Mst. Kishwar Naseem having been non-suited by the two learned Courts below, had filed this revision petition calling into question the legality, propriety and validity of the said judgments and decrees.
2. Arguments heard. Record perused.
3. Brief facts of the case are that, petitioner purchased the suit plot survey No,23 situate in Khaira Gali Ayubia, District Abbottabad, from the respondents-defendants in an open auction in the year 1967, for Rs,16,400. On confirmation of allotment, the petitioner deposited the entire sale price with the respondents-defendants against proper receipts along with other charges/fee, whereafter, permanent allotment order was issued to her. At the time of auction and allotment of the plot, the petitioner was admittedly residing in U.K., on the following address:- "Mrs. Nasim Greenways, 20 High Land Hale Sowell Wst Mid Land Bermingham 62-8 P.H. England." The petitioner stayed at U.K. Up to year 1995, where after she returned and instituted the first suit, after getting knowledge that the plot has been resumed and the allotment in her name has been cancelled by the respondents-defendant, vide impugned order dated 15th March, 1984. At the time of auction and allotment, the petitioner had given the address of one Abdul Wahab Qureshi, an employee of Railway Department, and in the year 1986 when she came to Pakistan for temporary stay, she wrote a letter, annexure E/2, to the respondents, giving the address of her brother, namely, Sultan Hameed Rizvi, the then Administrative Officer, requiring latest information from them about the plot on which she had already constructed two rooms. She was, as alleged, informed through Ex.P.W.1/X-8 that the plot has already been cancelled from her name and it could not be restored at this belated stage. Thus paddled up for litigation, she filed the first suit in 1995 which was rejected under Order VII, Rule 11, C.P.C., because the mandatory notice, required under section 86 of the Hazara Hill Tract Improvement Trust Ordinance, 1962, was not served on the respondents- defendants and when her appeal before the District Judge, against this order also failed, she instituted the present suit after giving the required notice which was, duly served on the respondents.
4. The defendants, contested the suit, by filing written statement, taking objections to the maintainability of the suit both on legal and factual premises and the learned trial Court framed the following issues:--
(1) Whether the plaintiff has got a cause of action?
(2) Whether the plaintiff by his own conduct is estopped from suing?
(3) Whether the suit is incompetent in its present form?
(4) Whether the suit is time-barred?
(5) Whether the suit is bad due to non-joinder and misjoinder of necessary parties?
(6) Whether the Court has got the jurisdiction to proceed with the present suit?
(7) Whether the suit is based on mala fide of the plaintiff hence liable to be dismissed with cost?
(8) Whether the plaintiff had purchased the suit property through auction with which defendants have got no concern whatsoever?
(9) Whether the defendants have got no right to cancel the allotment of suit plot to the plaintiff or to interfere in any manner in the possession of the plaintiff?
(10) Whether the plaintiff has failed to fulfill the terms and conditions of sale of suit plot in spite of availing several opportunities and extension for 21 years. If so its effect?
(11) Whether the plaintiff is entitled to the decree as prayed for in relief "Alif" and "Bay" of the plaint?
(12) Relief.
5. The parties adduced their evidence. Petitioner herself appeared as P.W.1 and supported her claim contained in the plaint and also produced her brother, namely, Sultan Hameed Rizvi as P.W.2 while from the defendants side one Mussadaq a senior clerk of "Galiyat Development Authority, Abbottabad" appeared as D.W.1 who brought on record different letters/notices which were allegedly sent to the petitioner at different occasions, with direction to execute a transfer deed and to register the plot in her name and to carry out the construction within stipulated period as required under the bye-laws. He also produced the last impugned order dated 15-3-1984 Ex.P.W.1/X-6.At the conclusion of the trial, the learned Civil Judge, Abbottabad dismissed the suit on 14-6-2000 mainly on the view that the conditions of the auction and bye-laws were not complied with by the petitioner despite of notices issued to her at different occasions and that she had failed to deposit the non-utilization fee about which, the second to last notice was given to her by the defendants and that she was having knowledge of such notices issued to her on the given addresses, duly proved to have reached her. It was further held that the suit, filed by the petitioner, was barred by time.
