridoned. He further submits that the petitioners dial file a civil petition before the Honourable Supreme Court but withdrew the same without adjudication with a view to follow instant review petition. Learned counsel for the petitioners while replying to the objection regarding maintainability of application under section 12(2), C.P.C., urged that appellate judgment was earned by the respondent through fraud and thus this Court can proceed under this provision of law for annulling the judgment and decree passed by the Appellate Court. While concluding his arguments learned counsel requested that if this Court comes to the conclusion that his application under section 12(2), C.P.C, is not maintainable here, the same may be remitted to the learned District Judge for its adjudication. He referred to judgment in the case of Muhammad Iqbal and another v. Muhammad' Alamgir and others 1990 SCIVIR 1377.

4. We have anxiously considered the arguments of the learned counsel for the parties and have examined the record. Civil revision was decided by the learned Single Judge in Chambers of this Court on-4-7-1996, In this manner, period of 90 days as provided by Article 173 of the Limitation Act, 1908 was. to expire on 3-10-1996 before which petitioners could have filed the review petition, but filed it on 23-10-1996 with a delay of 20 days.

5. The only ground urged for condonation of delay in filing the review application, as noted above, is exclusion of time spent for obtaining certified copies which, undeniably, were obtained for Supreme Court use. Petitioners applied for certified copies for Supreme Court use on 30-7-1996 and those were supplied to them on 12-9-1996. Law is settled that review application can be filed without certified copies of the judgment under review but in case petitioners apply for certified copies for this purpose, time spent in this exercise can be excluded from the period of limitation. In the instant case, copies were not applied for filing review application, thus it is patently barred be limitation. Now it is to be seen whether delay in filing review application can be condoned on the basis of certified copies obtained by the petitioners for Supreme Court use, we are of the considered view that on that score the delay cannot be condoned because petitioners after obtaining certified copies did use those copies by filing a civil petition before the Honourable Supreme Court and it s immaterial whether they got any adjudication in this petition or not and withdrew the same to follow this review application. Since those copies were not obtained for filing review application on the basis of those, petitioners cannot be given any further grace period by condonation of delay. A similar situation arose in the case of Ahmad Din v. Mst. Syran Bi etc. (supra) and this controversy was put to rest, by holding that since certified copies of the High Court's order passed in revision, were not filed in support of review application, thus the time taken in obtaining such copies, cannot be considered, time required within the meaning of section 12 of the Limitation Act for filing a review application. A similar view was taken by a learned Division Bench of this Court in the cases of Ghulam Hussain Shah v. Ghulam Muhammad PLD 1966 (W.P.) Baghdad -ul-Jadid 11 and Abdul Karim v. Sheikh Muhammad and others PLD 1966 (W.P.) Baghdad-ul-Jadid 14 and A. Ghafoor v. Mst. Amina Fatima (supra) that certified copies of the judgment and decree, under review, are not required to be filed with review application and if some body applies for certified copies for filing review, time spent for obtaining those copies can be excluded if those copies are produced with review petition but the Court will not consider for condonation of delay, copies obtained for any other use and not filed with the review petition.

6. We, accordingly, respectfully following the view taken by the Honourable Supreme Court in the case of Ahmad Din v. Mst. Syran 131 etc. (supra), hold that review application filed by the petitioner is barred by limitation and delay in filing it, cannot be condoned under section 12 of the Limitation Act. 1908, for obtaining certified copies of the judgment under review which was neither needed for filing the review application nor were obtained for this purpose. We also hold that time spent in obtaining certified copies for Supreme Court use cannot be excluded from the period of limitation for filing the petition, in hand.

7. Taking up the objection regarding maintainability of a composite application, as noted above; we must observe that Civil Revision No.879 of 1996 was decided in limine in absence of the respondent, thus there is no question of any fraud by him qua this Court. We have also examines the petition and its ground "h" at its page 24 detailing fraudulent acts the respondent, on the basis of which petitioners seek annulment or judgment and decree passed by the Appellate Court. We are unable to understand how under the provisions of section 12(2), C.P.C. we can set aside or annul judgment and decree passed by the Appellate Court, thus' part of the application relating to initiation of proceedings under section 12(2), C.P.C. is not maintainable before this Court. Petitioners may, if so advised, file directly any such petition before the Court concerned and we are not ready to remit it to the Appellate Court. Judgment in the case of Muhammad Iqbal and another v. Muhammad Alamgir and others (supra) relied by the learned counsel for the petitioners, proceeds on altogether different facts and circumstances and has no applicability to the case in hand, thus we respectfully hold that this judgment is not of any help to the petitioners' case and they may seek their remedy available to them, under law.

8. For what has been discussed above, we hold that review' application is barred by limitation and there is no sufficient cause for condonation of delay and thus dismiss it, as barred by limitation, the other part of the application relating to section 12(2), C.P.C. we hold that to this extent the petition is not maintainable before this Court and consequently dismiss it as observed above, leaving the parties to bear their own costs. S.A.K./M-2390/L Petition dismissed.