' MIAN SHAHID IQBAL, J.--- Precisely, facts of the case are that petitioner filed a suit for declaration and permanent injunction on 3-1-2002, written statement was filed by defendant No,1 on 4-6-2002 and by defendants Nos. 2 to 6 on 5-3-2002. Out of divergent pleadings issues were framed, the learned trial Court dismissed the suit of petitioner for non-production of evidence vide its order dated 8-4-2006.
2. The said order was challenged by filing appeal on 25-4-2006, petitioner failed to convince the learned lower appellate Court who vide judgment and decree dated 5-7-2006 dismissed the appeal. Being aggrieved by order of learned lower appellate Court, petitioner filed this revision petition.
3. Learned counsel for the petitioner submits that after framing of issues, case was fixed for evidence of the petitioner on 22-4-2003. Since there was no evidence, same was adjourned for 17- 6-2003. On the said date two witnesses were present but their statements were not recorded, case was adjourned for 29-7-2003.
' On 29-7-2003 due to administrative order case was transferred, as such case file sent to the said Court for - 31-7-2003, amended plaint was filed on 10-12-2003. After filing of the amended written statement case was once again adjourned for 18-7-2005 for evidence of petitioner/ plaintiff, on that date evidence of petitioner was present but their statements were not recorded due to lack of time. On 14-12-2005 evidence of petitioner was not present, as such case was adjourned for 25-1- 2006 when evidence was present but on request of defendant counsel case was adjourned for 16- 3-2006. The said order reflects that case was transferred for 16-3-2006, though evidence was not present as such the case was adjourned for 8-4-2006, on the said date evidence of the petitioner was closed under Order XVII, rule 3, C.P.C., as such suit dismissed.
4. Learned counsel for the petitioner submits that from date of first order by the learned trial Court number of times evidence was produced, but due to one reason or the other same could not be recorded, even on 25-1-2006 evidence of petitioner was present, but adjourned on the request of defendant. Further submits that on the last date i. e.16-3-2006 as the order shows that case was transferred and was further submits that impugned order was not sustainable as evidence was present on 25-1-2006, but on 16-3-2006 since the case was adjourned, but requirements for application of Order XVII, rule 3, C.P.C., were not available on the fateful day i.e, 8-4-2006. Next submits that on the preceding date order passed was a routine order, there was no specific direction for brining of evidence, as such penal provisions of Order XVII, rule 3 C.P.C. Were not available, moreover interim order fully demonstrate that the same was written by reader of the said Court. In the given circumstances, action under Order XVII, rule 3, C.P.C. Was not warranted.
5. Further submits that he has annexed application for condonation of delay wherein sufficient reasons and explanations have been given which were beyond the control of petitioner lady, as she being suffering from heart ailment could not move frequently, was dependant on her counsel whom she had engaged and certified copies were handed over for filing Civil Revision well in time.
6. On inquiry petitioner came to know that her case was pending due to objection, therefore, she had to change the counsel so as to pursue the matter when she came to know that the civil revision was filed after the expiry of period of limitation and is barred by four (4) days. Then submits that delay in filing of revision petition could not be attributed to petitioner herself as copies were obtained in time and were delivered to the counsel due to whose mistake petition got delayed.
9. On the other hand, learned counsel for the respondents at the very outset has drawn attention to the order dated 24-10-2007 wherein it was specifically mentioned that counsel would first argue the point of limitation. Further submits that as the revision petition is barred by time, as such same cannot be entertained and is liable to be dismissed. He relies upon Province of Punjab and others v.
Muhammad Anwar (1998 CLC 1212) that as specific period of 90 days has been mentioned for filing of revision petition, as such the same has to be applied strictly. Moreover section 5 of the Limitation Act does not apply and application for condonation of delay is not maintainable on this ground also.
10. I have heard the learned counsel for the parties and have gone through the record. Bare perusal of the interim orders which have been placed on record clearly demonstrate that for a number of times the evidence of the petitioner was present but due to pre-occupation of the Court or due to request of the respondents' side the case was adjourned. As such petitioner should not be burdened for adjournments. On 16-3-2006 the instant case was transferred due to an administrative order, on the said date it was adjourned for 8-4-2006, which was the fateful day. But on 16-3-2006 when the case was adjourned the defendant counsel did not oppose the request for adjournment, rather it was adjourned inl routine as the case file has been transferred to the Court.
