PLJ 2004
Present: MUHAMMAD MUZAMMAL KHAN, J. REHANA KAUSAR & 7 others-Petitioners
versus
FAQIR MUHAMMAD & another-Respondents W.P. No. 16015 of 2003, decided on 24.2.2004. Limitation Act, 1908 (X of 1908)--
—-S.
5-Civil Procedure Code, 1908 (V of 1908), S. 115-0, XXII, R. 4(1), 4(4) Constitution of
Held further : Provisions of Order XXII Rule 4(4) CPC were wrongly applied, thus judgment/order passed by Addl. District Judge is illegal, void and of no legal consequence-Petition succeeds.
[P. 1529, 1530 & 1531] A, B, C & D
Mirza Shahid Baig, Advocate for Petitioners. Ch. Inayat Ullah, Advocate for Respondent No. 1. Date of hearing: 24.2.2004.
order
This Constitutional petition seeks judgment/order dated 14.10.2003 passed by the learned Additional District Judge, Narowal, dismissing revision petition of the petitioners as barred by limitation, to be declared as illegal, void and of no legal consequences.
2. Precisely, relevant facts are that respondent filed
a suit for
declaration challenging Mutation No.
274 dated 30.12.1998
with
consequential relief of permanent
injunction, restraining the petitioners
from interfering into his lawful
possession over the land in question. Two
miscellaneous applications were filed
in the suit, one on behalf of the
heirs/legal representatives of Kabir Ahmed, who died pending suit, for their
impleadment, and the other on behalf of widow of Kabir Ahmed deceased for
setting aside ex-parte proceedings. Application seeking recall of ex-parte
proceedings was disposed of being
premature before impleadment of the
legal representatives of Kabir Ahmed deceased,
whereas the other
application seeking their impleadment was accepted by the trial Court vide
order dated 21.5.2003.
3. Respondent
aggrieved of impalement
of heirs/legal
representatives of Kabir Ahmed deceased, vide order dated
21.5.2003 filed a
revision petition before the learned
Additional District Judge, which was
accepted on 14.10.2003 setting aside
order dated 21.5.2003, but observing, at
the same time, that inspite of ex-parte proceedings, petitioner
can participate
in the proceedings before the trial Court. Petitioners aggrieved of acceptance
of revision petition by the learned
Additional District Judge, vide order dated
14.10.2003, have filed this Constitutional petition for the relief, noted
above.
4. Learned counsel for the petitioners submits that
revision petition
before the learned Additional District Judge (Respondent No. 2) was barred
by limitation, which having been provided by a special statute, could not be
condoned under Section 5 of the
Limitation Act and thus judgment/order
dated 14.10.2003 is illegal. He
further submits that impleadment of the
petitioners, in place of deceased
Kabir Ahmed as defendants to the suit was
strictly in accordance with the
provisions of Order XXII Rule 4(1) CPC, thus
the same could not have been
interfered with by Respondent No. 2. He
further elaborates his arguments by
saying that reasons on which limitation
for filing revision petition has been
condoned by the learned Additional
District Judge under Section 4 of the
Limitation Act were not available
because during summer vacations, there was Duty Judge working to entertain all kinds of matters involving limitation. He also contended that Section 12 of the Limitation Act has no application to the case in hand because time excluded by the revisional Court was not time requisite for obtaining copies of the 'order where-against the revision was filed.
5. Learned counsel appearing on behalf of Respondent
No. 1 refuted
the assertions of the petitioners,
supported the judgment/order passed by
the revisional Court and urged that
provisions of Section 12(2) of the
Limitation Act, 1908 would apply to
civil revision filed under Section 115
CPC, which cannot be read in
isolation to the Section 29(2) of the Limitation
Act and thus delay, if any, could be
condoned. In this behalf, he referred to
judgment in the case of Punjab Road Transport Corporation vs.
Muhammad
Iqbal Lodhi and another (2000 CLC 1539). He further contends that Kabir
Ahmed
deceased died without filing
written statement or list
of his
heirs/legal representatives as
required by Order XXII Rule 4(4) CPC, thus
striking of names of the petitioners
from the array of defendants as ordered
by the Court, was strictly in accordance with law and the order passed
by the
revisional Court cannot be declared as
void.
