MIAN SAQIB NISAR, J.--- The instant petition as also C.R. No. 977 of 2004, are being disposed of together, as both involve common questions of law and facts.
C.L.R.
2. Through the impugned orders dated 14.1.2004, the learned Civil Judge, has allowed the application of the respondents under section 144, CPC, and has restored the possession of the land to them, which earlier was taken over by the petitioners, in execution of the pre-emption decrees in their favour, which decrees were set aside by this Court in the revisional jurisdiction, with no success to the petitioners, before the Honourable Supreme Court. The appeal of the petitioners against the order dated 14.1.2004, has also failed on 17.3.2004.
3. Briefly stated the facts of the case are, that the predecessor of the petitioners (petitioners) brought a suit for the pre-emption against the predecessor-in-interest of the respondents (respondents) with regard to the land . Measuring 100 Kanals, 12 Marlas, situated in Mouza Klair Mehmand, Tehsil Depalpur, District Okara; the suit was allowed by the learned Civil Judge on 1.4.1977 and the ' appeal filed by the respondents failed on 26.4.1981. Therefore, in the execution of these decrees, the petitioners' side obtained the possession of the disputed property, somewhere in 1986 and the Mutation No. 151 (date is not legible, but it is January, 1986) was mutated in their favour.
4. The respondents, challenged the aforesaid, decisions through C.P. No. 303-D/1983, which was accepted by this Court on 5.5.1992, and the judgments and decrees of ' the Courts below were set aside. The petitioners filed, CPLAs Nos. 862-L/1992 and 863-L/1992, in which status quo with regard to the possession was maintained, but ultimately these petitions mere dismissed vide judgment of the Honourable Supreme Court dated 21.12.1993.
5. Respondents/defendants/vendees on 15.7.2003, moved an application before the learned executing Court, under the provisions of sections 144 and 151, CPC, seeking the restitution ,of the possession, which was taken over by the petitioners in the manner stated above; the application was contested by the petitioner, primarily on the ground of limitation. It is their case that to such applications residuary Article 181 of the Limitation Act. Shall apply and the period of three years' provided therein, shall commence from 5.5.1992, i.e. When the aforesaid revision were allowed and the decree of the Courts below was set aside, or at the best, when the petitioners' CPLA was dismissed by the Honourable Supreme Court on 21.12.1993. Anyhow, taking either of the above dates, to be the starting point of limitation, for filing the application for the restitution, the same moved on 15.7.2003, is hopelessly barred by time. According to the learned counsel for the petitioner, both the Courts below have not adverted to this plea at all. And the order impugned suffers from the error of jurisdiction and legal infirmity.
6. Ch. Imdad Ali Khan, learned counsel for the petitioners , has argued that as per the law, settled since pre-partition days, the provisions of Article 181 of the Limitation Act are held to be applicable to the applications u/s. 144, for the restitution of the possession obtained in the execution of the decree, which ultimately stands set aside. In support of his contention, he has relied upon Gujar Mal v. Narayan Singh (AIR 1931 Lahore 504), Telu v. Raja Ram and others (AIR 1938 Lah. 456), Punjab National Bank Ltd. v. Firm Nanhe Mal Tanki Das (AIR 1939 Lahore 73), Managing Committee Sunder Singh Malha Singh Rajput High School Indaura through Ch. Ram Singh v. Sunder Singh Malha Singh Sanian Dharam Rajput High Schook Trust, Indaura through Trustees, Ch. Chayan Singh and others (AIR 1944 Lahore 190 (Full Bench) Mela Ram and others v. Dharam Chand Amrit Lal (AIR 1958 Punjab 132). However, when confronted, the learned counsel has candidly conceded that the judgments of the Full Bench of Lahore High Court and Punjab came under consideration in the Indian Supreme Court and as per case reported as Mahijibhai v. Manibhai (AIR 1965 SC 1477), the view in the aforesaid two judgments has not been approved, yet it is argued that the decision of the Indian Supreme Court is founded upon the interpretation and the application of the Article 182 as against Article 181 of the Limitation Act. But according to the Law Reforms Ordinance, which came into force on 14.4.1972, the Article 182 of the Limitation Act, has been repealed in Pakistan, resultantly, the only applicable Article left in the field is residuary Article 181. It is further submitted that the respondents being conscious of the fact that their application u/s. 144, CPC is out of limitation, moved an application for the condonation of delay; though this application is not under any provision of law, but assuming it to be u/s. 5, the said provision is inapplicable to the execution proceedings. It is further stated that even on equitable consideration, the application of the respondents cannot be allowed, because it is settled law that equity helps the vigilant and not the indolence. Moreover, the rules of equity shall not be kept into the view, where it purports to defect the express provisions of law, particularly the Limitation Act. In this behalf, learned counsel has relied upon Nagendra Nath Dey and another v. Suresh Chnadra Dey and others (AIR 1932 Privy Council 165) and General Accident Fire & Life Assurance Corporation Ltd v. Janmahomed Abdul Rahim (AIR 1941 PC 6). It is further stated that even considering the law of limitation upon the touchstone of Islamic Law, it has been upheld by the Honourable Shariat Court in the case reported as Maqbool Ahmed Qureshi v.
