' In the suit pending before the trial Court an order dated 5-6-2003 was passed whereby the right of the respondent to cross-examine the witnesses produced by the petitioner/plaintiff was closed.
A review petition was filed by the respondent, which was accompanied by an application under section 5 of Limitation Act, 1908. The review petition was accepted by the learned trial Court vide order 17-2-2004 whereagainst the appeal filed by the petitioner was dismissed by the learned Additional District Judge, Sargodha on 25-9-2004. These orders are sought to be assailed through this revision petition.
2. Placing reliance upon Dilmir v. Ghulam Muhammad and 2 others (PLD 2002 SC 403), it is contended by the learned counsel that the trial Court was duty bound in the first instance to consider the question of limitation and to decide the application made for condoning delay either way before decision of the review petition. The learned counsel for the respondent on the other hand contends that since the order dated 5-6-2003 was passed in the absence of the respondent the learned trial Court was justified in accepting the review petition.
3. The respective contentions have been considered. The perusal of the order passed by the trial Court shows that while accepting the review petition the Court did not pass any order whatsoever qua application under section 5 of Limitation Act, 1908. The review petition was accepted without condoning the delay in filing of the review petition,.
The learned counsel for the petitioner has quite aptly placed reliance upon Dilmir v. Ghulam Muhammad and 2 others (PLD 2002 SC 403), wherein it was laid down that "it is worth-mentioning that the question of limitation was neither dilated upon nor decided by the learned revisional Court.
In our considered view the question of limitation should have not been left unattended to having a substantial bearing on the fate of the case. It is bounden duty of the Court to notice the question of limitation irrespective of the fact whether it was agitated or not. In this regard we are fortified by the dictum laid down in case titled Muhammad Buta v. Habib Ahmad PLD 1985 SC 153. There is no cavil with the proposition that any order or judgment passed by trial, appellate or revisional Courts should be indicative of the fact that the Courts concerned were not only aware but conscious regarding the question of limitation be dealt with the same with diligent application of mind prior to dilating upon the deciding the controversy on merit because disposal on merit alone would not be sufficient to presume that the delay was condoned". In this regard reference can be made to case titled Ahsan Ali v. District Judge PLD 1969 SC 167, which still holds the field and relevant portion whereof is reproduced hereinbelow for ready reference:-- "It has also been held by this Court in several cases that mere disposal of the appeal on merits is not sufficient to lead to the inference that the delay must have been condoned. There must be something in the order or judgment itself to show that the Court concerned was conscious of the fact that the proceeding was out of time and had applied its mind to the question of limitation before dealing with the proceeding on merits, vide Ata Ullah Malik v. The Custodian of Evacuee Property and others PLD 1964 SC- 236; Syed Azmat Ali v. Chief Settlement and Rehabilitation Commissioner and others PLD 1964 SC 260 and Muhammad Farooq Imam v. Claims Commissioner and others PLD 1964 SC 585."
As to the effect of expiry of period of limitation it was observed in Sheikh Muhammad Saleem v. Faiz Ahmad (PLD 2003 SC 628) that "after the prescribed period of limitation has elapsed, the door of justice is closed and no plea of injustice, hardship or ignorance can be of any avail unless the delay of each day is properly explained and accounted for". It may be observed that it has been repeatedly held in several precedents of the Superior Courts that with the expiry of period prescribed, valuable rights accrue in favour of the other side.
4. In view of the above established legal position it was incumbent upon the trial Court to have first considered the application made by the respondent for condonation of delay before deciding the review petition. The review petition could only be decided on its merits if the same was found to be within limitation or the delay was condoned by the Court for sufficient and adequate reasons. In such view of the matter the order of trial Court dated 17-2-2004 being illegal and contrary to law, its affirmance by the appellate Court does not stand on better footing. Both are set aside.
' As a result, the review application as also the application of the respondent made under section 5 of Limitation Act, 1908 will be deemed pending before the trial Court, which will be heard and decided in accordance with law in the light of the above observations.
' The revision petition is accepted accordingly with no order as to costs.