6. The said judgment and decree of the trial Court were impugned in Appeal No,12/13 of 2002, in the Court of District Judge, Abbottabad who while confirming the view taken by the trial Court, dismissed the appeal on 13-12-2002. The petitioner has impugned the judgments and decrees of both the learned Courts below on various grounds both legal and factual.
7. A preliminary objection was taken by the learned counsel for the respondents-defendants to the effect that, the revision petition has been filed beyond the statutory period of 90 days and being hopelessly barred by time, therefore, is liable to be dismissed as the petitioner is not entitled to the benefit of section 5 read with sections 12 and 29(2) of the Limitation Act being not applicable to revision petition. Reliance in this regard was placed on the view taken in case of Deputy Commissioner Pashin v. Abdul Salam and others (PLD 1993 Quetta 121), in the case of Sultan Khan and 3 others v. Sultan Khan (2004 MLD 918 Lahore), in the case of Gulzar Ahmad (2005 CLC 307 Lahore), in the case of Muhammad Islam (2004 MLD 1029), in the case of Ezat Khan (PLD, 2001 Karachi 396) and lastly on the view taken by the apex Court in case Allah Dino and another v.
Muhammad Shah and others (2001 SCMR 286).
8. To the contrary, learned counsel for the petitioner, placed reliance on the view taken in the case of Punjab Road Transport Corporation (2003 CLC 1239 (DB Lahore), in the case of Mst. Gohar Taja (2003 YLR 1994), and the one taken in the case of Faizullah and others (PLD 2003 Peshawar 217) and vehemently argued that the learned lower Court of appeal has failed to discharge its essential statutory obligation to provide copies of the decision within 3 days as required by the second proviso, thus the petitioner shall not suffer for the act of the Court. Additionally, he contended that the petitioner has applied for copies to the copying agency. On 13-12-2002, the date of the impugned judgment, as is evident from the application and the copy of the relevant page of the Register CD-1 of the copying agency bearing number 1888 registered on 13-12-2002 and that the petitioner, after return from U.K is permanently residing at Lahore, to whom, no notice was given at the time of application or thereafter, by copying agency regarding the preparation of the copies at any earlier date and when in fact the copies were prepared on 3-7-2004, the petitioner shall neither suffer for the act of the Court nor for the act of the officials of the copying agency who too have not discharged their statutory obligation as required under the provision of the copying agency manual. He further added that the impugned judgments are the result of complete misreading and non- reading of evidence and mis and non-application of correct law to the established facts, therefore, have caused serious miscarriage of justice, hence this Court is not denuded of suo motu authority/powers of revision to do substantial justice in the matter, leaving apart the question of technicality based on the point of limitation.
9. To understand, the true legal import of the law point involved, it is, necessary to reproduce the first and the second proviso added to section 115, C.P.0 by Ordinance X of 1980 and Act VI of 1992:-- Proviso first.--"(Provided that, where a person makes an application under this subsection, which shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court)"
Proviso second: "(Provided that such application shall be made within ninety days of the decision of the subordinate Court which shall provide a copy of such decision within three days thereof, and the High Court shall dispose of such application within three months)"
10. The introduction and addition of the above two provisos, into section 115, C.P.C. By the legislature with quick succession, was with the view, to avoid delay in disposal of revision petitions filed in the High Court unaccompanied by all the required documents sufficient for the just decision of the case so that the requirements of calling for the record of the subordinate Court is dispensed with.
Under the second proviso, the period of limitation of 90 days provided for filing revision petition is immediately qualified by the words "which shall provide a copy of such decision within three days thereof". It has been judicially noticed that, subordinate Courts, ordinarily, in majority of cases do not comply with the mandatory requirements of the second proviso, thus failing to discharge their essential and mandatory statutory obligation by pushing the aggrieved party to the ordeals of old practice of applying to the copying agency for getting copies of the judgments and decrees of the subordinate Courts, the pleadings, the evidence of the parties and all those documents which are required to be placed before the High Court with the revision petition for just decision. Non- performance of such obligation by the subordinate Courts shall be viewed more seriously if the Court penalizes or taxes the aggrieved party, on the ground of limitation, provided in the second proviso. It is, one of the cardinal principle of interpretation of statute that construction on any provision of a statute shall be made in a manner to suppress the mischief and advance the cause of justice. The second principle, of equal considerable worth is that Courts shall not shut its door for an aggrieved party, on ground of technicalities, who has, a genuine grievance.