The Government of Pakistan (PLD 1989 FSC 89). And the Shariat Appellate Bench of the Honourable Supreme Court in the case reported as S.M. Junaid v. President of Pakistan (PLD 1981 SC 12) has also expressed the same view. The learned counsel submits that according to the case Dasheshar Dass v. Diwan Chand and others (AIR 1933 Lahore 615), the period of limitation, cannot be extended on the equitable ground and the extension can only be allowed, if a case within the provisions of sections 4 to 24 of the Limitation Act, has been made out. By relying upon the case reported as Water & Power Development Authority v. Aurangzab (1988 SCMR 1354), it is argued by Ch. Lmdad All Khan, Advocate, that were the period of limitation has lapsed, the doors of the justice are closed and plea of injustice and hardship cannot be set out as a ground to seek th3 extension of the limitation. On the Court query about the inherent jurisdiction of the Court to order the restitution, learned counsel has relied upon the case reported as Messrs Conforce Ltd. v. Syed All Shah, etc. (PLD 1977 SC 599) and has contended that where the statute has itself provided remedy, the party is required to avail the same and the inherent powers of the Court cannot be restored to; according to the learned counsel, Section 151, shall only come into play, when no, other provisions or the remedy, is available to the aggrieved person, within the purview of the Civil Procedure Code.
7. Replying to the above, Ch. Riyasat Ali, learned counsel for the respondents, has formulated the following proposition:
1. The application filed by the respondents in fact is the application seeking the enforcement of the order of the Honourable Supreme Court dated 21.12.1993 and therefore, the provisions of Article 183 of the Limitation Act, shall apply rather than the Article 181.
2. That the suit was filed on 23.9.1971, and at that time, period of limitation covered by Article 183 was 12 years. However, the amendment in the Article reducing the period to six years, was brought by the amendment through Ordinance XII of 1972 on 14.4.1972, therefore, despite the amendment, the rights of the parties shall be governed on the basis of un-amended law prevalent at the time of commencement of the lis between the parties.
3. The Trial Court has passed the order dated 14.1.2004, impugned in these petitions, in the exercise of inherent jurisdiction; because the Court has the inherent jurisdiction to restore the position and bring back the party, where it stood before the judgment and decree, which is ultimately set aside.
Therefore, when the Court exercises its inherent jurisdiction, there is no question about the application of any bar of the limitation, to such exercise of powers.
4. It is settled law that the act of the Court, shall prejudice no one, therefore, where the Court has executed the decree, passed in appeal, which was ultimately set aside by this Court in its revisional jurisdiction, it is the duty of the Court, to restore the parties to their respective position, no the basis of the above principle.
5. Section 28 of the Limitation Act has been repealed, with the consequences, that on account of the lapse of period of time, no right on account of prescription is created or vests in favour of the petitioner.
6. It is settled that the status quo order was granted by the Honourable Supreme Court in CPLA filed by ' the petitioners and in the daily dairy of the concerned Patwari Vide rapt No. 134, the above fact was recorded on 24.11.1992. However, when the CPLA was dismissed, the petitioners were under a moral obligation on account of Article 2-A of the Constitution of Islamic Republic of Pakistan and also due to the enforcement of the Shariat Application Act, 1991, to inform the revenue authorities, about the dismissal and in this manner, the respondents were kept in the dark about the order of the Honourable Supreme Court.
