' MUHAMMAD IQBAL KALHORO, J.--- This order shall dispose of listed application (CMA No,47 of 2009) filed by the legal heirs of applicant namely Muharram and others for recalling the order dated 30-4-2001 passed in this civil revision application whereby the same was dismissed.
2. The application in hand was filed on 4-2-2009, whereupon the notice was issued to the respondent No,1, who has filed his objections in the shape of counter-affidavit.
3. The relevant facts leading to the filing of the present application are that applicant Muharram filed a 1st Class Suit No,47 of 1981 before the Court of learned 1st Senior Civil Judge, Sukkur for declaration and injunction against the respondents with the following prayers:---
(a) Declare the grant order made in favour of defendant No,1 by defendant No,2, illegal and the further orders based on it passed by defendant No,3, dated 28-10-75, of defendant No,4 dated 27- 3-78, and 29-12-80, as illegal ultra vires, arbitrary void ab inito and further declare that the plaintiff is entitled to the grant of the suit land S.No,914, Deh Kandhra Taluka Rohri District Sukkur.
(b) Grant Permanent Injunction against the defendants restraining them from ejecting the plaintiff from suit land or interfering into peaceful possession and payment of the suit land by any way whatsoever, through themselves or through their agents, servants.
(c) Award costs of this suit.
(d) Grant any other relief as deemed fit.
4. After hearing the parties and examining the evidence adduced by them, the suit was dismissed vide judgment dated 24-11-1987 and Decree dated 19-11-1987 passed by the learned IInd Senior Civil Judge, Sukkur, against which the applicant preferred an appeal bearing Civil Appeal No,94 of 1997 filed on 27-12-1987, but that also was dismissed vide Judgment dated 23-4-1989 by the learned Additional District Judge, Sukkur, subsequent whereof he filed the instant civil revision application on 26-7-1989.
5. On 30-4-2001, the instant revision application ca me-up for hearing before this Court when the counsel for the applicant appeared and made a statement that during the pendency of the revision in hand, the applicant Muharram had expired and his nominee namely Lal Bux was also no more alive. It appears that on such statement/contention of the learned counsel for the applicant, this Court passed impugned order whereby the revision application was dismissed.
6. The learned counsel for the applicant has filed the application in hand, inter alia, on the facts and grounds that since the revision application was admitted to regular hearing, as such, it could not have been dismissed for the absence of the parties rather it should have been decided on merits, therefore the order in question, is illegal, void, abinitio and since the order is void, no limitation would run against it and the application under section 151, C.P.C. For recalling it could be filed at any time. It is further stated that the knowledge of the impugned order was received by the applicants on 27-1-2009 when revenue authorities had called upon them on the application moved by the respondent No,1 to hand over the possession of the disputed land to him, as such the limitation, if any, for challenging the impugned order would run from the date when the applicants acquired such knowledge.
7. It is further stated that applicant Muharram had died during the pendency of instant revision application without leaving any issue and his brother namely Lal Bux, who was his legal heir/nominee had also died, the children of deceased Lal Bux being ultimate legal heirs of the applicant Muharram could not have come to know regarding the pendency of the proceedings as no notice was issued to them through Mukhtarkar concerned to determine their status of being legal heirs of the applicant nor any publication was made in any newspaper to find out about them. Thus the applicants being legal heirs of deceased applicant stood condemned unheard by the dismissal of the revision application.
8. The application further states that two of the legal heirs namely Aslam and Qurban are deaf and dumb besides being illiterate and they including Mst.Bisra their sister, were minors at the time of death of applicant Muharram and Lal Bux, therefore were not in the knowledge relating to the pendency of present revision application. Applicants namely Aslam and Qurban being disable, their case comes within the purview of Disabled Persons and the piece of land, which is the subject matter of the present revision application, is the only source of livelihood/income to all of them.
9. It is further stated in the application that the Judgments and Decrees passed by both the Courts below are not in consonance with the law and equity and are not founded on just grounds which, therefore, are liable to be set aside.
