I intend to decide two revision petitions CR No. 1350/92 and CR No. 1351/92 through this judgment as these are filed against same judgment and decree. Through these revision petitions the petitioner, the Province of Punjab, has assailed the judgment and decree dated 14.5.1989 passed by the learned civil judge and judgment and decree passed by the learned appeal Court on 21.3.1990.
2. Briefly stated the facts of this revision petition are that Muhammad Latif respondent filed a suit for declaration and consequential relief on 18.5.1985 claiming that he purchased land measuring 192 Kanals 13 Marlas bearing Khasra No. 1858, 1859, 1849, 1845, 1848, 2012, 1803, 1843, 1990, 1994, 2092, 1864, 439, 543, 541, 1279 and 143 situated in Mouza Charrar Tehsil and District Lahore from its evacuee owners namely Ojagar Singh, Jagir Singh sons of Suran Singh, Pandat Krishan Mall son of Raj Mall, Pala Singh son of Esser Singh and Boota Singh son of Veer Singh by way of 25 unregistered sale-deeds dated 03.5.1945 and 09.6.1946. He claimed that as the price of each sale-deed was less than Rs.100/- so the registration of these sale-deeds were not compulsory under the law. He asserted that in pursuance of the said sale-deed he obtained physical possession of purchased land. On partition of sub-continent and creation of Pakistan, the non-Muslim vendors migrated to India but even after their migration the land was shown in the revenue record in the name of evacuee owners. According to law it was made obligatory under the evacuee laws that any sale entered into before 1947 was to be declared and scrutinized by the Deputy Custodian to the effect that the land is not evacuee property.
3. The respondent applied to the Deputy Custodian U/S 22 of Act, XII of 1957 vide case No. 176 of 1962. The Deputy Custodian after holding the inquiry and recording the evidence vide judgment dated 30.10.1968 allowed the application of respondent declaring that the land, subject-matter of the unregistered sale-deed, is not evacuee property and is owned by the respondent. According to law the said judgment of the Deputy Custodian was confirmed by the Custodian vide order dated 30.8.1969. He filed an application before the Assistant Commissioner/ Collector, Lahore for implementing the orders dated 31.10.1968 and 30.8.1969 passed by the Deputy Custodian and Custodian for attestation of mutation in his favour. The Assistant Commissioner/Collector Lahore after holding inquiry and confirmation from the Custodian office, vide order dated 08.12.1976 directed the Tehsildar to attest the mutation of change of ownership in favour of the respondent.
The Tehsildar on receipt of the orders of Collector, attested the Mutation No. 1079 to the extent of land measuing 55 Kanals 13 Marlas comprising Khasra Nos. 1279, 2831/543, 551, and 1994 vide order dated 28.12.1976 in his favour. Although the entitlement of the petitioner was of 192 Kanals 13 Marlas but the circle Revenue Officer attested the mutation of land measuring 55 Kanals 13 Marlas only without assigning any reason. The respondent applied to the Collector for attesting the mutation of entire land but without success. He specifically asserted that some interested persons and inimical parties moved different applications/complaints to the Collector and the Assistant Commissioner/Collector against him. The collector without allowing any opportunity of hearing, cancelled the mutation in his favour. In these circumstances he filed a suit with the prayer that orders dated 30.8.1969 and 31.10.1968 passed by the Custodian and Deputy Custodian be declared to be passed in exercise of their lawful jurisdiction and these two orders have become final. It is further prayed that he is the owner in possession of land, subject-matter of Mutation No. 1079 attested on 18.12.1976 and that the order dated 13.9.1980 for cancellation of Mutation No. 1079 be declared null and void.
4. The petitioners appeared in the suit and submitted their written statement. It was disclosed that the respondent has earlier filed a suit but withdrew it on 19.4.1981 without the permission to file fresh suit. It was also objected that the claim of the respondent is fraudulent and the two orders dated 30.10.1968 and 30.8.1969 have been obtained through fraud. The Mutation No. 1076 is outcome of concealment of facts and practicing of fraud with the petitioners.
5. Out of divergent pleadings of the parties, the following issues were framed by the learned trial Court:-- "ISSUES:
1. Whether the suit is bad for non-joiner of necessary parties? OPD
2. Whether the suit is malicious and vexatious? OPD
3. Whether the plaint does not disclose any cause of action? OPD
4. Whether the suit cannot proceed in vide of preliminary Objection No. 5 of the written statement?
OPD
5. Whether the plaintiff is owner of the suit land? OPP
6. Relief
6. The respondent completed his evidence on 10.1.1983 and the petitioners continued to obtain adjournments and ultimately the learned Civil Court vide order dated 17.9.1986 passed an order for disallowing the petitioner to lead evidence and decreed the suit vide judgment dated 14.5.1989.