11. In the case of Imtiaz Ahmed v. Ghulam Ali (PLD 1963 SC 382) the Honourable Supreme Court has laid down a time tested golden principle "The proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy any system which by giving effect to the form and not to the substance defeats substantive right (and) is defective to that extent."
Again the Honourable Supreme Court, in the case of "Riasat Ali v. Muhammad Jaffar Khan two others" (1991 SCMR 496) mainly confronted with the question as to whether annexing of certified or uncertified copies of judgments and decrees, pleadings of the parties and necessary documents as well as evidence recorded by the trial Court, was the essential/mandatory burden of the party filing revision petition in the High Court, came to a conclusion that in genuine cases, where either the Court or the copying agency has a contribution in not providing the copies, the approach of the Court shall be liberal because it should not be forgotten that the scope of revisional powers, though hedged by conditions, is never the less vast and corresponds to a. Remedy to certiorari and the supervisory jurisdiction can be invoked by the Court suo motu and the Court can also make such order in the case as it thinks fit. The Court may extend the time to file the required documents or to call for the record itself where, it proposes to act suo motu.
12. It is paramount and bedrock principle of justice that no party to a lis shall be prejudiced by the act of the Court.
In the instant case undeniably, the learned appeal Court (D.J.) failed to provide the required copies of the documents to the petitioner to be filed with this petition within three days as is required by the second proviso, a corresponding duty imposed by law on the Court, putting the petitioner on the tight rope of limitation period of 90 days fixed for filing the revision petition. Even the copying agency has failed to comply with the mandatory rules of its manual by not intimating to the petitioner the date on which the copy was to be prepared and delivered as is evident from the additional documents brought on record with the permission of the Court. The petitioner being a lady, after returning to Pakistan from U.K. Was staying at Lahore at the relevant time thus there was a gap of communication between her and her counsel. Therefore, she could not be visited with a penalty as suggested in the preliminary objection by the learned counsel for the respondents- defendants because, there is, more than sufficient cause palpable on record for not filing the revision petition within the statutory period.
13. It is a consistent view that while interpreting any provision barring a remedy on the ground of technicality like limitation period, Court has to see first that denial of remedy to the aggrieved party shall not result into grave injustice. The case-law, cited at the bar for and against show that there, is, difference of opinion between the different High Courts and even between the Benches of one and the same High Court on the applicability of section 5 and 12 read with section 29 of the Limitation Act regarding condonation of delay and exclusion of time consumed in obtaining certified copies of the impugned orders etc. However, there is absolute consistency of view amongst the Honourable Courts including the apex Court particularly in the case of Allah Dino (supra) that for doing substantial justice and to rectify grave errors both of law and jurisdiction, committed by the subordinate Courts, High Court is neither bereft nor denuded of the suo motu revisional powers to be exercised in genuine cases, otherwise the corrective and supervisory jurisdiction of High Court primarily meant for this object, would be brought to naught.
14. In the instant case, both the learned Courts below have not only misconceived the correct factual position but have also failed to apply the correct law and principle of law on the subject.
The petitioner's plea that, she was, residing in U.K., right from the year 1960 and returned to Pakistan few months prior to the institution of her first suit, has not been questioned by the respondents- defendants in any manner rather from the defence taken by them, the same is well established. In fact they have conceded on this point to considerable extent.
