' MUHAMMAD MUZAMMAL KHAN, J.---This civil revision calls in question a remand order passed by the learned Additional District Judge Jhang on a confessional statement of respondent No,1 remitting case to the trial Court for its fresh decision in accordance with law.
2. A short factual background of the case is that the petitioner filed a suit for possession on the basis of title asserting allotment in favour of their predecessor-in-interest namely Chaudhary Abdul Hameed etc. Which according to them, was made in the year 1962. The petitioners asserted in their plaint that the land included in this allotment, was further allotted to the predecessor of the respondents in the year, 1973, without cancellation of land in favour of Ch Abdul Hameed etc. Above referred. This suit was ex parte decree on 2-9-1986.
3. No application under Order XIX rule 13, C.P.C. Was filed against the ex parte decree dated 2-9- 1986 and instead, appeal was filed by respondent No,1 before the Additional District Judge, which was dismissed on 25-2-1987. After dismissal of appeal an application under section 12(2) C.P.C.
Was filed by the respondents Nos.2 to 4 before the learned Senior Civil Judge Jhang on 8-5-1988.
4. The petitioner appeared in the application under section 12(2) and filed an application under Order VII rule 10, C.P.C. praying return of respondent's application on the ground that final decree was passed by the Additional District B Judge (appellate Court), hence the , application under section 12(2) if any, should have been filed, there. This application of the petitioner was accepted on 15-12-1992 and the Civil Judge ordered return of the application under section 12(2) C.P.C.
5. The respondents Nos.2 to 4 received the returned application and filed it, before the Additional District Judge, who dismissed it on 12-11-1995 due to non-deposit of necessary process fee by the applicants, therein (under Order IX rule 2, C.P.C.), it appears that respondents Nos.2 to 4 on failure to supply correct addresses of the petitioners successfully obtained the order of substituted service through citation/publication of notice in the newspaper daily "Jurrat" Lahore, on the basis of which the petitioners were proceeded against ex parte on 9-1-1996.
6. The counsel for respondent No,l on 22-4-1996 made # a. Confessional statement, on the basis of which an application of the respondents Nos.2 to 4 filed under section 12(2) C.P.C. Stood revived.
Now on revival of S.12(2) application fresh notices to the respondents (petitioners before this Court) were ordered to be issued and here again the applicant could not give correct addresses and the learned Judge who was seized of the matter ordered substituted service through newspaper "Jurrat" Lahore, again and after its publication the petitioners were proceeded against ex parte. The respondent No,l is the lady, who had appealed against the ex parte decree but her appeal was dismissed on 25-2-1987, once again conceded S. 12(2) application of respondents Nos.2 to 4 by making a confessional statement on 3-12-1996 with the result that appeal of the respondent No,l stood revived. Now the learned Additional District Judge ordered notices on appeal to the respondents and for the third time service of the petitioners was ordered to be effected through substituted means of publication of notice in "Jurrat" Lahore. It is claimed by the petitioners that though resort to service through publication was not warranted, yet, for all the three times in "Jurrat" which has no circulation and the newspaper was not sent through post. Smell some thing bad. On the basis of such illegal and unwarranted means of service, the petitioners were proceeded against ex parte in appeal on 5-5-1997. On revival of appeal of the respondent No,l, respondents Nos.2 to 4 whose application under section 12(2) was being conceded by respondent No,l, this time conceded her appeal and on this appeal, the remand order, impugned in this revision petition was passed.
7. The learned counsel for the petitioners submits that it is clear from the record that no personal service of the petitioners was ever effected, throughout the litigation and thus all activities of the respondents in form of appeal, application under section 12(2) and illegally substituted service were exerted at their back and the petitioners, at no stage, could know the order impugned and thus delay in filing in this revision , petition deserves to be condoned. He further submits that his application under section 5 of the Limitation Act 1908, which is supported by an affidavit and their being no counteraffidavit, delay of only 7 days in filing this revision petition may be condoned. He further submits that section 29(2) of the Limitation Act does not exclude application of section 5 of the Limitation Act for condonation of delay, occasioned in filing the civil revision, because by virtue of under section 29 of the Limitation Act, its application can only be excluded if limitation provided by the Act, is different than the one provided by a special statute i.e, section 115 of C.P.C. According to his submissions, since limitation for filing an appeal before this Court under Article 151 of the Limitation Act and the one provided section 115 C.P.C. Are the same thus section 5 of the Limitation Act can be used for condonation of delay. He further submitted that if it be assumed that section 5 of the Limitation Act does not apply for condonation of delay, even in that case in exceptional circumstances, delay can be condoned under section 151 of the C.P.C. In support of his submissions he referred to Muhammad Sadiq v. Mst. Bashiran and 9 others (PLD 2000 SC 820). The learned counsel for the petitioners further argues that in a similar case the Honourable Supreme 'Court of Pakistan condoning delay, remanded the case for decision on merits. He in this behalf referred to the case of Muhammad Mian v. Syed Shamim Ullah and 2 others 1995 SCM R 69. He relying on the case of Government of N.-W.F.P. Through Chief Secretary and 3 others v. Abdul Malik reported as (1994 SCM R 833), contended, that this Court while exercising its inherent powers can condone bona fide delay which occasioned due to circumstances beyond the control of the party or it has no contribution, for such delay.