7. That Abdul Rehman, predecessor of the respondents, was a party to the CPLA before the Honourable Supreme Court and he died on 2.9.1992, but before the decision of the Honourable Supreme Court, his legal heirs were not brought on the record, thus they could not know about the fate of the CPLA and thus it is on the above reason, that they remained unaware of the final decision.
8. On the plea that the amendment brought in Article 183, shall have no retrospective effect, reliance is placed on the cases reported as Mirza Akbar Ali v. National Bank of Pakistan (1985 SCMR 190) and National Bank of Pakistan v. Syed lshrat Ali (1984 CLC 1907).
And for the submission, that in the facts and circumstances of the case, provisions of Article 183 shall apply, the learned counsel has relied upon Umatuillah Begum v. Munawar Akhtar, Advocate (PLJ 1996 Lah. 782) equivalent to PLD 1996 Lahore 582, Bhola Nath Sen v. Jogendra Mahan Das and others (AIR 1939 Calcutta 601), Fatteh Narain Chowdhry v. Chundra Bati Chow Dhrain (ILR 20 Cal.
551) and Luchmun Persad Singh v. Kishuri Persha Singh (ILR 8 Cal 218).
9. I have heard learned counsel for the parties.
Before dilating upon the most serious proposition raised by the learned counsel for the parties, as to which Article of the Limitation Act, is applicable to an application under section 144, CPC. On the careful scanning of the case-law, cited before me, I feel it expedient to dispose of other pleas agitated in the matter:-- Firstly I am of the considered view that the law of limitation is a valid piece of legislation, and has to be strictly construed and enforced by the Courts of law, as it is.
Secondly Where the period of limitation for an action is provided by law, equitable considerations cannot be attracted, applied and adhered to, against the express provisions of the limitation, so as to override, defeat and . Nullify the law.
Thirdly It is the duty of the Courts u/s. 3 of the Limitation Act, to apply the relevant and the correct provisions of the Act, on the basis of the admitted facts of the case, irrespective, whether the concerned party has raised the plea or not.
Fourthly The above duty enjoined upon the Courts is not restricted to those exercising the original , rather section 3 of the Act, shall be attracted and applied at all the stages and the forums before which, the lis comes for the consideration; may it be in appeal, revision or even the writ jurisdiction.
Fifthly Though in a way, it is the inherent power of the Court, to restore and put back a party, to a position, where it stood, before the execution of the decree, which has been reversed or modified by the Higher forums. But when such power has been embodied in a specific and express provision of law, such as section 144, CPC, the inherent jurisdiction under section 151, CPC, cannot be restored to, And while exercising such inherent jurisdiction in any form, the provisions of the Limitation Act, cannot be ignored, lost sight, violated, or bypass.
SixthlyWhere the period of limitation for any remedy has lapsed, the doors of justice are closed and the plea of injustice and hardship cannot be set out, as a ground, to seek the extension of the limitation.
Seventhly The Courts can neither grant the extension or exclude the time from the specific period of the limitation, except where a case squarely falls within the purview, ambit and the mischief of sections 4 to 24 of the Limitation Act. Undoubtedly, this cannot be done, while exercising the inherent jurisdiction.
Although, the learned counsel for the respondents, has not dilated upon grounds Nos. 5, 6, 7, referred to in para. No. 7 of the petition, yet I feel it expedient to express my view, about the effect of the CPSLA, pending before the Supreme Court of Pakistan, the entry of the stay order in the Revenue Record and the factum of the death of Abdur Rehman, the predecessor-in-interest of the respondents and the. Non-impleadment of his legal heir in the Honourable Supreme Court. Because, this at the best, is the case set out by the respondents in their application under section 5 of the Limitation Act filed alongwith the main petition u/s. 144, CPC, which is available at pages 31 to 32 of the file.
10. I have read the contents of the application and hold that no case within the purview of section 18 of the Limitation Act, which provision at the most, can be pressed into service, has been made out. The reasons stated in the application, does not Constitute the fraud and it is not established on the basis of the contents, that by means of deception or the fraud, the respondents were kept away by the petitioners, from the knowledge of the result of the case in the Supreme Court. Rather, the respondents with ordinary diligence and exercise of vigilance, could themselves have found the fate of the matter at the right time, and thus avoided the consequences of the limitation. But it is due to their own lapse, that they missed the opportunity and thus no fraud, etc. Can be attributed to the petitioners.
