PLJ 2010
[
Present: Hafiz Abdul Rehman Ansari, J.
Mst. HALEEMA MAI--Petitioner
versus
Mst. BEGUM MAI and 4 others--Respondents
C.R. No. 520-D of 2010, decided on
29.4.2010.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Limitation Act, 1908, S.
29(2)--Limitation for filing of revision petition--Applicability of S. 29(2) of
Limitation Act--Determination of period of limitation--Since the period of
limitation had been prescribed in S. 115, CPC, for filing of revision petition,
which is 90 days, same being a special law, provisions of S. 29(2) of
Limitation Act, 1908 would be applicable and for the determination of period of
limitation, all the provisions except Sections, 4, 9, to 18 & 22 would not
apply. [P. 669] C
Concurrent findings--
----Civil revision--Concurrent findings
cannot be disturbed in the civil revision unless there is some jurisdictional
error pointed out. [P. 669 A
Limitation Act, 1908 (IX of 1908)--
----S. 5--Civil Procedure Code, (V of
1908), S. 115--Civil revision--Time barred for about seven months--Delay in
filing the revision petition cannot be condoned--Revisional
jurisdiction--Application u/S. 5 of Limitation Act, was appended with civil
revision for condonation delay of near about seventh months--Delay in filing
the revision petition cannot be condoned by exercising jurisdiction u/S. 5 of
Limitation Act or by suo motu exercise in revisional jurisdiction as S. 5 of
Limitation Act is not made applicable in S. 115 of CPC, in which special
limitation of 90 days is prescribed for filing a civil revision--Held: Delay in
filing the revision petition beyond the period of 90 days prescribed u/S. 115,
CPC cannot be condoned u/S. 5 of Limitation Act as the operation of S. 5 was
expressly excluded by S. 29(2) of Limitation Act. [P. 669] B & D
2001 SCMR 286, 2004 SCMR
1630 & 2006 SCMR 676, rel.
Mr. Muhammad Saqib Naeem, Adv., for
Petitioner.
Date of hearing: 29.4.2010.
Order
Mst. Haleema Mai, daughter of Zohran Mai,
petitioner through the instant Civil Revision petition calls in question the
judgments and decrees dated 12.0.9.2008 and 09.06.2009, respectively passed by
the learned Civil Judge, Lodhran, and the learned Additional District Judge,
Lodhran.
2.
Brief facts of the case are that Mst. Haleema Mai filed a suit for
declaration against Mst. Begum Mai, Muhammad Tufail, Khurshid Ahmad, Rashid
Ahmad, Abdul Hameed by alleging that she is owner in possession of the property
mentioned in Khewat No. 421, 12 Kanals to the extent of five Marlas according
to the record of rights for the year 1991-92, Dakhli Mouza Thadha Thaheem,
Tehsil Lodhran. She further alleged in the plaint that Mutation No. 1891 dated
31.08.1994 was against law and facts, which creates no right upon the rights of
petitioner-plaintiff. She prayed that Mutation No. 1891 be set aside and decree
be passed in her favour. She in her plaint attacked upon the Mutation No. 1891
on various grounds that she did not appear before the Revenue Officer and the
property in dispute was not alienated by her to any one. Possession was not
delivered. The respondents-defendants resisted the suit by filing written
statement.
3.
From the divergent pleadings of the parties the learned trial Court
framed the following issues:--
1. Whether
the Mutation No. 1891 dated 31.8.1994 is illegal, against facts, void, result
of fraud impersonation and ineffective upon the rights of the plaintiff? OPP..
2. If
the above mentioned issue is answered in affirmative, then whether the
plaintiff is entitled to get decree for declaration as prayed for?OPP.
3. Whether
the plaintiff has got no cause of action and locus-standi to file the instant
suit?OPD
4. Whether
the plaintiff is estopped by her words and conduct from filing the suit?OPD
5. Whether
the suit has not improperly been valued for the purpose of Court fee and
jurisdiction? OPD
6. Whether
the description of the suit property has not been given correctly and the suit
is liable to be dismissed? OPD
7. Whether
the defendant has filed the instant suit mala fide and the defendant is
entitled to recover special costs under Section 35-A CPC?OPD
8. Relief.
4.
