MRS. FAKHAR-UN-NISA KHOKHAR, J.--- Brief facts in the instant Civil Revision are that on Dilawar son of Sajawal was the paternal uncle of the petitioner and respondent No. 4. He died issueless leaving behind his real nephews the petitioner and respondent No. 4 as legal heirs. Dilawar deceased was owner of agricultural land in Khata No. 36, Khatooni No. 131 to 136 measuring 331 Kanals, 7 Marlas situated in Chak No. 42/GB Tehsil Samundari District, Faisalabad. The respondents Nos. 1, 2,
7. And Noor managed oral sale of property of Dilawar deceased in the revenue record vide mutation No. 437, dated 26.5:1985 in consideration of Rs.6,60,000/- in the name of respondents Nos. 1 and 2.
Dilawar deceased in his lifetime, when he came to know about the alleged transaction got cancelled mutation No. 437 on 30.6.1988. Another mutation No. 466 in favour of respondents Nos. 1 and 2 got sanctioned on 31.12.1988 in consideration of Rs.6,60,000/-. This mutation was also challenged by the petitioner through appeal before the Assistant Collector, Samundari, which was accepted on 18.2.1990 and mutation No. 466 was cancelled. On appeal filed by respondents Nos. 1 and 2 before the Commissioner, Faisalabad Division, Faisalabad against the order dated 18.2.1990, the same was accepted and remanded to the Collector, Samundari on the ground that matter regarding the condonation of delay has not been decided by the Collector. After the remand of case the Collector vide order dated 21.4.1991 dismissed the appeal filed by the petitioner. Petitioner challenged the validity of order dated 21.4.1991 through revision, which was decided vide order dated 5.8.1992 by the Commissioner, Faisalabad that if the party feel that fraud is committed, the remedy is in the Civil Court. 'Thereafter petitioner filed a civil suit for declaration challenging the vires of mutation No. 466, dated 21.12.1988 on the basis that mutation is the out come of fraud, misrepresentation and is collusive and orders of the revenue authorities were also coloured and is anti-dated mutation as Noor brother of respondent No. 7 was MPA from PP-47 Tandlianwala and he was exercising his influence over the revenue authorities. The suit was contested by the adverse party by filing written statement. Issues were formulated and the case was fixed for evidence.
When in the year, 1994 the petitioner and his sons were roped in F.I.R. - registered under Sections 302/324/148/149/109/337, PPC on 12.2.1994 for the murder of relative of respondents Nos. 1 and 2 Mst.
Samina. The case was fixed for evidence and the petitioner was arrested in the aforesaid criminal case. On 31.10.1994 the petitioner filed an application before the learned Civil Judge, Faisalabad informing him that he had been arrested in murder case alongwith his sons and requested that the case may be adjourned sine die but this application was dismissed vide order dated 31.10.1994.
Another application was sent by the petitioner through the Superintendent of Jail in which he requested to the learned Trial Court for summoning him in Court from jail for pursuing his case and enable him to appoint a counsel or attorney to pursue his case. This application was dismissed vide order dated 20.11.1995 and on the same date the learned Trial Court closed the evidence of the plaintiff under Order XVII, 'Rule 3, CPC and dismissed the suit of the petitioner. An appeal, was filed against the judgment and decree dated 20.11.1995, which too was dismissed in limine by, the learned District Judge, Faisalabad vide judgment and decree dated. 11.3.1996 on limitation. The suit and appeal were dismissed during the period when the petitioner was in jail. He was released on bail on 19.6.1996 but his two sons were confined in jail. By coming to know about the case he filed an application before the learned District Judge under Section 114, Order XLVII, Rules 1 and 2 read with Section 151, CPC for recalling the judgment and decree dated 11.3.1996 and for setting aside the judgment and decree dated 20.11.1995 passed by the learned Civil Judge, but the review petition was dismissed on 29.5.1997 and being aggrieved from the judgments and decrees dated 20.11.1995 passed by the learned Civil Judge and 11.3.1996 passed by the learned District Judge and order dated 29.5.1997 passed by the learned District Judge in review the petitioner has filed the instant Civil Revision.
