' MUHAMMAD KHALID MEHMOOD KHAN, J.--- The petitioner filed a suit for declaration claiming that he is the bona fide purchaser for value of Plot No,52-C, Abu Bakar Block New Garden Town, Lahore from Mst. Nattho Bibi, the exemptee of plot, the respondent-L.D.A. Has issued transfer letter to him.
When he filed an application for sanction of construction plan, he came to know that respondents Nos.4 to 6 by preparing forged documents are claiming the ownership of said plot. The petitioner then prayed a declaration to the effect that he is a lawful owner, being bona fide purchaser for value of plot in question and he is in its absolute possession and any proceedings planned for cancellation of petitioner's plot be declared illegal, void and ab initio. He has also claimed injunction against respondents Nos.1 to 3 along with the suit, the petitioner filed an application for interim relief for maintaining status quo till the pendency of suit.
2. Respondents Nos.1 to 3 admitted the transfer of plot in favour of petitioner but claimed that matter requires some inquiry about the ownership of two parties. Respondents Nos.4 to 6 opposed the suit as well as application for interim injunction and claimed that they are the bona fide owners of the suit plot.
3. Learned trial court after hearing the parties accepted the application for interim relief.
Respondents filed an appeal against the said order. Both the appeals were allowed by the learned appellate court and order dated 28-7-2007 was set aside. 'Hence, the present petition.
4. Learned counsel for petitioner submits that admittedly petitioner is in possession of plot on the basis of a transfer order issued by respondent-L.D.A and admittedly the said letter has not been cancelled so far. Further submits that petitioner is a bona fide purchaser for value from one Nattho Bibi, the exemptee of plot against her acquired land. Further submits that L.D.A. Is admitting his transfer letter as well as possession and as such it is in the interest of both the parties that status quo be ordered to be maintained till the final disposal of suit. Further submits that in case interim injunction is not allowed, the petitioner will suffer an irreparable loss.
5. Learned counsel for respondent-L.D.A., frankly admits that facts of case are complicated and could only be decided after recording the evidence but approve the grant of interim relief. Learned counsel for respondents Nos.4 to 6, however, opposed the petition. Learned counsel for respondents Nos.4 to 6 firstly attacked the maintainability of petition on the ground of limitation. On merits he submits that petitioner's transfer letter is prior in time and Nattho Bibi was not the exemptee of plot. No doubt, L.D.A. Initiated different inquiries against Nattho Bibi which remain unsuccessful but even then it is a proven fact on record that Nattho Bibi was not the real exemptee of plot and as such the impugned order was rightly passed by the learned appeal court: He adds that petitioner has failed to made out a case of interim relief.
6. Heard. Record perused.
7. The argument of learned counsel about the maintainability is that Proviso-II of section 115, C.P.C.
Provides that maximum period for filing a revision petition is 90 days and it will commence from the date of announcement impugned order, his contention is that there is no need for obtaining certified copies in terms of Proviso-I of section 115, C.P.C., he submits that order impugned was announced on 3-6-2008 and thus petition could be filed up to 2-9-2008 and admittedly petition has been filed on 20-9-2008, hence the petition is barred by time. Further submits that no application for condonation of delay has been filed and in the absence of petition under section 5 of the Limitation Act, the petition is liable to be dismissed on this score alone.
8. For substantiating his point of law, he has relied on Sultan Khan and 3 others v. Sultan Khan (2004 M LD 918) and Mst. Banori v Jilani through legal heirs and others (PLP 2010 Supreme Court 1186).
9. For rebutting the argument of learned counsel for respondent, learned counsel for petitioner contends that without obtaining certified copies the petition could not be filed as it is a condition precedent under Proviso-I of section 115, C.P.C. That filing of copies of pleadings, documents and order of subordinate court necessary with the petition. He submits that certified copies of the documents were provided to him on 27-8-2008 and as such the petition is within time and that is the reason he has not filed application under section 5 of Limitation Act. He 'further contends that petitioner's case is covered under section 12(2) of the Limitation Act. According to learned counsel, his limitation will start from the date of providing the certified copies of impugned order and documents.