7. The petitioners and Revenue Officer assailed the said judgment and decree through two Appeals No. 290/1989 and 291/1989. These two appeals were ultimately dismissed by the learned appeal Court vide judgment and decree dated 21.3.1990. Hence, the present revision petition. However the other respondent has not filed revision against the judgment and decree dated 21.3.1990.
8. Learned Assistant Advocate General submits that property, subject matter of decree is outcome of fraudulent transaction. The respondent has procured orders dated 31.10.1968 and 30.8.1969 from Deputy Custodian and Custodian by misstating the facts and producing fake documents. He submits that 25 sale-deed in favour of respondent are compulsory registered U/S 17(i)(b) of Registration Act, 1908. He submits that mutation of 55 Kanals 13 Marlas was attested on 28.12.1976 and was cancelled on 13.9.1980, the cancellation order can be challenged within one year but the suit was filed after seven years without any excuse. He raised the objection of limitation on the ground that cause of action firstly arose in favour of respondent in 1946 and lastly on 31.6.1969 but the suit has been filed on 18.5.1985 and as such the suit is barred by time. He further adds that learned Civil Court wrongly struck of the petitioner's right to examine the witnesses on 17.9.1968.
9. Learned counsel for the respondent supports the judgment and decree of both the Courts below and submits that the revision petition is barred by 02 years 04 months and 17 days and no explanation has been given for the delay of 2 years 4 months and 17 days. He further submits that respondent is bona-fide purchaser for value and the learned Civil Court, has rightly set-aside the order of cancellation of mutation in his favour. He maintains that he is still in possession of the property as owner of the same and petitioner is wrongly not implementing the decree passed by two Courts below.
10.The Lahore Cantt Cooperative Housing Society, (now DHA) filed an application CM No. 1-C of 2004, Under .Order I, Rule 10 CPC claiming that the. Lahore Cantt Cooperative Housing Society is a necessary party to the revision as they have purchased the land measuring 93 Kanals out of the land, subject-matter of the decree under challenge, the land purchased by them is comprising of Khasra Nos. 1036, 1849, 1843, 3097, 2092, 1885, 1912, 1990 and 1994 village Charrar, Lahore Cantt. The mutation in their favour has already been attested and they have developed a Housing Society on the said land.
11.The application was opposed by the respondent but consented by the petitioner and the said application is also pending disposal.
12.Heard. Record perused.
13.The claim of the respondent as per averments in plaint is that he had purchased land through 25 unregistered sale-deeds from the evacuee owners on 03.5.1945 and 09.6.1946 and obtained possession of land when the evacuee owners left Pakistan after independence of Pakistan, the evacuee owners were shown the owner of land in revenue record and according to law his sale was subject to confirmation by the Custodian. When the custodian confirmed his sale, he applied to Revenue Officials for attestation of mutation in his favour and the revenue officer only mutated land measuring 55 Kanals 13 marks out of his total land measuring 192 Kanals 13 marlas. According to Respondent No. 1, he purchased land on 03.5.1945 and 09.6.1946 but why he has not got mutation attested in his favour, the evacuation of the evacuees started after 14.8.1947 why he remained silent till 14.8.1947. There is no averments of these facts in the plaint nor has been explained in evidence, the only averment available in the plaint is that according to law promulgated after 14.8.1947, he got confirmed his sale by the Custodian. The prime evidence available with the Respondent No. 1 was his possession, he purchased land in March 1945 and June 1946 but he has not produced any Khasra Girdawri showing his possession on the land. No doubt he has placed on record the two orders of Custodian but these orders show that it is only for confirmation of alleged sale. If Respondent No. 1 has purchased the land from the evacuee owners, it was his duty to get the mutation attested in 1945 and 1946 and the agricultural property can be transferred through mutation. On the day of independence of Pakistan i.e 14.8.1947, the land was shown to be the exclusive property of earlier owner and as such by operation of law, the said property become the property of Central Government in accordance with the evacuee laws. The learned Court below have not examined this aspect of the case and only relied on two orders of Custodian. It seems that petitioners officials helped the respondent for procuring ex-parte decree from the Court in his favour. The petitioner officials never tried to produce evidence for unearthing the real facts. They continued to obtain adjournments on adjournments and ultimately their right to produce evidence was closed.
14.The objection of learned counsel for Respondent No. 1 is that revision petition is barred by two years 04 months and 17 days.
