2012 PLP 1006 (MLD)

NISAR HUSSAIN KHAN, J.

Petitioner has called in question the judgment and decree of learned Civil Judge Karak, dated 29-7-2002, and that of learned Additional District Judge-I, Karak, dated 5-5-2004, whereby pre-emption suit of the petitioner, was concurrently dismissed.

2. The stated facts of the case are that, petitioner Din Muhammad filed pre-emption suit against the defendant-vendee with regard to the suit property in respect whereof no mutation or registered deed, was attested in favour of the vendee-defendant. It was averred in the plaint that petitioner-plaintiff acquired knowledge of the sale on 22-3-1995, in presence of Muhammad Ali son of Enzar Gul and Sher Bahadar son of Amir Muhammad, when he went at the spot i.e. the suit property and found some construction material, lying therein, indicating that the suit property has been sold to the vendee-defendant. So he instantly performed Talb-e-Muwathibat, there and then. It is also averred in the plaint that notice Talb-e-Ishhad, was sent to the vendee-defendant on 25-3-1995, through registered letter AD and then suit was filed. In response to the suit, vendee-defendant filed written statement, wherein, he controverted all the allegations of the plaintiff. He specifically averred that he purchased the suit property with active participation of the plaintiff and constructed a house therein, by incurring huge amount. The parties were invited to lead evidence in support of their respective stance and on conclusion of trial; the suit was dismissed by the learned Trial Court, on the point of limitation. While the appeal filed by the petitioner, also met the same fate, hence, this revision petition.

3. Learned counsel for the petitioner argued that both the Courts below have wrongly non-suited the petitioner on the point of limitation. Whereas, he has adequately and lawfully performed Talb-e-Muwathibat and Talb-e-Ishhad, on acquiring the knowledge of the suit sale, which was not effected through any registered deed or mutation, but was through delivery of possession of the suit property. Thus his suit was liable to be decreed, as such he requested for acceptance of instant revision petition and grant of decree in favour of the petitioner.

4. Learned counsel for the respondent at the very outset, raised objection that instant petition is time barred, which is liable to be dismissed and the application for condonation of delay, filed by the petitioner, is not entertainable, as section 5 of the Limitation Act, 1908, is not applicable to the revision petitions. In response to which, learned counsel for the petitioner relied on the judgment of the Hon'ble Supreme Court, passed in case titled, "Mst. Banori v. Jilani through legal heirs" reported in PLD 2010 SC 1186 and another judgment of the full Bench of the Hon'ble apex Court, rendered in C.A. No.2650 of 2006, titled, "Hafeez Ahmed v. Civil Judge Lahore and others" decided in February, 2012, and argued that in view of the recent judgment of the Hon'ble apex Court, benefit of section 5 of the Limitation Act, can be availed in revision proceedings. Learned counsel for the respondent vehemently opposed the contention of the learned counsel for the petitioner on facts, as well, and sought the dismissal of the petition.

5. Arguments of the learned counsel for the parties heard and record perused with their valuable assistance.

6. Before dilating upon the applicability of section 5 of the Limitation Act and the question whether the petitioner can avail the benefit of recent judgment of the Hon'ble apex Court in Hafeez Ahmed's case, it would be advantageous to first discuss the merits of the case.

7. The perusal of the plaint of the petitioner transpires that he has mentioned the date of performance of Talb-e-Muwathibat and Talb-e-Ishhad, however, the place of performance of Talb-e-Muwathibat, mentioned in the plaint is ambiguous one, because the location or Khasra number of the property has not been clearly disclosed, where the plaintiff gained the knowledge and performed Talb-e-Muwathibat. He has made reference of the property, mentioned above, so by taking lenient view and giving him premium, it is assumed that he has mentioned the place of performance of Talb-e-Muwathibat in his plaint, but the other important ingredient viz. the time of Talb-e-muwathibat, is not mentioned, at all in the plaint. By now, it is settled law that, date, time and place of Talb-e-Muwathibat, are must to be mentioned in the plaint. If any one of them is missing, then suit of the pre-emptor, is liable to be dismissed, on this score alone. The logic behind the principle is that, pre-emptor must come with clear facts in his plaint, so that he should lead his evidence accordingly and may not improve his case during the trial, nor may make a departure therefrom.