9. Provisos I and II of section 115, C.P.C. Provide as under:- "Sec. 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 lies thereto, and if such subordinate Court appears-
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[Provided that, where a person makes an application under this subsection, 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 Court] [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:] "
10. There is no cavil of the proposition of law that jurisdiction of court under section 115, C.P.C. Is a supervisory jurisdiction of superintendence and control. The High Court in its revisional jurisdiction can take cognizance for correction of illegalities and irregularities in the judgments/orders of subordinate courts as suo motu and no bar of limitation can be placed against suo motu jurisdiction of the revisional court but after amendment in section 115 of C.P.C: the maximum period allowed for filing the revision petition by the aggrieved person is 90 days. Proviso-I of section 115, C.P.C. Was added under. Section 3 of Ordinance X of 1980 and Proviso-II was made part by the Act VI of 1992. The words used in Proviso-I are "Furnish copies of the pleadings, documents and order of the subordinate Court" and in Proviso-II words used are "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".
11. In fact the amendment of providing copies in three days and disposal of revision petition within six months was added by Civil Law (Reforms) Act XIV of 1994. The plain reading of words "copies of the pleadings, documents and order" gives the impression that revision could be filed on the basis of uncertified copies but when Proviso-II was added it was made obligatory upon the court to provide copy of decision within three days. If we read together the provisos-I and II of section 115, C.P.C. It emerges that trial or appeal court will provide the copy of impugned order to aggrieved party within three days. Now the question arose, whether the court will provide copy to both the parties or to aggrieved party only. In this provision of law the word of both the parties is not mentioned, this shows that intention of law maker is that copy will be provided to the applicant who intend to assail the order, otherwise it will be impossible for the trial court to provide the copies of orders to both the parties to suit as number of orders passed by the trial court are revisable, hence the logical conclusion of this provision of law is that copy will be provided to party who apply for it, it is not necessary that applicant is aggrieved or not and if any party to litigation apply under the said provision of law the court is bound to provide the copy of impugned order within three days. The court is not the substitute of copying agency but the copy issued by the court will serve the legal requirement of law and revision will be entertainable on the basis of copy provided by the court.
12. Initially no doubt, limitation was not provided for filing a revision petition and nor it was obligatory to file the copy of pleadings, documents and impugned order but after the addition of provisos-I and II it becomes obligatory for the aggrieved party to file copies of pleadings, documents and impugned order.
12-A. The core question which requires resolution is whether words used in Proviso-I qua copies of the pleadings, documents and orders of the subordinate Court should be certified copies of the documents or the photo copies or carbon copies or copies attested by oath commissioner or counsel of petitioner will be deemed to be the copies in terms of provision of law ibid. If the answer is that copies issued by the court will be deemed to be certified copies then definitely limitation will start from the date of impugned order or maximum after the issuance-of copies of impugned order, but it has to be seen what is the meaning of copies of pleadings, documents and order of subordinate Court.
13. Under Order XLI(1), C.P.C. For filing the appeal words used are "the memorandum shall be accompanied by a copy of the decree appealed". In Order XLI(1) it is no where mentioned that certified copy of decree is required for filing an appeal but it is now settled law that copy of decree mean a certified copy. This issue came up before this Court and in Reasat Ali Khan v. Mahfuz All Khan and others (AIR 1929 Lahore 771), it was held that:- "the word "copy" is used in Order 41 and also Order 42 means copies duly certified under the provisions of the Evidence Act and thus rendered capable of production before a Court of law for examination."
