Muhammad Azam Khan, C.J.--Through the captioned appeal with leave of the Court the appellants call in question the judgment of the High Court dated 30.4.2008 whereby Civil Revision Petition No, 37/06 has been dismissed.
2. The facts necessary for disposal of this appeal are that the plaintiffs-appellants filed a declaratory suit in respect of land bearing Survey No, 892, 894, 896 and 897, total measuring 20 kanals situated in village Sagiyam, Tehsil and District Kotli, alleging therein, that the gift-deed in respect of the said land registered on 23.7.1998 is against the law, rules, against the facts, without partition of the land, in excess of the share and inoperative on the rights of the plaintiffs-appellants and liable to be set aside. Consequential relief for possession was also sought. In alternate, it was prayed that it shall be declared that gift-deed is in fact a sale-deed and the plaintiffs-appellants are entitled for possession on the basis of right of prior purchase being co-sharers in khewat and khata. It was further alleged that their lands are also contiguous to the disputed land. They prayed for a decree against an ostensible price of rupees one million. During the pendency of suit the trial Court on 28.7.2003 passed an order that the plaintiffs-appellants shall deposit the security amounting to 1/5th of the ostensible price. This order of the trial Court was not complied with.
Resultantly the trial Court dismissed the suit on 18.8.2003 to the extent of right of prior purchase, however, the suit to the extent of declaration was ordered to be competent and the proceedings in the suit to that extent shall continue. The plaintiffs appellants filed a revision petition on 12.12.2007 in the Azad Jammu & Kashmir High Court. A learned single Judge in the High Court dismissed the revision petition on the ground of limitation.
3. The learned counsel for the appellants argued that during the pendency of the suit, plaintiffs- appellants filed an application for amendment which was disallowed. They filed a revision petition against that order and the file went up to the Supreme Court. After exhausting the remedy of appeal up-to the Supreme Court they came to know about the order dated 18.8.2003, therefore, the revision petition was within time. He further argued that a suit cannot be dismissed partly. The suit was for declaration on the basis that gift-deed is without possession, without partition of the land, against the law and in excess of the shares. Alternatively, the prayer for possession on the basis of prior right of purchase was made. The learned counsel referred to and relied upon the cases reported as Manager, Jammu & Kashmir, State-Property in Pakistan vs. Khuda Yar & another [PLD 1975 Supreme Court 678], The learned counsel further argued that the order passed by the trial Court for partial dismissal of the suit was ab initio void and no limitation is provided for an ab initio void order. The learned counsel referred to and relied upon the cases reported as Muhammad Fakhar vs. The Telephone Employees Cooperative House Building Society Ltd. [1988 CLC 1353] and Abdul Rashid vs. Gulzar [1995 SCR 307].
In the case reported as Manager, Jammu & Kashmir, State Property in Pakistan vs. Khuda Yar & another [PLD 1975 Supreme Court 678] it was observed that in presence of alternate remedy by way of appeal the High Court in appropriate case, can interfere in revision under Section 115, CPC, and may make such order in the case as it thinks fit.
In the case reported as Muhammad Fakhar vs. The Telephone Employees Cooperative House Building Society Ltd. [1988 CLC 1353] and Abdul Rashid vs. Gulzar [1995 SCR 307] a revision petition filed after a period of four years was dismissed being time barred.
The case reported as Abdul Rashid vs. Gulzar [1995 SCR 307] lays down the correct law that where the order passed by the lower Court is patently illegal or found to have been passed without jurisdiction, despite the provision of an order being appealable, the High Court has power to correct an order passed by a subordinate Court in exercise of powers of superintendence and control vested in it under Section 46 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 read with Section 115, CPC and Section 35 of the Courts & Laws Code, 1949.
4. While controverting the arguments, the learned counsel for the respondents, Mr. Muhammad Azeem Dutt, advocate, argued that the order of the AJ&K High Court is perfectly legal. The impugned order was passed by the trial Court on 28.7.2003, while the revision petition was filed on 12.12.2007, which period comes to four years and nine months, as such the High Court has committed no illegality in dismissing the revision petition. Even on merits no legal question was agitated before the High Court, therefore, the High Court correctly dismissed the revision petition.
The learned counsel referred to and relied upon the cases reported as Talib Hussain &another us.
Amina Bibi & 4 others [PLD 1982 SC (AJ&K) 42], Faqir Muhammad vs. Mutwali [PLD 1982 SC (AJ&K)
55] & Section 21(4) of the Right of Prior Purchase Act.
The case reported as Talib Hussain & another vs. Amina Bibi & 4 others [PLD 1982 SC (AJ&K) 42] relates to extension of time for making good deficiency in decretal amount. The judgment is not relevant. There is no question for extension of time involved in the case in hand because no application for the purpose was filed.