6. I have anxiously considered the respective
arguments of the
learned counsel for the parties and
have examined the record, appended
herewith. Undeniably, Kabir Ahmed deceased, died before filing his
written
statement and his heirs/legal representatives
filed an application for their
substitution in his place is within
time prescribed by law and the trial Court
acting under Order XXII Rule 4(1) CPC
directed their impleadment as
defendants in place of the deceased
defendant Kabir Ahmed. This provision
of law clearly provides that on an application made for impleadment of
legal
heirs, Court shall cause them to be
impleaded as defendants and thereafter
will proceed with the suit. Under the
same provision, persons so impleaded,
were to be allowed to make their
defence, as legal representatives of the
deceased defendant. Provision of
Order XXII Rule 4 (4), CPC would only
come into play when a defendant being
required to file written statement,
had failed to file it or did not
appear or did not contest the suit and only in
that case, judgment can be pronounced
against him, notwithstanding his
death and such judgment shall have the
same force as if it had been
pronounced before his death. In the
instant case, none of the eventualities
mentioned therein occurred because neither the deceased defendant in his
lifetime failed to file his written
statement nor he absented or deserted
contest of the suit. He died before the next date fixed for filing'of
his written
statement and no punitive action was taken by
the trial Judge for non-filing
of written statement on his behalf,
as he himself was on casual leave. In this
manner, to my mind, revisional Court has
taken incorrect view of those
provisions of law
and wrongly
reversed the order of the
trial Court
impleading the petitioners as
defendants in place of deceased defendant
Kabir Ahmed.
7. Trial Court allowed the petitioners to be impleaded as defendants
vide his order dated 21.5.2003 and this order was challenged through a
revision petition filed on 16.9.2003.
Respondent No. 1 applied for certified
copy of the order of the trial Court
on 3.6.2003, which was prepared on
11.6.2003, but was received on 31.7.2003.
Time requisite for obtaining
certified copies, which is to be excluded
from the prescribed period of
limitation is from the date of application till the date of
preparation of the
copy which in the instant case is eight days. By giving grace of eight
days to
Respondent No. 1 his period of limitation
was to expire, for filing of revision
petition within 90 days, on 29.8.2003,
but instead he filed the revision
petition on 16.9.2003. Though during the vacations, Duty Judges were
working to receive matters involving
limitations and of urgent nature and
Respondent No. 1 was not handicapped
or estopped for this reason from
filing the revision petition, yet
assuming that he could not file the revision
petition on account of vacations, even
in that case, revision petition should
have been filed on first day of
reopening of Courts, which were closed due to
summer vacation. Civil Courts
reopened on 1st of September 2003 and
Respondent No. 1 waited till 16.9.2003 to file the petition before the
learned
Additional District Judge. He has not
explained as to what stopped him for
long 15 days from filing the revision
petition. On the face of the record,
revision petition was barred by
limitation and there was no plausible
explanation/reason for condonation of delay. Under law, each day's delay has
to be explained, which is lacking in
the instant case.
an erroneous view for two reasons;
firstly, time requisite for obtaining
certified copies was calculated from
the date of application till its receipt; and
secondly, days of summer vacation were added to the limitation available
to
Respondent No. 1 for filing the
revision petition. Both the courses adopted
by the revisional
Court were not permissible under law. A litigant can claim
exclusion of time during which the
Court remained closed under Section 4 of
the Limitation Act, butjie- cannot claim addition to that period/to the time
available to him. It brings me to
conclude that revision petition before
Respondent No. 2 was barred by limitation and there was no explanation
for
condonation of delay of 15 days, as noted above.
8.
Respondent No. 1 did not move any application for condonation of
delay
which was, otherwise not permissible in view of judgments in the cases
of Allah
Dino and another vs. Muhammad Shah and others (2001 SCMR
286)
and Islamic Republic of Pakistan through Secretary Ministry of Defence
and
others vs. Masood Enterprises (PLJ 2001 Lahore 944)
and Respondent
No. 2
of his own on the basis of self-styled imaginary calculations concluded
that
the revision petition is within
time, but in view of my above
observations,
these calculations are not only contrary to law, but are also
factually
incorrect and on this basis Respondent No. 2 could not entertain a
time barred revision petition for making any interference in the order dated
21.5.2003 lawfully passed by
the learned trial Judge. Reliance by the learned
counsel for Respondent No. 1 on the judgment
in the case of Punjab Road
Transport Corporation (supra) is of no help to his case, because in this
judgment, it was held that according to Section 29(2) of the Limitation Act, 1908, provisions of its Sections 9 to 18 were applicable to applications and revision petition under Section 115 CPC being a petition under Section 12(2) of the Act ibid., time spent for obtaining copies of the impugned judgment was to be excluded. In the instant case, limitation was to be condoned under Section 5 of the Act ibid., which was not made application by Section 29(2) of the said Act, as held by the Honourable Supreme Court in the case of Allah Dino and another (supra).
9. For what has been discussed above, on the first hand, revision ', petition before Respondent No. 2 was barred by limitation and delay in filing' it could not have been condoned and on a time barred petition no interference could have been made and on the other hand, provisions of Order XXII Rule 4(4) CPC were wrongly applied, thus judgment/order dated i 14.10.2003 passed by the learned Additional District Judge, Narowal, is, declared to be illegal, void and of no legal consequence, with the result that order dated 21.5.2003 passed by the learned Civil Judge, Narowal, stands revived and this constitutional petition accordingly succeeds with no order as to costs.
(B.T.) Petition succeeds