13. This issue with reference to section 115, C.P.C. Also came up, before the Hon'ble Supreme Court of Pakistan in Riasat Ali v. Muhammad Jafar Khan and 2 others (1991. SCMR 496) and it was held as under: "Two side real questions arise out of this matter. First, whether copies of evidence stand deliberately excluded from the wording of the proviso and need not be filed. Second, whether copies of the pleadings, documents and orders of the subordinate Court refer to certified copies or ordinary copies duly attested by a counsel. As regards the first question, the omission of the word "evidence" from the proviso appears to be the result of inadvertence on the part of the legislative draftsman. However, whether it was accidental or deliberate, Court left the advantage, if any arising out of the omission, secure, rather than disturb it and cause greater hardship to the litigant over a procedural matter. As regards the second question, the words "copy of the decree appealed from and (unless the appellate Court dispenses therewith) of the judgment", as appearing in ' Order XLI, Rule 1(1) of the Code of Civil Procedure which relates to appeals, have all along been treated as certified copies, which interpretation over the years has assumed the force of law. The copies referred to in the proviso to subsection (1) of section 115 of the Code can also be treated as referring to certified copies."
14. The perusal of law enunciated by the Hon'ble Supreme Court of Pakistan shows that word copy of documents or copy of decree has been interpreted as certified copies. This means the revision could not be filed without certified copies of documents detailed in Proviso-I of section 115, C.P.C.
The Proviso-II of section 115, C.P.C. Provides that it is the duty of court to provide copies of impugned order within three days from the date of announcement of the order. The Hon'ble Supreme Court of Pakistan while interpreting the Proviso-II of section 115, C.P.C., has held in Mst. Banori v. Jilani through legal heirs and others (PLD 2010 Supreme Court 1186), judgment relied upon by learned counsel for respondents, as under:--- "12. A conscious imposition of such a burden on a subordinate court would be further evident from another circumstance available in law. A perusal of the provisions of rule 20 of Order XX of the C. P.
C. Would demonstrate that the one drafting the said obligation and the one introducing the same in the said second proviso knew that under the scheme envisaged by the C.P.C., anyone desirous of obtaining a copy of a judgment was required to make an application for the purpose and it was then that the same was supplied to him at his expense. And that the court being obliged to supply a copy of a judgment to a party was a concept of the Criminal Procecdure Code which was alien to the C.P.C. Reference may be made to the provisions of section 371, Cr.P.C. Importing a concept foreign to the C. P. C. And adding the same to it, could not have been without a purpose nor could the same have been an unconsidered act on the part of the lawmaker. The same, therefore, deserves the respect which would be due to it."
15. The dictum laid down by the Hon'ble Supreme Court of Pakistan supra shows that person desirous to file a revision petition has to apply to court for obtaining copy of impugned order. The word used in Proviso-II of section 115, C.P.C. Also provides that court will provide the copy of decision within three days and the words documents, pleadings, are not mentioned in the said proviso and as such the possible interpretation of Proviso-II read with Proviso-I of section 115, C.P.C., in my humble opinion, is that the court who passed the order has to provide the copy of impugned order only.
16. Now the question arose whether refuge under section 12(2) of Limitation Act will be available to the aggrieved party or not? Learned' counsel has relied on Mst. Banori v. Jilani through legal heirs and others (PLD 2010 Supreme Court 1186). Question of interpretation of section 12(2) of Limitation Act was not under discussion in the said judgment, whereas the facts of present case are that learned trial court passed order on 3-6-2008 and if the arguments of learned counsel for respondents are admitted in toto then the revision petition could be filed upto 2-9-2008, the petitioner in this case applied for issuance of certified copy of order with the copying agency on 27-6-2008, certified copy was prepared on 27-8-2008 and it was delivered on 27-8-2008. As the petitioner has filed application on 27-6-2008, he lost 24 days out of the period of 90 days and as such 66 days were available to petitioner for filing the revision from the date of issuance of certified copy of the impugned order and other documents. The petitioner has filed the revision petition on 20-9-2008, as 66 days were available to petitioner for filing the revision petition and as such petition could be filed safely upto 1st of November, 2008, meaning thereby if limitation of petitioner will start from 27-8-2008 the revision is within time.
17. The Hon'ble Supreme Court of Pakistan has held in judgment Riasai Ali v. Muhammad Jafar Khan and 2 others, supra, that the word copy of decree will be deemed to be a certified copy and also the same analogy will be applicable in case of revision. Hence, the petitioner's limitation will start from 27-8-2008 less 24 days which he lost in filing the revision application for issuance of certified copy of impugned order and other documents.