15. Both the learned Courts below, without exercising the required degree of judicial care and caution and without applying the correct law, have jumped at the conclusion that, notices were issued at different occasions/dates to the petitioner on the given address of her nominee and the last one on the address of her brother, namely, Sultan Hameed Rizvi (P.W.2), and in this way have tagged her with the requisite knowledge. The conclusion so drawn is based on no legal evidence. In order to establish the service of the notices on the petitioner, the respondents have produced Muhammad Mussadaq, Senior Clerk, the only witness, besides confronting the petitioner with the notices allegedly issued and sent to her. The petitioner had squarely denied the receiving of any notice allegedly dispatched to her by the respondents. Some of the notices were tendered in evidence subject to objection. Neither the dispatch register of the department was produced or tendered in evidence nor the concerned dispatch clerk was produced to establish that indeed the questioned notices were drawn, entered in the dispatch register and were duly posted on the given address to the petitioner or her nominee. Similarly neither postal receipts nor A.D. Cards were produced to prove that the notices were duly served on the petitioner. Out of these questioned notices some have been returned by the postal authorities with remark/endorsements that the addressee was not found on the given address.
Section 27 of the General Clauses Act, lays down essential conditions for drawing legal presumption regarding proper service by post which includes putting proper address of the addressee, pre-paying the postal charges (receipts) and the posting of the notice by registered post. The evidence led by the respondents-defendants does not fulfil these mandatory conditions.
They have deliberately suppressed the relevant copies of the dispatch book/register, the postal receipts and A.D. Cards, if any received back. In the absence of such evidence, merely bringing on record copies of the notices allegedly issued to the petitioner or her nominee would not give rise to the presumption that the same were in fact dispatched to her or that she had received the same in due course, more so, when the petitioner and her brother both have categorically repudiated the service of such notices upon them. Reliance may be placed on view taken by the apex Court in case of `Piridno and another v. Khurshid Begum 1989 SCMR 880. Both the learned Courts, below while drawing presumption against the petitioner have disregarded the mandatory requirements of law and have reached at patently wrong conclusion.
16. Not because for the above reason alone, both the learned Courts below have failed to see and judge that, after payment of the auction/sale price and other charges/fee final allotment order about suit plot was issued in favour of the petitioner by the competent authority, thus she had become owner of the same under the law. The rest of the formalities, contained in the auction notice, were meant only to keep away undesirable purchaser indulging in speculation for price and profits therefrom which is not the case of the petitioner. Moreover, when admittedly the petitioner was abroad for a considerable period leaving behind no constituted and authorized agent except the last one, her brother, who had also retired from service and who has also denied the service of any notice on him, it was all the more essential for the respondents-defendants to have got published a notice in the press in the name of the petitioner about the proposed penal action in case of noncompliance,.
17. The provision of Article 24 of the Constitution in a strict commanding language squarely prohibits the depriving of any person of his property save, in accordance with law. The petitioner has been condemned unheard and her property (the suit plot) has been resumed and the allotment in her favour has been cancelled in disregard of the clear prohibition divesting her of her lawful ownership over the same by the respondents, without laying down any solid foundation for such a K drastic action. Thus the impugned action of the respondents-defendants is in violation of law and principle of natural justice, thus could not be sustained on any premises whatsoever.
Moreover, she has categorically stated that partial compliance was made by her with one of the condition of auction by constructing two rooms on the suit plot which is still in her possession and this claim of the petitioner has not been challenged in any manner by the respondents- defendants.
18. Ordinarily concurrent findings recorded by Courts below on question of fact are immuned from interference in revisional jurisdiction of the High Court but when such findings are based on no evidence or when it violate any principle of law while recording such findings or the same are based on misreading or non-reading of material evidence and are the result of mis and non- application of the correct law, it becomes the duty of the High Court to interfere with the same so that patent injustice caused to the aggrieved party is rectified.
On the point of limitation, the preliminary objection raised by the learned counsel for respondents, in view of the established facts on record, is not sustainable and is, therefore, disallowed. Even otherwise, as discussed above, this Court while exercising suo motu revisional powers is justified to interfere with the impugned judgments and decrees which are nullity in the eye of law and have caused serious miscarriage of justice.
19. For what has been discussed above, by accepting this revision petition both the impugned judgments and decrees of the learned Courts below dated 14-6-2000 and 13-12-2002 are hereby set aside and suit of the plaintiff is decreed with no order as to costs. However, she shall be liable to pay the additional charges on account of not fully utilizing the plot for such a long time including other fees/charges for which she is liable to pay under the rules and provisions of the Ordinance ibid. These are the detailed reasons for my short order of even date.