15.In reply to the said objection learned AAG submits that to doubt the revision petition was filed after the lapse of 02 years 04 months and 17 days but it was due to the unavoidable circumstances, the delay in filing the petition is not intentional. He submits that Under Section 115 of the Civil Procedure Code the High Court enjoys the supervisory jurisdiction and if the High Court comes to the conclusion that trial Court has not acted in accordance with law or failed to exercise the jurisdiction vested it or exercised jurisdiction not vested in it, the limitation will not be bar for rectifying the error of the trial Court. He further submits that it is not practically possible for the petitioner to implement the decree as the land has been allotted to the evacuees against their claim in accordance with law who have sold it to different persons, the DHA is one of the purchaser of land and as such they were the necessary party to suit but the Respondent No. 1 has not impleaded them party to the suit. All the purchasers are necessary and proper party and in their absence no effective decree can be passed. He relied on Section 115 of the Civil Procedure Code and Zahoor Hussain V. Ch. Niaz Ali and others (2006 SCM R 1067), Bank at Machine V. Manzoor .Ahmad (2006 SCM R 1068), Evacuee Trust Property Board V. Muhammad Saddique (1995 SCM R 1748), Lahore Cantt Cooperative Housing Society Ltd V. Muhammad Ammar and others (2007 CLC 160) and Hassan Din V. Hafiz Abdus Salam and others (PLD 1971 SC 65).
15.Learned counsel for the respondent has vehemently argued that limitation for filing of Revision petition is 90 days and after the amendment in CPC vide amended Act (iii) 1992, 90 days limitation has been provided for filing the revision. Learned counsel for the respondent submits that respondent purchased the land from the evacuee owners and the land, subject matter of the suit was never been an evacuee land, so transfer of land in favour of DHA and other persons is against law. He opposed the application of DHA U/O I, Rule 10 CPC. The main thrust of arguments of the learned counsel for the respondent is mainly on limitation, his argument is that appeal filed by petitioners against decree was dismissed in their presence and. as such the petitioner cannot claim any relaxation in limitation. Before law everyone is equal and the respondent Government has no edge against the ordinary citizen of Pakistan. He further submits that the petitioner has not even cared to file any application for condonation of delay. He relies on Ali Muhammad V. Mst.
Zahid Perveen (1992 CLC 2328), Abdul Hameed V. Ghulam Muhammad etc. (PLJ 1987 SC 288), M/S Canforce Ltd: V. Syed Ali Shah etc. (PLD 1977 SC 599), Islamic Republic of Pakistan V. M/S Abdul Ghani Abdul Rehman Ltd. (2002 CLC 1039), Ministry of Defence V. Janed and Co. (2005 CLC 1004),.
Masood Akhtar V. Manzoor Ahmad (2005 CLC 1651) and Haji Muhammad Zaman V. Zafar Ali Khan and others (PLD 1986 SC 88).
16.It is a settled principal of law that revisional jurisdiction primarily intended for correcting errors made by the subordinate Courts. It is available for correction of erroneous decisions. It is correct that provision of Section 151 CPC cannot be invoked to defeat the provisions of Civil Procedure Code or to condone gross negligence. But it depends upon the facts of each case, whether the Courts below have acted t in accordance with law or not?
17.No doubt the limitation for filing the revision petition provided in the Civil Procedure Amendment Act (iii) of 1992 is 90 days but it has to be seen whether this limitation curtails the powers of High Court in the exercise of its revisional jurisdiction or not. Section 115 Code of Civil Procedure was amended vide an amendment Act (iii) of 1992 and prior to this amendment the limitation for filing the revision petition was not prescribed for the reason that revisional Court has power to examine the illegality or irregularity committed by its subordinate Courts in its supervisory jurisdiction. Infact the jurisdiction U/S. 115 of CPC is a Revisional jurisdiction of the Superior Courts.