18. The Hon'ble Supreme Court of Pakistan in a case Mst. Banori v. Jilani through legal heirs and others (PLD 2010 Supreme Court 1186), supra, has given the guidelines to subordinate courts which are reproduced as under:--- "16. But before we part with this judgment, we consider it necessary to reiterate that the courts of law can never be a party to putting legal provisions to disuse or to discard the same. It is one of the obligations of every court to give effect to each and every provision of each and every law.
Needless to add that the provisions of the two provisos added to section 115, C.P.C., were extraordinary provisions incorporated to eliminate or at least to minimize delays in dispensation of justice. It was to avoid delays caused in the process of obtaining copies of decisions that the courts were asked to provide such copies within three days. Summoning and retention of subordinate courts' record by the revisional courts was another fact contributing towards such delays. As a cure, the applicants were ordered to furnish copies of the requisije record along with the applications submitted by them and the courts were asked to decide these applications without calling for the subordinate courts' records unless that availability of such record with the revisional court was indispensable on account of reasons to be recorded in writing. Fixing of outer limit of time for filing of applications invoking revisional jurisdiction and also fixing of time for final disposal of these applications, were also wrung of the same ladder.
17. To show the required respect to these provisions by following them in letter and spirit, we direct that copies of this judgment shall be sent to the Registrars of all the High Courts who would place the same before the Hon'ble Chief Justices of the High Courts and also circulate them to all the learned Judges of the subordinate courts within their respective jurisdictions so that it is ensured:
(a) that steps are taken, in accordance with law, to order the applicants under section 115, C.P.C.
To supply copies of the pleadings and documents where these pending applications were not accompanied by the same;
(b) that steps are then taken again in accordance with law, to return the records to the subordinate courts where the same had been summoned otherwise than through specific orders passed by the revisional courts or where the same had been requisitioned not for indispensable reasons recorded in writing by the, revisional courts;
(c) that in future, no applications filed under section 115, C.P. C. Are entertained unless accompanied by copies of the commanded documents and record;
(d) that every subordinate court provides a copy of the decision sought to be revised to the person who so seeks, within the prescribed three days; and finally
(e) that the revisional courts decide such-like applications within six months and do so without calling the subordinate court record unless it was indispensable to summon such a record."
12. Admittedly the above pronouncement came after filing of revision petition, hence after the said judgment the trial court will be bound to issue copy of impugned order to party who apply and no application under section 115, C.P.C. Will be entertainable unless accompanied by copies of commanded documents and record and under the guidelines of Hon'ble Supreme Court of Pakistan, the ,trial court will be bound to provide the impugned order within three days on the application of aggrieved party and this will be helpful for disposal of cases expeditiously. The practice prevailing in the civil court at present is that petitioner has to file application for issuance of certified copies of the order impugned and other documents with the copying agency and copying agency is issuing certified copies according to their own work load and as such certified copy of the impugned order as well as documents were issued to petitioner on 27-8-2008, hence the present petition is within time and section 12(2) of Limitation Act will apply in this case and the time consumed for obtaining certified copies will be excludable in the present circumstances of case.
19. On merits it is an admitted fact between the parties that as per L.D.A's record petitioner is transferee of plot exempted to one Nattho Bibi, respondents Nos.4 to 6 are claiming their right on the basis of order passed by the Chief Minister, Punjab. The matter has to be decided by the learned trial court after recording the evidence whether the action of Chief Minister, Punjab for allotting the plot was according to law and the exemption allowed to Nattho Bibi was legal or not.
The petitioner is claiming himself to be the bona fide purchaser for value and he has to prove his case before civil court. Learned trial court has rightly held that issuance of status quo will be in the interest of both the parties but learned appellate court has ignored the pleadings of parties and as such order impugned is erroneous.
20. In view of above, this petition is allowed, the impugned order of learned appellate court is set aside and the order of learned trial court is restored.