8. Admittedly, no mutation or registered deed was attested in favour of the vendee-defendant and pre-emption suit has been filed on delivery of possession of the suit property. The plaintiff alleged that he came to know about delivery of possession of the suit property, to the vendee-defendant, on 22-3-1995, whereas the defendant, took a specific stance that after purchase of the suit property, he constructed a house by spending huge amount, which was in the knowledge of the pre-emptor. It is stated by the plaintiff in his cross-examination that vendee-defendant, did not raise any construction after institution of his suit. During the trial Naib Tehsildar Karak, was appointed as Commission by the Trial Court, to ascertain the market value of the house of the vendee-defendant. In his report Exh.CW.1/1, the learned Commissioner, reported that there is cemented construction of bricks in an area of 4 to

5. Kanals, in the suit property. On this report of Commissioner, the plaintiff has filed objections, wherein, he did not dispute the age of construction or the venue of construction. He simply objected on the market value, assessed by the commissioner, which means that the said construction was admittedly raised in the suit property. When this factual position is taken in juxtaposition with that part of the statement of the plaintiff, wherein he has stated that the defendant-vendee, did not raise any construction, after institution of the suit, it becomes abundantly clear, that firstly, such a huge construction cannot be raised within days or months but it might have consumed at least, a year, which could have not gone un noticed from the co-villagers. Thus, the story advanced by the petitioner-plaintiff, is unbelievable and has rightly been discarded by both the Courts below. Secondly, the time would not be computed from knowledge of the pre-emptor, but from the date, on which, the vendee takes physical possession of the property, if the sale is effected, otherwise, than through registered sale deed or mutation, in terms of section 31(c) of the N.-W.F.P. Pre-emption Act, 1987. The petitioner-plaintiff has failed to prove the date of taking over physical possession of the property. In plaint, plaintiff has alleged collection of some construction material. While during the trial, Commission was appointed for assessment of market value of a house, constructed in the suit property. The preponderance of evidence, clearly suggests that possession of suit property, was taken over by the vendee, much earlier, than as alleged by the petitioner. There was a suit of vendee against the vendor which was decreed in his favour, by the learned Appellate Court. Visualizing all these facts, one comes to an irresistible conclusion that, petitioner was rightly non-suited on the point of limitation.

9. The petitioner has filed an application for condonation of delay in filing the instant petition. After deducting the time, consumed by the petitioner, in obtaining the copies, this petition is delayed by 5 days, whereas in Mst. Banori's case section 12(2) of the Limitation Act, has been discussed and the petitioner can legitimately avail the benefit of the ibid section of law. However, section 29(2)(b) of Limitation Act, clearly bars, the application of section 5 of the ibid Act, to any local or special law, wherein limitation for filing suit, appeal or application, has been prescribed. As there is no provision for filing of revision petition, in the Limitation Act, rather section 115, C.P.C., itself prescribes limitation of 90 days, for filing of revision petition, so the provisions of section 5 of the Limitation Act, cannot be availed or invoked for condonation of delay. This proposition was resolved by the honourable Supreme Court in case titled, "Allah Dino and another v. Muhammad Shah and others" 2001 SCMR 286, and was held as under:-- "5 ..We have given our anxious thought to the proposition under examination. There is no cavil with the argument 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 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 made applicable as per section 29(2) of the Limitation Act, as held in the cases (i) The Canara Bank Ltd. v. The Warden 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. Fazal Hussain and others (1983 SCMR 1239), (iv) Collector 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)".

10. In a recent judgment of full Bench of the honourable apex Court, it was held that revision petition filed beyond the prescribed period, may be entertained, when the Revisional Court exercises suo motu Revisional jurisdiction, in a case, where the subordinate Court, has exercised the jurisdiction not vested in it or has failed to exercise the jurisdiction, so vested or has acted illegally or with material illegality. The principle expounded in the judgment very clearly envisages that, if the facts of the case earnestly demand the interference of the Revisional Court, for correction of the errors or illegality of the lower Tribunals, the Revisional Court should not withhold its exercise, merely on the point of limitation.

11. In the instant case, as discussed earlier, the petitioner-plaintiff has not only failed to mention date of Talb-e-Muwathibat in plaint, but has also failed to file suit within time. It is not merely a case of delayed revision petition but original suit is also time-barred. Thus, there is no jurisdictional defect or any illegality or material irregularity in the concurrent findings of facts recorded by both the courts below which may warrant interference of this Court, even beyond limitation. Therefore, this petition being without force is hereby dismissed with no order as to costs. M.W.A./113/P Petition dismissed.