Nasir Ali, applicant, through this application has sought review of order dated 21-12-2010, passed by learned Single Judge of this Court whereby the Civil Revision (No.3798 of 2010) filed by the applicant- petitioner against judgment and decree dated 1-7- 2010 passed by the learned Additional District Judge Chiniot as well as that of learned Civil Judge passed on 11-3-2009, was dismissed on the point of limitation.
2. Shorn of unnecessary details, on 18-10-2010, the applicant filed the afore-mentioned Civil Revision against the judgments and decree dated 1-7-2010 passed by the learned Additional District Judge Chiniot and that of learned Civil Judge Chiniot passed on 11-3-2009. Subsequently, the office raised certain objections, including filing of separate application for condonation of delay in filing the Civil Revision, and the applicant was required to remove the same within three days. All the objections were removed by the applicant except that of regarding filing of separate application for condonation of delay. In this regard, the learned counsel for the applicant explained that the Civil Revision was within time, however, when the office fixed the case as Objection Case, on 26-10-2010, the learned counsel for the applicant undertook to file an application for condonation of delay as abundant caution. Accordingly, an application for condonation of delay was filed on 10-11-2010. Thereafter, learned counsel for the applicant fell seriously ill and as a result, request for adjournment was made on his behalf on 16-11-2010 whereas on the next date i,e, 29-11-2010 learned counsel for the applicant sent a written request for adjournment. Again, on 20-12-2010, a request for adjournment was made on behalf of learned counsel for the applicant, though the said request was allowed but the case was fixed on the very next day i,e, 21-12-2010. As the applicants counsel was not in a position to appear before the court due to his severe illness, nobody entered appearance on 21-12-2010 when the Civil Revision was dismissed on the point of limitation; hence this application.
3. Learned counsel for the applicant contends that despite the fact that it was in the knowledge of the court that applicant's counsel was seriously ill, the Civil Revision was dismissed on the point of limitation; that the Civil Revision was well within time, however, to show his bona fide the applicant filed an application for condonation of delay as abundant caution; that the objections were put by the office on 18-10-2010 and immediately, an application was submitted and the case was fixed before the court on 26-10-2010 and in view of the order passed on the said date, the applicant filed an application for condonation of delay on 10-11-2010; ?That the learned court has dismissed the Civil Revision without taking into consideration the law that only valid objections can be considered whereas the frivolous objections without touching the question of limitation are to be ignored; that the objections were never conveyed to the applicant or his counsel rather having a vigilant eye, he himself approached the office and removed the objections raised on the said petition and that the law requires decisions on merits instead of hyper-technicalities.
4. We have heard the learned counsel for the applicant and have also gone through the documents appended with this application as well as the Civil Revision. A perusal of the stamp affixed by the Copying Agency of District Courts Chiniot on the judgment and decree dated 1-7-2010, passed by learned Additional District Judge Chiniot, makes it clear that the judgment was announced on 1-7-2010 and the application for supply of certified copy thereof was filed on 3-7-2010 which was prepared on 21- 7-2010 and was subsequently delivered to the applicant on 22-7-2010. As per law, the date of pronouncement of judgment and decree is to be excluded from the period of limitation in addition thereto the days consumed by the copying agency in preparation of the certified copy of the judgment/order. The following table would be helpful to commute the period of limitation in the instant matter: - 1.Date of Decision 1-7-2010 2.Date of application for supply of certified copy 3-7-2010 3.Time consumed in preparation of certified copy 19 days (w.e.f. 3-7-2010 to 21-7-2010 (excluding the delivery-date of certified copy)
4.Last date for filing of revision (without grant of allowance days)29 September 2010 (30 days of July + 31 days of August and 29 days of September = 90 days)
5.Total allowance days to be excluded from the limitation19 days (Sr.No.3)
6.Last date for filing of revision petition after adding allowance days.18October 2010 (19 days after 29-9-2010 which was otherwise the last date of limitation for filing the revision petition.)
From the above table one thing is clear that the main revision was filed by the applicant well within time. Now the question to be considered by us is that whether any proceedings filed within limitation can be later on dismissed on the point of limitation for the reason that the concerned party failed to re-file the case after removing the objections raised by the office within the stipulated time. In this regard, a reference can be made to an illuminated judgment passed by the Hon'ble Supreme Court of Pakistan in the case reported as "Mst. Sabiran Bi v. Ahmad Khan and another" (2000 SCM R 847). In the said judgment, their lordships have held that once a suit, appeal or revision has been presented before the authorized officer of the court within the prescribed period of limitation, it cannot be treated barred by time for the reason that office has noted defects in the proceedings which have not been removed by the concerned party or his advocate and in such like situation the Presiding Officer of the Court at the best can consider the maintainability of proceedings in view of provisions of Order VII, rule 11, C.P.C. Or identical provisions available in the Code of Civil Procedure or the law under which the proceedings were instituted. It was further held that parties/advocates are also not absolved from their duty to remove the office objections within the stipulated period prescribed by the concerned authorized officer subject to the condition that specific notice has been served upon the party or advocate to do the needful. Even if after notice the defect is not removed the case shall be listed for non-prosecution before the Presiding Officer who may in his discretion allow time to comply with objections of office. In the instant case, the applicant not only removed the office objections but also filed an application for condonation of delay under abundant caution which shows his vigilance to pursue the matter.