In the case reported as Faqir Muhammad vs. Mutwali [PLD 1982 SC (AJ&K) 55] similar View has been expressed that time cannot be extended for making good deficiency in, depositing the decretal amount. It was further held by the Court that it is settled law in preemption cases that when the plaintiff or his counsel fails to find out the nature of the order passed and allows the suit to be dismissed, the plaintiff couldn't be said to be prosecuting his case diligently. In the referred case proposition was for extension of time. The same is not relevant for the purpose of the present case.
5. We have heard the learned counsel for the parties and perused the record. The record reveals that the plaintiffs-appellants filed a suit or declaration whereby they challenged a gift-deed dated 23.7.1998 being in excess of share, being of undivided property, against law, against rules and in alternate it was sought to be declared that the gift-deed is in fact a sale-deed, which has been registered as such only to defeat the rights of prior purchase of the plaintiffs on 9.1.2003 in the Court of Civil Judge Court No, 1, Kotli. After filing of written statement, on 27.7.2003, the trial Court ordered the plaintiffs to deposit 1/5th of the probable value of the land on or before the next date of hearing, which was fixed as 18.8.2003. The plaintiffs failed to despite 1/5th of the amount. On this the Court, on 18.8.2003, dismissed the suit for noncompliance of the order of the Court. After a period of 4(1/2) years, the appellant filed a revision petition in the High Court on 12.12.2007. A learned single Judge in the High Court dismissed the revision petition on the ground of limitation.
Under Section 21(1) of the Right of Prior Purchase Act, the Court shall require the plaintiff to deposit in the Court such sum in the opinion of the Court equal to one-fifth of the probable value of the land of property and under Section 21(4), if the plaintiff fails within the time fixed by the Court or within such further time as the Court may fix, to deposit or furnish the security under sub-section (1) or (2), his plaint shall be rejected or his appeal dismissed, as the case may be.
In the present case the trial Court ordered the plaintiffs-appellants on 28.7.2003 to deposit 1/5th of the ostensible price before the next date of hearing i,e, 18.8.2003 and on his failure to deposit 1/5th of the amount, the Court dismissed the suit to the extent of the right of prior purchase, on 18.8.2003, The trial Court passed the order under Section 21(4) of the right of Prior Purchase Act, which was a legal order.
The plaintiffs-appellants filed revision petition in the High Court on 12.12.2007. The limitation for filing a revision petition is 90 days under Rule 44 of the AJ&K High Court Procedure Rules, 1984 as well as proviso II of sub-section (1) of Section 115, CPC. The revision petition before the High Court was filed after a period of around 41/2 years, which was clearly time barred.
6. The order dated 18.8.2003 shows that the order was passed in presence of the counsel for the parties. It is well-settled law that knowledge of the counsel is knowledge of the party. This Court in the case reported as Chairman AJ&K Council vs. Abdul Latif & 5 others [1997 SCR 264] observed as under: "5. I have given my due consideration to the arguments advanced by the learned counsel for the appellant. The petition for leave to appeal is admittedly time barred by 136 days. By excluding 3 days which were spent in obtaining the copy of impugned judgment of High Court the appeal is still barred by 133 days of limitation as the judgment under appeal was passed on 1st of April, 1996, whereas the petition for leave to appeal was filed on 14.10.1996. It is claimed that the learned counsel representing the Azad Jammu and Kashmir Council delayed intimation about announcement of the judgment and that the petition is within time from the date of knowledge.
This Court has been persistently following the principle that knowledge of the counsel is the knowledge of the client and thus limitation starts running from the date of announcement of judgment if it is announced in presence of the counsel."
Similarly in the case reported as Syed Muhammad Yousaf Shah vs. Secretary Home & another [1999 SCR 297] it has been held as under: "....In our view it is a settled proposition of law that knowledge of counsel would be deemed to be the knowledge of the client. In case reported as AJK Council vs. Abdur Rashid & 9 others [1998 SCR 44], it was held that knowledge of the counsel would be deemed to be the knowledge of the client and thus, failure of the counsel to inform his client about the decision of case does not constitute sufficient cause for condoning delay. In this case reliance was placed upon cases reported as Rahmat Bibi & 4 others vs. Ghazanfar Hussain & another [PLD 1983 SC (AJ&K) 25] & Muhammad Nawaz & 3 others v. Mst. Sakina Bibi & 3 others [1974 SCM R 223].
The order was passed in presence of the counsel for the parties. It was in the knowledge of the counsel for the plaintiffs. He had to file revision petition within 90 days from 18.8.2003.
The result of above discussion is that finding no force in this appeal, it is hereby dismissed with coats.