' SADIQ HUSSAIN BHATTI, J.---This Revision Application is directed against the judgment and decree dated 27-7-2009 passed by learned Ist Additional Sessions Judge, Karachi West in Civil Appeal No: 85 of 2007, dismissing the same and maintaining the Judgment dated 28-9-2007 and decree dated 3-10-2007 passed by IVth Senior Civil Judge, Karachi West in Civil Suit No. 29 of 2004 filed by the respondents Nos. 1 to 6.
2. Brief facts of the case are that on 7-1-2004 respondents. Nos.1 to 6 herein, through attorney Muhammad Anwar son of Nisar Ahmed, filed a Civil Suit for Declaration, Cancellation and Administration, Mandatory and permanent Injunction against the applicant and respondents Nos.7 and 8 hereinbefore the IVth Senior Civil Judge West at Karachi wherein it was averred that plaintiffs and respondent No.1 are the surviving legal heirs of deceased Niaz Muhammad who died at Karachi on 12-9-1995. In the year 1978 the plaintiff No.1 /respondent No.1 gave her savings to her deceased husband in order to purchase property bearing House No.622/237, Sector 9/E, Orangi Town, Karachi (hereinafter referred as the suit property). Accordingly the deceased purchased the suit property from one Tauheed Hassan son of Jan Muhammad through conveyance deed dated 24-4-1978 and till now the suit property is in possession of plaintiff No.
1. In the year 1989-1990 the deceased husband of the plaintiff No.1 got paralyzed and became completely disabled person and even out of senses. During his illness the applicant used to visit the deceased's house and during such visits, she fraudulently took away original title documents of the suit property and later on managed to get executed a deed of declaration of Oral Gift in her favour.
In the year 1992 soon' after discovery that original documents in respect of the suit property are missing, the respondent No.1 immediately filed a Suit bearing No.11 of 1992 for Declaration and Permanent Injunction before, the Honourable High Court of Sindh at Karachi. The aforesaid case was contested by the appellant who filed her written statement when it was disclosed that the applicant fraudulently got executed a deed of declaration of oral gift deed dated 3-10-1991 by showing that the deceased husband of the respondent No.1 was exclusive owner of the said property and same has been gifted away by him vide alleged deed of gift dated 3-10-1991. This suit was pending up to 2-2-2000, when the applicant showed her willingness to resolve the dispute/controversy amicably outside the court by promising that she will return all original title documents of the suit property to the respondent No.1 and also assured that gift deed registered with respondent No.7 shall be got cancelled. However, after withdrawal of the said case she did not adhere to her commitment to resolve the matter amicably as per mutual understanding. The respondent No.1 reported this dispute to area/Town Nazirn before whom the parties appeared who, after hearing both the parties, decided the dispute by his decision dated 27-6-2002. The respondent No.1 in pursuance of the decision of Nazim dated 27-6-2002 approached the respondent No.7 for cancellation of alleged gift deed dated 3-10-1991 by submitting application, but the respondent No. 7 did not entertain such application and advised that unless the applicant appears before him and submit her no objection, the oral gift deed, cannot be cancelled. Hence the respondent No.1 filed Suit No.29 of 2004. This suit was decreed vide judgment dated 28-9-2007 in favour of the plaintiff/respondents No.
1. The applicant assailed the same through Civil Appeal No. 85 of 2007, which was 'dismissed vide judgment dated 27-7-2009. Thereafter, being aggrieved by the judgment and decree in the suit as well as in the appeal, the applicant filed the instant Revision Application to assail the same. Along with this Civil Revision the applicant filed an application under section 5 of the Limitation Act, being C.M.A. No. 955 of 2010, seeking condonation of delay of six days in filing of the present Revision Application. On 22-8-2013, arguments were heard on this application only.
3. Since an application for condonation of delay has been filed by the applicant herself, therefore, there is no dispute that there is delay in filing of the present revision application.. Therefore, intricate calculation for determination of the exact delay in filing of the appeal is not required at present stage as the only question which arises for determination at this stage is whether section 5 of the Limitation Act is applicable to the instant revision application or not.
4. Learned counsel for the applicant has urged that since the counsel of the applicant fell seriously ill and was advised complete bed rest, therefore, he was unable to file the revision application within time. He relied on the case of Muhammad Shafi v. Muhammad Hussain (2001 SCM R 827), and, prayed for condonation of delay in filing of the present revision application. In the cited case the delay occasioned due to failure of the counsel to inform the appellant about the decision of the appeal in time. The Hon'ble Supreme Court condoned the delay. This case, however, is not applicable to the present case as it did not relate to a revision application under section 115, C.P.C.