2. Arguments advanced by learned counsel for the pititioner are that the arguments were heard and appeal was dismissed in limine vide judgment dated 11.3.1996 by the learned District Judge observing that co-plaintiff was absconder and could have pursued civil suit. The dismissal of appeal at preliminary stage was brought to the notice of the petitioner who was in jail after expiry of a few months. He was released on bail and was advised by learned counsel to file a review petition, and this was incorrect advice. Application for condonation of delay was also filed. This is admitted fact that he was in jail when the learned Trial Court attracted the punitive provisions of Order XVII, Rule 3, CPC and closed the evidence of the petitioner knowingly that the petitioner was persistently informing the Court that he is confined in jail requesting to summon him from the jail so that he could engage a counsel and pursue his case but he was condemned unheard. The case of-the petitioner was that he and his brother were the legal heirs of one Dilawar, who during his life-time had got cancelled the mutation of sale on the similar consideration against the same respondents. The subsequent mutation of inheritance was not only collusive but anti-dated and was forged and based on fraud and this mutation was set aside by the revenue authorities but under the influence of brother of the respondents, who was MPA the higher revenue officers reversed the decision and petitioner's valuable right was to be determined by the Court. The technicalities should not have been allowed to hinder the dispensation of justice in a case of this nature where petitioner had never been at fault or negligent, relied on Zabita Khan and others v. Saleh Muhammad and others (1989 SCMR 141). He further argued that the principle of justice was behind all legal formalities is to safeguard the paramount interest of justice. Mere technicalities, unless offering insurmountable hurdles not to be allowed to defeat ends of justice and will never stand in the way of justice unless they present a hurdle brushing aside which might lead to unsettlement and uncertainty of taw Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678). Since a material irregularity was committed by the learned Trial Court while dismissing the suit of the petitioner as a penalty it is revisable order. The instant revision petition is competent against the main order passed in appeal through which the appeal was dismissed in limine. As the dismissal of appeal was not brought to the notice of the petitioner in jail in time to avoiding the responsibility, the learned Advocate choose to file a review petition so that the limitation could be covered. The provisions of Section 115, CPC are to rectify the material irregularities committed by the subordinate Courts and hence, suit of the petitioner is liable to be restored for recording of evidence.
3, Learned counsel for the respondents argued that suit was originally filed by the petitioner/plaintiff and Rehmat A.I, who was not in jail. He could have brought the evidence.
Petitioner filed an appeal against the judgment and decree dated 20.11.1995, which was dismissed on 11.3.1996 and he has filed the instant Civil Revision against the judgment and decree dated 11.3.1996 and filed review petition on 17.10.1996. Rehmat A.I was impleaded as respondent but the review petition which was filed by Mukhtar Ahmad petitioner was dismissed on 29.5.1997 on the ground of limitation, appeal was dismissed on 11.2.1996 but the revision was filed on 17.10.1996. It was stated in revision petition that he was in jail, therefore, the delay may be condoned. The Appellate Court observed that on 11.3.1996 the appeal was dismissed and it came to the knowledge of petitioner. In June, 1996 and review petition is time-barred. The petitioner has not mentioned as to when he was released from jail infact his counsel did not inform him about the decision of the appeal, it was not supported with any affidavit of the learned counsel. If calculated from June, 1996 review petitioner having been instituted on 19.10.1.996 is time-barred. Learned Judge rightly dismissed the review petition on 29.5.1997. Under Article 173 of the Limitation' Act, 1908 days are provided for filing an application for review which expired on 11.6.1996 and review can only be filed to discover the new matter and mistake/error on the face of the record u/S. 114 and Order XLVII, CPC. Mere arguing that review was filed on incorrect advice of Advocate is not a question to avoid the question of limitation instant civil revision against the judgment and decree dated 11.3.1996 is not maintainable, as the revision petition was filed on 25.8.1997 and application for condonation of delay under Section 5 of the Limitation Act is not applicable to the proceedings of revision petition.
