2002 SCMR 671 (PLP)

M. Hussain Lughmani, Advocate Supreme Court for Respondents. Date of hearing: 19th March, 2001 CH. MUHAMMAD ARIF, J.‑‑‑Leave to appeal is sought against judgment dated 14‑1‑2000 passed by a learned Judge in Chambers of the Peshawar High Court, Bench Abbottabad, dismissing Civil Revision No.77 of 1999 brought by petitioner Azhar‑ud‑Din against order dated 23‑7‑1999 passed by a learned Additional District Judge, Mansehra, whereby the revision petition brought by petitioner Azhar‑ud‑din against dismissal of his application by the trial Court seeking amendment in the pleadings of the defendant/petitioner on account of the fact that another Attorney had been constituted by him, was dismissed as withdrawn.

2. There is no need for making any detailed reference to the facts of the case leading to the present proceedings. Suffice it to say that the learned Judge in Chambers duly noticed all the stages in the suit between the parties and came to the conclusion that the trial Court was quite right in disallowing the application for effecting amendment in the pleadings of the petitioner, as defendant in the suit, value whereof for purposes of court‑fee and jurisdiction was Rs.50,00,

000. After noticing that the revision petition filed before the District Judge, Mansehra under section 115, C.P.C. was contested by the other side; which made an application before the revisional forum on 8‑4‑1999 objecting to the very maintainability of the petition before the learned District Judge/Additional Judge, Manschra; the application for withdrawal of the revision petition was submitted on 2‑7‑1999 was allowed by order dated 23‑7‑1999 with the observation "the application for the return ref revision is accented and petitioner may seek remedy before appropriate forum subject to all valid and legal objections available to the respondents under Order VII, rule 10, C.P.C." and the petitioner tiled Revision Petition No.77 of 1999 in the High Court on 2‑8‑1999. It was held in para.4 of the impugned judgment dated 14‑1‑2000 as below: "The above mentioned facts clearly show that the revision petition is barred by time as the same was filed after 90 days of the passing of the impugned order. An application for condonation of delay had been moved by the petitioner but no cogent reasons have been advanced for condonation of delay. It was the duty of the petitioner to have been vigilant while filing the revision petition was to which Court the same would lie. The provisions of section 115 (sub section (2) are very clear which are reproduced:‑‑ 'The District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value. of the subject‑matter whereas does not exceed the limits of the appellate jurisdiction of District Court. In the case in hand the suit has been valued for the purpose of jurisdiction as Rs.50,00,000 and the learned District Judge, keeping in view the valuation of the suit lacked jurisdiction to entertain the same. It was pointed out by the respondents by submitting an application on 4‑3‑1999 that the Court of the District Judge lacked jurisdiction but instead of accepting the proposition the application was contested by the petitioner and it was after lapse of about 4 months that the petitioner realized that the Court of learned District Judge did not have jurisdiction to entertain the same, hence the same was withdrawn with the permission to file the revision petition before this Court. The learned counsel for the petitioner has not been able to explain the delay of each day in tiling the revision petition. Neither any cogent reason has been advanced at bar nor mentioned in the application. The only ground urged was that there are complicated questions of law involved, hence the delay be condoned. This Court after hearing the learned counsel for the parties at length and perusing the record has come to the conclusion that there is no such complicated question of law involved: The provisions of section 115 are very clear and it was the duty of the petitioner and his counsel to have been vigilant in filing the revision petition in the competent court of law. The revision petition in hand is hopelessly barred by time, hence is dismissed in limine alongwith C. Ms. 105 of 1999 and 106 of 1999."

3. Hence this petition.

4. Malik Fazal‑e‑Hussain, learned Advocate Supreme Court appearing in support of this petition confined his arguments to his contentions that (i) As the order passed by the trial Court declining amendments in the pleadings to the petitioner/defendant was void ab initio, therefore, the same cannot be sustained, and (ii) that the learned Judge in Chambers was in error in proceeding with the case in that only a Division Bench of the High Court was competent to hear this civil revision and, therefore, the impugned judgment suffers from inherent defects for which no period of limitation rules the lis. According to him, challenge being made against the impugn, judgment before this Court under clause (3) of Article 185 of Constitution of the Islamic Republic of Pakistan, 1973, is in order.

5. Mr. Muhammad Hussain Lughmani, learned Advocate Supreme Court for the respondents has supported the impugned judgment whole‑hog with the submission that there is no bar in law against a Single Judge of the High Court going ahead with the resolution of a revision petition brought by a litigant under section 115, C.P.C. without any limitation on the jurisdictional value of the suits/proceedings.

6. Taking the rostrum after Malik Fazal‑e‑Hussain, Mr. Lughmani made a reference to Hussain Bakhsh and others v. Settlement Commissioner and another (PLD 1969 Lahore 1039), Syed Muhammad Alain v. Syed Mehdi Hussain and 2 others (PLD 1970 Lahore 6) and 8yed Nazir Hassan v. Settlement Commissioner, Lyallpur and another (PLD 1974 Lahore 434) to contend that the impugned judgment of the High Court cannot be sustained as no limitation runs against orders of the kind/type which were the subject matter of the precedent cases.

7. We have considered the pleadings of the parties and have also gone through other material on the record. There is no force in the contention of the learned counsel for the petitioner that the order of the trial Court dated 11‑2‑1999 being coram non judice no period of limitation stands in his client's way to challenge the orders in revisional jurisdiction, of the High Court. It is an admitted position that initially the petitioner stuck to his plea that the Court of the learned District Judge had the jurisdiction to proceed with the resolution of the dispute and, it was only when the other side made an application seeking the dismissal of the same on the ground that it was prima facie not within the competence of the learned District Judge to hear it that the petitioner made an application seeking withdrawal of the memo. of revision before the learned District Judge to be presented before the High Court and the same prayer was allowed with the observation that the rights of the other side under Order VII; rule 11, C.P.C. would not be adversely , affected, in any manner.

8. We are not inclined to agree with the learned counsel for the petitioner that the order of the trial Court, disallowing the amendment in the pleadings of the petitioner/defendant, suffers from any defect which can lead to a challenge being made thereto, at any point of time. It is under the proviso, subsection (1) of section 115, C.P.C. that in addition to the requirement of appending copies of the pleadings, documents and order of the subordinate Court. It is also mandated that the outer time‑limit for a challenge thereto is 90 days. The learned counsel for the petitioner was not I in a position to controvert the above points and in the facts and circumstances of the instant case the learned Judge in Chambers was within his jurisdiction to resolve the controversy against the petitioner with the observation that he is himself to blame for the predicament in which he finds himself today.

9. For all that has gone before, the instant petition being sans merit, is liable to be dismissed. Order accordingly. S.A.K./A‑163/S Petition dismissed.