11. Attending to the key and the basic question about the application of Articles 181 or 183. There is catena of judgments, some of which, are mentioned in the preceding para, which are mostly of the pre-partition days, enunciating the rule that the provisions of Article 181, shall apply to the application u/s. 144, CPC. However, as there also is the contra view, of some High Courts of the Sub- Continent, resultantly the issue came under consideration before the Indian Supreme Court, in the case reported as AIR 1965 SC 1477, wherein it was held as below:- "The historical background of Section 144 of the Code of Civil Procedure, the acceptance of the legal position that an application for restitution is one for execution of a decree by a number of High Courts, the inevitable adoption of the said legal position by innumerable successful appellants within the jurisdiction of the said High Courts, the possible deleterious impact of a contrary view on such appellants, while there will be no such effect on similar appellants within the jurisdiction of the High Courts, which have taken a contrary view, also persuade us to accept the construction that the application for restitution is one for execution of a decree. We, therefore, hold on a fair construction of the provisions of section 144 of the Code of Civil Procedure that an application for restitution is an application for execution of a decree."
On account of the above, in the Jndian jurisdiction, the issue stands settled and thus the provision of Article 182 of the' Limitation Act, are declared to be applicable to such petitions.
12. However, I have not come across any judgment, from our jurisdiction either by the Honourable Supreme Court, or the larger Bench of this Court, whereby the law declared in the judgment of the full Bench of this Court, reported as Managing Committee Sunder Singh Malha Singh Rajput High School Indaura through Ch. Ram Singh v. Sunder Singh Malha Singh Sanain Dharam Rajput High School Trust, Indaura through Trustees Ch. Chayan Singh and others (AIR 1944 Lahore 190), can be said to have changed. But the afore-mentioned two judgments came under consideration of a single Bench of the Sindh High Court in the case reported as Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi (PLJ 1979 Karachi 424). And besides these two dictums, while thoroughly examining the case-law on the subject uptill that time , it was held that the application u/s: 144, CPC, is at par with an application for execution of a decree, and thus shall not be governed by the Article 181 of the Limitation Act. In the case, however, as the decree had been passed by the Sindh High Court in its original jurisdiction, which was upheld in LPA Bench of the same Court, but was modified on appeal by the Honourable Supreme Court, the provisions of Article 183, were rightly attracted and the application u/s. 144, CPC, being within six years' was declared to be within time.
13. The question, about the application of Article 181 or otherwise, to an application u/s. 144, CPC also come under consideration before a Single Bench of this Court, in the case reported as Umatullah Begum v. Munawar Akhtar, Advocate (PLJ 1996 Lahore 782) and it was held as under:-- "The basic objective underlying section 144, CPC is to be redress the wrong and reinstate the wrong party to the position to which it is entitled under varied decree of the Court. The execution of decree is the fruit of litigation between parties and so it can be safely said that application under section 144, CPC, is with regard to enforcement of decree and is such one of the steps in the execution of the decree. I, therefore. Have no hesitation to hold that application filed by Mst. Amanat Begum was a step in execution and therefore, it was not governed by Article 181 of Limitation Act. The next question surviving for consideration is that whether Article 182 or 183 of Limitation Act, applies to such applications. This question is free from difficulty. Article 182 of the Act was omitted from the Act by Law Reforms Ordinance, 1972 and so is no more in the statute book. I know come to Art. 183 of the Act. It plainly covers the order of Supreme Curt, which modifies or affirms the decree of High Court, whether passed in original or appellate jurisdiction and its enforcement is sought. Applying this principle to the facts and circumstances of the case, it is quite clear that the first Court had rendered the decision on 1.3.1978; that this decision was varied by Appellate Court on 6.8.1988; that decision was affirmed by the Supreme Court on 20.5.1991. In view of above, it is quite clear that application for restitution was lodged within one year and so it was within time under Article 183 of the Limitation Act, . Which prescribes a period of 6 years for such applications."