11. For these reasons I hold that the order passed by the learned trial Court thereby dismissing the suit for non-production of evidence is erroneous, bad in law, the same cannot hold the field in view of number of judgments passed by the superior Courts which clearly explains that the preceding date on which an adjournment has been granted to the party for evidence must be a conscious adjournment and the order should also explain the same thereby directing the party for production of evidence and in absence of that the penal results of non-production, thus not warranted.
12. The second question involved in this petition is point of limitation. Learned counsel for respondents has vehemently argued that as Limitation Act does not apply to a Civil Revision, hence the application for condonation of delay on the score is liable to be rejected with the result that the Civil Revision would stand dismissed.
13. I am afraid, in view of the latest pronouncement of judgment in unreported judgment of Hon'ble Supreme Court of Pakistan dated 24-11-2009 passed in Civil Appeal No,2204 of 2006, the following observation has been made:--
(4) "It is not a healthy approach to brush aside the cases on the ground of limitation which, with reference to section 115, CPC, is not absolute either. A perusal of the section would indicate that a High Court may at any time call for the record of any case from a subordinate Court in order to determine as to whether the subordinate Court has exercised a jurisdiction not vested it or has failed to exercise jurisdiction so vested or has acted illegally or with material irregularity. It is a matter of common sense and simple logic that if such power is vested in a High Court, it should not be restricted by any period of limitation. So it does when section 115, C.P.C. Was originally enacted.
The controversy seems to have cropped up because of the amendment in the year 1992 when, through second proviso, a period of 90 days was fixed for filing a Revision petition. A plain perusal of first and second proviso would indicate that a limitation of 90 days is relevant only when some Revision petition is filed by some person or party to the proceedings. Such impediment is non- existent when Court itself exercises the power of Revision under subsection (1) of section 115, C.P.C.
(5) As the job of a Court is to do ultimate justice, it can look into the matter itself despite the fact that some application filed by a party might be barred by time. Any such application can be considered by the Court as a mere information. What we intend to bring home is that if merits of the case demand that the challenged order be set aside, a High Court should not avoid hearing under section 115(1), C.P.C. For which no limitation is provided, merely because the application is filed by limitation. This Court in Riaz Hussain's case (2003 SCM R 181) has observed in principle that "mere technicalities unless offering any surmontable hurdle should not be allowed to defeat the ends of justice and the logic of words should yield to the logic of realities.
(6) Law of limitation, we believe, is a substantive law of the land and hence should not in every case be considered a mere technicality, yet, we firmly believe that under section-115, CPC, having been split into two parts, the stringent implication of law of limitation can easily be avoided by the Court taking suo motu action under subsection (1) of section 151, CPC in cases where merit so demands.
(7) Consequently, we made a two-fold observation. Firstly, that section 12(2) of the Limitation Act was not applicable to Revisions when both the Limitation Act and Civil Procedure Code were enacted. So no limitation for Revision was provided at that time. Now that we have amended section 115, C.P.C. By providing a limitation, therefore, the time, as mentioned in section 12(2) of the Limitation Act, should be excluded while computing the period in question. Secondly, that despite such limitation, restricted for the party or person, the High Court could have assumed jurisdiction provided the merits of the case so demanded. Resultantly, the appeal is accepted, the impugned judgment, dated 29-11-2002 is set aside and the case is remanded back to the learned High Court deciding Civil Revision No,1722-2002 on merits."
14. In the present case the Hon'ble Supreme Court of Pakistan has clearly spelled out the observation thereby accepting the civil appeal and remanding the case to the High Court holding that the application under section 12 (2) of the Limitation Act is applicable and the Court instead of dismissing the civil revision on the point of limitation should have finally heard the matter and decide the same on merits.
15. In this view of the matter, for the above reasons I would hold firstly that the order dated 8-4- 2006 being erroneous cannot hold the field being patently illegal and void ab initio. Moreover, it has also been held in Civil Appeal No,2204/2006 that section 5 of Limitation Act would apply to the Civil Revision.
16. Thus this Civil Revision is accepted with the result that both the orders of the Courts below are set aside and the suit is restored to its original number. Parties are directed to appear before the learned trial Court for further proceedings in the matter. As it is an old matter, the learned trial Court is further directed to conclude this case within six months from the date this order is conveyed to it after providing the parties proper hearing.