5. On the other hand, learned counsel for respondent No.1 contended that provisions of section .5 of the Limitation Act were not applicable to the proceedings under section 115, C.P.C. In view of the provision of S. 29(2). Of Limitation Act, 1908. He relied on the judgments reported as ALLAH DINO and another v. MUHAMMAD SHAH and others (2001 SCM R 286) and CITY DISTRICT GOVERNMENT, LAHORE through District Coordination Officer, Lahore v. Mian MUHAMMAD SAEED AMIN (2006 SCM R 676).
Therefore, it was argued by the learned counsel that the application under section 5 of the Limitation Act merits dismissal and consequently, the revision application itself is to be dismissed being barred by limitation.
6. Before. Proceeding any further, it would be advantageous to reproduce section 29(2) of the Limitation Act, which reads as under: "29(1)-------------------------------
(2) Special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period was prescribed therefor in that schedule, and for the purposes of determining any period of limitation prescribed for any such, appeal or application by any special or local law (a) the provisions contained in sections 4, 9 to 18 and section 22 shall apply insofar as, and to the extent to which, they are not expressly excluded by such special or local. Law, and (b) the remaining provisions of this Act shall not apply."
7. It is crystal clear that in case any special -or local law prescribes a different period of limitation for a suit, appeal or application, then only sections 4, 9 to 18. And section 22 would be applicable and the remaining provisions of the Limitation Act would not be applicable. Thus, provisions of section 5 of the Limitation Act would not be applicable in such event.
8. In the case of Allah Dino and another (supra), a Bench of, the Hon'ble Supreme Court, while dealing with similar case, held as under: "5. We have given our anxious thought to the proposition under examination. There is no cavil with' the argument that if the Statute governing the proceedings does not prescribe period of limitation, the proceedings instituted thereunder shall be controlled by the Limitation Act as 'a whole. But where the law under which proceedings have been launched prescribes itself a period of limitation like under section 115, C. P. C. Then benefit of section 5 of the Limitation Act cannot be availed unless it has been made applicable as per section 29(2) of the Limitation Act as held the cases (i) The Canara Bank Ltd. v. The Warden Insurance Co. Ltd. (AIR 1935 Bombay 35), (ii) Abdul Ghaffar and others v. Mst. Mumtaz (PLD 1982 SC 572), (iii) Ali Muhammad and another v. Fuai Hussain and others (1983 SCMR 1239), (iv) Collector of Customs (Appraisement) v. Messrs Saleem Adaya, Karachi (PLD 1999 Karachi 76). And (v) Haji Muhammad Ashraf v. The State and 3 others (1999 MLD 330)."
9. Similarly, in the cases of City District Government Lahore, (supra), a Bench of the Hon'ble Supreme Court held as under:--
3. It may be noted that on legal plane, he admits that in view of the judgment of this Court reported in Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286, section 5 of the Limitation Act has not been made applicable on the proceedings under section 115, C.P. C. With the assistance of learned counsel appearing for the petitioner and the caveat, we have calculated the period/time spent by the petitioner in filing the revision petition. In this behalf, it may be noted that Additional District Judge pronounced the judgment on 10th June, 2002 and application for obtaining the certified copy of the judgment was filed on 17th June, 2002, which was ready and delivered on 19th July, 2002 and in this manner it was incumbent upon the petitioner to have filed revision petition on or before 13th October, 2002 but admittedly it was filed on 21st October, 2002, beyond the period of limitation, therefore, in our opinion learned High Court has rightly non-suited the petitioner.
10. Thus, from the above cited judgments of the apex Court it is clear that in respect of a revision application under section 115, C.P.C. The provisions of section 5 of the Limitation Act are not applicable. On the contrary, the judgments cited at the Bar by the counsel for the applicant are distinguishable on facts as the same are not in revision applications but in appeals.
11. After discussing the legal ground in the above terms, I would now deal with the factual aspect of the case. It is an admitted position that the revision application was filed beyond the period of limitation as the application under section 5 'of the Limitation Act itself states that there is a delay of six days in filing of the revision application. Filing of an application under section 5 of the Limitation Act itself shows that there is delay in filing of the revision application for which condonation is sought. In the instant case the listed application was filed under section 5 of the Limitation Act for condonation of delay in filing of this revision application but, as discussed above, provisions of section 5 of the said Act are not applicable to proceedings under section 115, C.P.C.
Therefore, the delay in filing of the present revision application is not condonable.
12. The upshot of the above discussion is C.M.A. No. 955 of 2010 is dismissed. Consequently, this revision application, being barred by limitation, is also dismissed.