MUHAMMAD MUZAMMAL KHAN, J.-- This Constitutional petition seeks judgment/order dated 14- 102003 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 impleadment 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 on14- 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 provision 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 lqbal Lodhi and another (2000 CLC 1539). He further contends that Kabir Ahmad 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 in 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 298-2003, but instead he filed the revision petition on 16-92003. 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 September, 2003 and respondent No. 1 waited till 16-09-2003 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. Revisional Court took 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, but 'he 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 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 SCM R 286) and Islamic Republic of Pakistan through Secretary Ministry of Defence and others vs. Masood Enterprises (PLJ 2001 Lah. 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 21-52003 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 Section 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 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. . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.