Both the parties produced their evidence before the learned trial Court.
Mst. Haleema Mai appeared as PW-1 and produced Mutation No. 1891 dated
31.08.1994 Exh.P.1, Khasra Girdawari Exh.P.2. The defendants-respondents
produced Mst. Begum Mai as DW-1 and closed the evidence of the defendants.
5.
The learned Civil Judge after hearing the parties and perusing the
evidence dismissed the suit of the petitioner vide
judgment and decree dated 12.09.2008. The petitioner-plaintiff filed an appeal
before the learned District Judge, Lodhran, on 23.09.2008, and the learned
Additional District Judge vide judgment and decree dated 09.06.2009 dismissed
the same.
6.
I have heard the learned counsel for the petitioner and perused the
file. The learned trial Court rightly decided Issue No. 1, which is pivotal
one, against the plaintiff by observing that:--
"The onus of this issue was on the
plaintiff. As per her version the impugned mutation is result of fraud, but the
detail of fraud are neither mentioned in the plaint
nor in her statement. Nikah between Abdul Sattar and defendant is an admitted
fact. Presence of Abdul Ghafoor, i.e. husband of the plaintiff at the time of
Nikah and his thumb impression on Nikahnama Exh.PD-1 is also an admitted fact.
Talaq between Abdul Sattar i.e. son of the plaintiff and Begum, Mai defendant
is also an admitted fact. Further-more, she did not challenge the entries of
Nikahnama. The defendant has proved that suit land was transferred by the
plaintiff as dower to her. The plaintiff failed to discharge the onus by
producing cogent evidence."
The other Issues Nos. 2, 3 and 4 were also
decided against the plaintiff and in favour of the defendant-respondents by the
learned trial Court, and Issues Nos.5 and 6 were disposed of. The learned First
Appellate Court has upheld the findings of the learned Civil Judge on all the
issues by giving cogent reasons.
7.
There are concurrent findings of both the Courts below with regard to
law and facts. Both the Courts have given cogent reasons for deciding the lis
against the petitioner-plaintiff.
8.
Concurrent findings cannot be disturbed in the civil revision unless
there is some jurisdictional error pointed out. In spite of that, without
dilating upon the merits of the case, this civil revision is hopelessly time
barred for about seven months, which should have been filed within ninety days.
Application under Section 5 of the Limitation Act is appended with the civil
revision for condonation of delay of near about 07 months. Delay in filing the
revision petition cannot be condoned by exercising jurisdiction under Section 5
of the Limitation Act or by suo motu exercise in revisional jurisdiction as
Section 5 of the Limitation Act is not made applicable in Section 115 CPC, in
which special limitation of 90 days is prescribed for filing a civil revision.
Since the period of limitation has been prescribed in Section 115, CPC, for
filing of revision petition, which is 90 days, same being a special law,
provisions of Section 29(2) of the Limitation Act, 1908 would be applicable and
for the determination of period of limitation, all the provisions (except
Sections 4, 9 to 18 and 22) would not apply. Section 5 of the Limitation Act,
1908, in circumstances would not apply to civil revisions. Delay in filing the
revision petition beyond the period of 90 days prescribed under Section 115,
CPC cannot be condoned under Section 5 of the Limitation Act as the operation
of said section was expressly excluded by Section 29(2) of the Limitation Act.
Reliance is placed on the case reported as Allah Pino vs. Muhammad Shah (2001
SCMR 286) and Haji Ahmad vs. Noor Muhammad (2004 SCMR 1630) and City District
Government vs. Muhammad Saeed Amin (2006 SCMR 676) of is excluded. Therefore,
this revision petition is dismissed in limine.
(R.A.) Petition
dismissed.