It is also to note that suit was filed by two' brothers Mukhtar and Rehmat A.I and Rehmat A.I never challenged any order in appeal or in review petition and now in revision petition as the orders dated 29.5.1997, 11.3.1996 and 20.11.1995 are patently legal, therefore, this civil revision is liable to be dismissed, relied on Deputy Commissioner, Pishin v, Abdul Salam and others (PLD 1993 Quetta 121), where it was held that revision petition filed beyond prescribed period of limitation would not be entertainable :
4. I have heard the learned counsel for the Parties and perused the record. The impugned mutation was challenged being forged, out come of fraud and collusive of revenue authorities, by the legal heirs of deceased. Earlier mutation for sale of the entire holding of deceased was challenged by the deceased during his life-time and was set- aside by the revenue authorities between the same parties and on the same consideration. Fraud if proved vitiates all the transactions and whenever it comes to the knowledge of the Court, the Courts are under a duty of law to give an opportunity to the parties to produce evidence in order to prove their versions. Averments in the pleadings of the parties were very clear that earlier a mutation No. 437 through an oral transaction was got reported in "roznamcha waqiati No. 744" on 20.5.1988 and the same day the oral mutation No. 437 in respect of oral transaction of sale was sanctioned in consideration of 'Rs.6,6Q,000/- and it was got set aside by the deceased and the deceased died on 11.2.1989. Again mutation No. 466 of sale got sanctioned in the same consideration of Rs.6,60,000/- on 12.12.1988 and on the impugned mutation the date of sanction is recorded 31.12.1988.
5. From the perusal of impugned order passed by the learned Trial Court dated 29.11.1995 commences as below:- "The application of plaintiff No. 1 through Superintendent of jail is included in the file. According to it, the plaintiff No. 1 asked for his being summoned in Court for pursuing of his case and to appoint any counsel or attorney with contention that he cannot appoint any counsel from jail."
There was no occasion for the learned Trial. Court to attract the punitive provisions of Order XVII, Rule 3, CPC for closing the evidence and without providing an opportunity to the plaintiff to produce evidence for dismissing the suit. The matter was about inheritance of the legal heirs and the interest of the legal heirs can be adverse to each other. The Court was fully in the aware and it was knowledge the petitioner and his four sons were roped in a criminal case and co-plaintiff was Proclaimed Offender. Under such circumstances it was the duty of the Court to summon the petitioner from jail and give him an opportunity to appoint a counsel and produce the evidence.
The provision of Order XVII, Rule 3, CPC itself show-- "Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith." This punitive order is passed when the Court is -,dis allowing the attendance of the petitioner/plaintiff who is confined` in jail and has without any default placed an application before the learned Court for summoning him from person. It is really surprising how the learned Trial Court dismissed the application for summoning the plaintiff from the Court and producing evidence and attracted the punitive provision of Order XVII, Rule 3, CPC against a person whose attendance in Court was beyond his control and was not within his power and his conduct was not contumacious and the fact is also within the knowledge of the Court that the co-plaintiff is Proclaimed Offender and petitioner's sons were also roped in murder case. This is an order, which on its face is an, arbitrary, inequitable, unjust order suffering with material irregularities and this is exactly the Hon'ble Supreme Court has observed in Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678) that principle object behind all legal formalities is to safeguard the paramount interest of justice and legal formalities and technicalities unless offering insurmountable hurdles not to be allowed to defeat ends of justice. In the same judgment the Hon'ble Supreme Court has observed that High Court nevertheless, in appropriate case, can interfere in revision under Section 115 and may make such order-in the case as it thinks fit.
6. It is also admitted fact that during the appeal the appellant was in jail. Even the Court who passed the punitive order failed to send a copy to the, plaintiff in jail about the rejection of his request for procuring his attendance in the Court, and dismissal of his case then how the limitation will run against a person, who is confined in jail and is not allowed to attend his proceedings despite his request from prison. Both the learned Courts below have not applied their mind to the circumstances of the present case that fraud was alleged by the legal heirs, who were deprived from their right of inheritance and the basic order passed by the learned Trial Court was arbitrary inequitable and void and no limitation runs against such impugned order hence, this Civil Revision is accepted orders dated 20.11.1995, 11.3.1995 and 29.5.1997 are set aside and the case is remanded to the learned Trial Court to decide the case afresh after giving an opportunity of producing evidence to both the parties. No order as to costs. .