5. If one considers the order, impugned in this application, on the touchstone of the afore- referred judgment of the Hon'ble Supreme Court of Pakistan, we are of the view that the petition could not have been dismissed on the point of limitation for the reason that the same was filed well within time and the same could not be dismissed on later stage just for the reason that section 5 of the Limitation Act was not applicable. The Superior Courts are vested with the inherent powers to condone the delay in cases which are not otherwise covered by section 5 of the Limitation Act 1908. It is important to note over here that while passing the impugned order, the learned Judge omitted to note that the applicant did not file application for condonation of delay under section 5 of the Limitation Act 1908 rather in view of the fact that provisions of said section were not applicable in revision petition, he filed an application under section 151, C.P.C.
6. A perusal of the impugned order dated 21-12-2010, passed on the afore-mentioned revision petition, makes it abundantly clear that the logic weighed with the learned Judge was that the period of three days prescribed by the office for removal of objections was mandatory. In a case reported as "Province of Punjab through District Collector Lodhran and 6 others v.
Muhammad Khalid Khan" (2005 CLC 1083) a Division Bench of this Court held that if otherwise the appeal was within time, the same could not be termed as barred by limitation due to the fact that the same was not filed within the stipulated period set for removal of the office objections. Their lordships further held that non-issuance of notices to the appellant by office for removal of objections is material. In the instant case, the office has not taken the plea that the objections were communicated to the applicant or his counsel. If the case is kept in the office after putting some objections without notice to the party'or his counsel, the period prescribed in such circumstances would be immaterial as the same could only be reckoned from the date of knowledge of the party or his counsel.
7. Considering this case from another angle, there is no cavil to the preposition that as per section 29(2) of the Limitation Act, 1908 provisions, of section 5 of the said Act are not applicable in petitions filed under section 115, C.P.C. But at the same time under the principle of ubi jus ibi remedium, this aspect has not been left unattended rather this court can condone delay in filing of a civil revision by exercising its inherent jurisdiction under section 151. C.P.C. If the petitioner establishes that the delay was not intentional rather result of unavoidable circumstances beyond his control. In a case reported as "Muhammad Bashir and another v. Province of Punjab" (2003 SCM R 83) while upholding the decision passed by this Court whereby while condoning delay of 26 years in filing the revision petition, remanded the case to the trial court for decision afresh, the Hon'ble Supreme Court of Pakistan has held that the object of Superior Courts while exercising its discretionary jurisdiction is to foster the ends of justice and preserve the rights of parties. It has further been held in the said judgment that technicalities of law are always avoided and discouraged in order to do complete justice and to ensure that justice is not only done but also seem to have been done. Rules of procedure are enacted for fostering the ends of justice and preserving the rights rather than to stifle the dispensation of justice and unless they are insurmountable, ends of justice always outweigh the manner of practice an procedure. If we weigh the impugned order on the golden principles laid down in the judgment referred in the preceding sentence, one thing is clear that though the provisions of section 5 of the Limitation Act were not applicable in a civil revision, however, the delay, if any, could competently be condoned by this Court while exercising inherent powers under section 151, C.P.C. In the instant case, while filing the civil revision there was no delay. Further, after having coming to know about the objections raised by the office, the applicant without wasting any time immediately approached for removal thereof and to show his bona fide he also filed an application under section 151, C.P.C. For condonation of delay. In such a scenario, he cannot be termed as an indolent rather he pursued the matter with due diligence. The ailment of his learned counsel was beyond the control of the petitioner and by no stretch of imagination he can be held responsible for that.th
8. As a necessary corollary to the discussion made in the foregoing paragraphs, we have no hesitation in my mind to hold that the law does not intend to make the proceedings barred by time due to noncompliance, by the defaulting party, in time, such petty objections, being raised by the office of this Court rather the spirit of law, in our humble view is that the matters become barred by time only if the nature of the objections is such, that the same can only be removed by the defaulting party itself. In the present case no contumacy is involved and there is no negligence either on the part of the appellant or his counsel because after coming to know the said objections he immediately removed the same without loss of further time. Even otherwise, in view of the dictum laid down by the Hon'ble Supreme Court in the matter of Mst. Sabiran Bi referred supra, once a petition has been filed within time the same cannot be later on dismissed on the point of limitation for the reason that the office objections were not removed or the same were removed beyond the period prescribed by the office. Even otherwise, in number of cases the Hon'ble Supreme Court of Pakistan has expressed that technicalities should not impede the way of justice. Consequently, this Review Application is hereby accepted and the impugned order dated 21-12-2010 is set aside. Office is directed to fix the Civil Revision for its decision before the Court.