The bare perusal of the amended Section 115 CPC shows that it has not taken the powers of Revisional Court to supervise administratively and legally the working and other acts of the subordinate Court. The amendment for imposing the limitation for filing the revision petition seems to has been added without examining the legal and true sense of Section 115 CPC. Section 115 CPC is a supervisory jurisdiction of the superior Court of its subordinate Courts and in case the limitation of 90 days is implemented on the supervisory jurisdiction of High Court, how the High Court or Revisional Court can supervise the affairs of subordinate Courts. The powers of Superior Court Under Section 115 are Suo Moto powers and if it is assumed that limitation of 90 days will be applicable then it means that suo moto powers of the revisional Court has been restricted and definitely this is not the intention of amendment of 1992. The true construction of Section 115 CPC would indicate that High Court may at any time call for the record of any case form the subordinate Courts in order to determine as to whether the subordinate Court has exercised jurisdiction not vested in it or has failed to exercised jurisdiction vested in it or has committed material irregularity while deciding the disputes of the public-at-large. It is a matter of common sense and logic that if the revisional powers of the High Court are intact it should not be restricted by any period of limitation. Even if after amendment in Section 115 CPC the embargo of limitation has been placed but the suo-moto powers of the High Court U/S. 115 CPC are still intact. Section 115 CPC is reproduced as under:
115. Revision.--(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lie thereto, and if such subordinate Court appears-- (a)to have exercised a jurisdiction not vested in it by law, or (b)to have failed to exercise a jurisdiction so vested, or (c)to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit. {Provided that, where a person makes an application under this sub-section, he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate.} {Provided further that such application shall be made within ninety days of the decision of the subordinate Court "which shall provide a copy of such decision within three days thereof and the High Court shall dispose of such application within six months} {(2) The District Court may exercise the powers conferred on the High Court by sub-section (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject-matter whereof does not exceed the limits of the appellate jurisdiction of the District Court.
(3)If any application under subsection (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such- application shall be made to either of them.
(4)No proceedings in revision shall be entertained by the High Court against an order made under sub-section (2) by the District Court.)
18.The perusal of second proviso of Section 115 shows that embargo of limitation is applicable on a person if he makes application under this Section not the High Court. Hence, it can safely be concluded that if any person filed an application under amended Section 115 CPC, the Court can consider the said application an information and can take action under its suo moto power in appropriate case. In my view even after amendment in Section 115 the suo moto powers of the High Court being revisional are intact and limitation of 90 days is not applicable against these powers.
19.The facts of this case are that impugned judgment and decree was passed on 21.3.1990 and admittedly the limitation was not applicable at that time. Section 115 Civil Procedure Code was amended vide amendment Act (iii) of 1992 and the amendment was made effective on 24.5.1992.
The amendment will be applicable prospectively, the revision was filed on 05.8.1992, hence, even if it is assumed that amendment of limitation is effecting the present petition, even then 90 days will be expiring on 23.8.1992 and the present petition was filed on 05.8.1992, meaning thereby the present revision petition is within time on this score also.
20.The above said discussion will show that Section 115 CPC have two parts and the limitation on the first part of this section i.e 115 CPC is not applicable specially where the merits so demand.
21.The learned counsel for the respondent placed his reliance on Con force Ltd. V. Syed Ali Shah (PLD 1977 Supreme Court 599) and argues that provisions of CPC cannot be invoked to suffer injustice or to condone gross negligence. The facts of this case are distinguishable as in this case Section 115 CPC was not in discussion. Learned counsel for the respondent has placed reliance on Hassan Din V. Abdus Salman (PLD 1991 Supreme Court 65) and contends that limitation of 90 days is applicable on all revisions filed before the High Court. No doubt any revision filed U/S. 115 (2), will be subject to limitation but where the. High Court exercise its powers U/S. 115 (i) the clog of limitation will not come in the way of High Court in the administration of justice. Lastly the learned counsel for the respondent submits that there is a concurrent findings of two Courts below and High Court even if come to different opinion after scanning the evidence has no powers and jurisdiction to interfere in the concurrent findings of both the Courts below.
22.The record shows that respondent obtained a decree purely on technical ground when the learned Civil Court invoked the provisions of Order XVII, Rule 3 CPC against the petitioner. The respondent/plaintiff has not disclosed to the learned trial Court that the land after cancellation from his name has been transferred to Provincial Government or a number of other persons as the said land was declared an evacuee property. He has not impleaded the persons who have been allotted the land as is evident from the list of mutations submitted by the learned counsel for the applicant in CM 1/2004. The respondent has not placed his documents about his possession on the suit land. All these facts were in the knowledge of the respondent but he intentionally failed to bring those facts in the knowledge of Court and as such the Court proceeded to pass the decree in his favour in the absence of true facts. The petitioner has not produced' any evidence, hence the conclusion drawn by the learned Courts below is one sided. Further, it is the intention of law that all the 'disputes between the parties should be decided on merits and no one should be allowed to take benefits of technicalities.
23.In view of the above, I accept both these petitions and set-aside the impugned judgments and decrees of two Courts below and remand the case to leaned trial Court who will allow the petitioner to produce its evidence and will decide the suit afresh on merits: 24.As far as the CM No. 1/2004 is concerned, at this stage it cannot be allowed as the revision has been accepted and decrees of two Courts below have been set-aside. The case has been remanded to the learned trial Court. The petitioners may approach the Civil Court for impleading them as party to the suit if they have any claim in the suit land. There is no order as to costs.