14. On the analysis of the above case-law, it would have been possible for this Court to agree with the view expressed by the Indian Supreme Court, but for the reason that this, has become redundant. Because Article 182, by virtue of the Law Reforms Ordinance, 1972, has been replealed and thus any discussion in this behalf, shall be of academic interest alone, Therefore, the only provision, which . Remains in field, is the residuary Article 181 and therefore the application u/s. 144, CPC, should be governed by the said Article.
15. However, it has been argued by Ch. Riyasat Ali, that the present suit was filed on 23.9.1971, the judgment of this Court, reversing the judgment and decree of the two Courts below was passed on 5.5.1992; the CPLA Nos. 862/L/92 and 863/L/1992. Was dismissed by the Honourable Supreme Court on 21.12.1993 therefore, the order of this Court. Due to its confirmation has merged into the judgment of the Honourable Supreme Court, and as such Article 183, shall be applicable, which is meant for the enforcement of the judgment and decree or the order of the Supreme Court. It is also submitted that though, the period of limitation of the Article, as amended by the Law Reforms Ordinance, 1972, is now six years, but prior thereto, it was twelve years. And, as the lis in this case, commenced before the amendment, thus the amendment would have no effect, upon the rights of the petitioners, which shall be governed by the original Article 183, having 12 years' limitation. The application brought by the respondent on 15.7.2003, which is within the said period of the judgment of the Supreme Court dated 21.12.1993, shall be well within time.
The learned counsel in support of his contentions, has relied upon the following judgments:-- Nazir of the High Court of Sindh & Baluchistan, Karachi v. M/s. Haji Muhammad Ishaq-Haji Dost Muhammad (1981 CLC 372), National Bank of Pakistan v. M/s. Hyderabad Tandoo Fazul Bus Service (1980 CLC 1146), Sh. Muhammad Ali v. M/s. China Silk House, etc. (1985 CLC 679) and Adnan Afzal v.
Capt. Sher Afzal (PLD 1969 SC 87).
16. I have considered the plea, but it has a serious and a fundamental flaw, which is elucidated as follows:-- The Law Reforms Ordinance has not only reduced the period of limitation originally provided by Article 183, but has also repealed Article 182. Now, if the unamended law is, to be applied to the case, because of the principles, that the vested rights of the parties cannot be destroyed, by the subsequent change of law and such change shall have no retrospective effect the provisions of section 6 of the, General Clauses Act and that the right of the litigating parties and the remedies available to them should be determined on the basis of the law existing at the time of the commencement of the lis. Then it is Article 182, rather 183, which should be attracted. Because throughout it has been the judicial concern of different High Courts about the application of Article 181, as against 182. It has never been held that Article 183, can also be attracted instead of Article
182. Obliviously, for the reason that Article 183 has a specific application, restricted to those decisions. Etc., which are passed by the High Court, in the exercise of its ordinary original civil jurisdiction, which is not the situation in this case, or for the enforcement of the order of the Supreme Court. Ch. Riyasat Ali, has emphasized on this second part. But in my view, it pertains to such orders of the Supreme Court, through which, the decree or the order impugned before the Supreme Court, are either reversed or modified, or the Supreme Court, has passed the order in the exercise of its original jurisdiction, such as under Article 184 of the Constitution of the Islamic Republic of Pakistan.
17. In my view, merely for the reason that the leave application has been filed against the decree of this Court, which has been disallowed by the Supreme Court, therefore, the arguments that such decree has merged into the decree of the Supreme Court, so as to attract Article 183, cannot be accepted, because according to the law laid down in the case reported as Joydeb Agarwala v.
Baitulmal Karkhana Ltd. (PLD 1965 SC 37), it has been held that "The mere fact of the decree having become immune to further appeal by the dismissal of the appeal in the High Court and the lack of further appeal does not render the decree of any other Court except that the first instance. No modification was made in the decree by the High Court and the arguments of merger is rendered of no weight by the consideration that in fact the High Court rejected the appeal."
In the light o.f above, I am of the considered view that the order of the Honourable Supreme Court, through which, the leave application of the petitioners, was disallowed, cannot be considered to be an order within the purview of Article 183, so as to attract the said provision. Thus on account of the above reasons, I find that the orders impugned in these petitions, suffer from serious lack of exercise of proper jurisdiction and have been passed with material irregularity, therefore, these are set aside, with the result that the application of the respondents u/s. 144 stands dismissed.
Accordingly, these petitions are allowed.
Civil Revision .