8. The learned counsel appearing on behalf of the respondent controverted the submissions of the petitioners and maintained that the limitation for filing of civil revision has been provided by section 115, C.P.C. Which is special statute, condonation of which cannot be done under section 5 of Limitation Act 1908, he besides relying on the alighted judgment in the case of Allah Dino and another v. Muhammad Shah and others reported as (2001 SCM R 286) and also referred to the judgments in the cases of Government of N.-W.F.P. Through Chief Secretary and 3 others v. Abdul Malik (1994 SCM R 833). Haji Rehmdil v. The Province of Balochistan and another (1999 SCM R 1060) and Haji Muhammad v. Jehan Khan and 3 others (1995 SCM R 197).
9. I have anxiously considered the arguments of the learned counsel for the parties and have examined the record. The petitioners' main stay is that they were not personally served, at any stage of the proceedings and their substituted service through citation in the newspaper of a little circulation was not called for. I am not inclined to accept this contention of the petitioners because I find that their service was thrice got effected by the Additional District Judge on different stages of the litigation by publication of notice in the daily newspaper, I find that the petitioners had, at one stage, filed an application under Order VII, Rule 10, C.P.C. Seeking return of application filed by respondents Nos.2 to 4 under section 12(2), C.P.C. And on their application the learned Senior Civil Judge ordered return of case on 15-12-1992 and thus they were aware of the pendency of the proceedings and if they did not follow those proceedings, it was their own choice. It is also clear from the averments made in both the revision petitions and application under section 5 of the Limitation Act that they were aware of the proceedings because they have not specifically mentioned any date, on which their counsel before the trial Court informed them, of the remand order, impugned by them in this revision petition. Be that as it may the matter of availability of section 5 of the Limitation Act, 1908 for condoning the delay occasioned in filing a civil revision, was taken up by the Honourable Supreme Court of Pakistan in the case of Allah Dino and another v.
Muhammad Shah and others reported in 2001 SCM R 286 and while determining this controversy all the relevant provisions of E Limitation Act and C.P.C. Were very kindly thrashed and it was mandated through this alight judgment that section 5 of the Act ibid cannot be used for condonation of the delay as its application has been excluded by section 29(2) of the Act of 1908.
10. Adverting to the other submission of the learned counsel for the petitioners that in absence of availability of section 5 of the Limitation Act delay can be condoned under section 151 C.P.C. in exceptional case. Case in hand is neither a case with exceptional circumstances because I have already concluded that proceedings pending before the Court below were in the knowledge of the petitioners and they were thrice served through citation in daily newspaper nor circumstances of this case require interference by condonation of delay, for the obvious reason that the petitioners had deliberately avoided their service, before the Court below, I respectfully following the judgment in the case of Allah Dino and another, Supra, find that I am not equipped with the powers under section 5 of the Limitation Act 1908 to condone delay in filing this revision petition, consequently I dismiss their application under section 5 of the Limitation Act filed by the petitioner by holding their revision petition as barred by limitation.
11. I have also examined the merits of the case just to see that any injustice may not occur due to technicalities of law. Though this case has its own exchequer historical background yet the case has simply been remanded to the trial Court where, the petitioners can avail their options of contesting the suit, by producing their evidence of their choice and thus there appears to have occasioned no prejudice to the petitioners, by the order impugned in this revision petition.
Entitlement of the parties to respective land, subject of this litigation still requires determination and it is better that in post remand proceedings, the trial Judge will decide it, on the basis of the evidence, as to who out of the parties, is rightful owner. In this manner remand order goes in favour of both the parties, which calls for. No interference. This revision petition has no substance in it, the remand order passed by the appellate Court below has been passed in a lawful exercise of jurisdiction which is not proved to be arbitrarily or fanciful, hence this petition fails and is dismissed with no order as to costs.