10. The respondent No,1 has filed objections wherein he has stated that the instant application for recalling the order dated 30-4-2001, being not maintainable is liable to be dismissed. According to him, the said application has been filed after the delay of 9 years, which has not been properly explained by the applicants and as far as the limitation for filing an application under section 151, C.P.C. Is, since no limitation is prescribed under the law, Article 181 of the Limitation Act, 1908 would come into the play, which provides the period of 3 years for filing such application. The present application since, has been filed beyond that period, the same cannot be entertained.
11. It is further stated that on fateful day viz 30-4-2001, the learned counsel himself had made a statement before the Court that there were no other legal heirs of applicant Muharram on the basis of which, the revision application was dismissed and now if the applicants are aggrieved by the order passed by this Court, they can file a suit for damages against their counsel for making such statement.
12. The objections further depict that no cogent reason has been cited by the applicants for recalling the order in question after such a long delay and non-pursuing the matter by the applicants, in fact, amounted to wilful default on their part, which cannot be remedied in the present proceedings.
13. During arguments, the learned counsel for the applicants contended that the application in hand, could not be filed within due time because the applicants were minors at the time of passing the impugned order and he being the counsel of applicant Muharram only was not aware of their existence. He further contended that vide statement dated 27-2-2013, he filed the death Certificate of applicant Muharram Buriro, which shows his date of death as 15-4-1999 whereas the death Certificate of his legal heir namely Lal Bux denotes the date of his death as 12-12-1997. He further stated that the birth Certificate of applicant Qurban shows his date of birth as 6-10-1994 whereas in the birth Certificate of applicant Aslam his date of birth is recorded as 1-1-1999, as such both being minors at the time of impugned order, were not aware of the pendency of the present proceedings before this Court or its dismissal. He while referring to the above documents argued that as per settled law no period of limitation would run against the minors till they attain the majority. He further argued that since the order sought to be recalled is void ab initio, as such the same is liable to be set aside without taking into consideration any period of limitation, inasmuch as, the void order could be challenged at any time and no limitation is prescribed under the law for calling into question such order. He further argued that the present applicants came to know about the proceedings and the impugned order only when the Mukhtarkar concerned called them on the application of respondent No,1 for the purpose of handing over the possession of disputed land to him, as such, the period of limitation against the applicants would be counted from the date of their acquiring such knowledge, which in the present case is 27-1-2009 and not from the date when aforesaid order was passed. He in support of his arguments relied upon the following case-law:-- ' Ajmal Khan v. Secretary to Government of Punjab Housing and Physical Planning Department and others 1986 PLC (C.S.) 423, M. Ikramul Haq v. Federation of Pakistan through Secretary, Establishment Division, Rawalpindi and another 1989 PLC (C.S.) 890, Umar Khan v. Nasim Raza and others 1990 MLD 1062, Muhammad Afzal and another v. Muhammad Amin and 6 others 1999 YLR 2593, Sabir Ali and others v. Ch. Shahbaz Khan 1986 MLD 865, Muhammad Shafiq and another v.
Maqsood Ahmed and 2 others 2002 CLC 1372, Federation of Pakistan v. Metropolitan Steel Corporation 2002 PTD 87, Mst.Rabia Bibi and others v Ghulam Rasool and others 2004 SCMR 394, Tolomal and 6 others v. Deputy Commissioner and Additional Settlement Commissioner, Khairpur and 3 others PLD 1972 Karachi 116, Shahbaz Aslam v. Zaman Khan and another 1998 CLC 393, Shamsun Nissa and another v. The Karachi Road Transport Corporation and others PLD 1975 Kar.
914, Atta Muhammad and another v. Mst.Elahi Khanum 2004 CLC 262, Begum Syeda Azra Masood v.
Begum Noshaba Moeen and others 2007 SCMR 914, and Muhammad Sadiq v. Mst.Bashir and 9 others PLD 2000 SC 820.
14. Conversely, while refuting the arguments of the learned counsel for the applicants, the learned counsel for the respondent stated that the order passed by this Court, does not tend to show that the instant revision application was dismissed in non-prosecution. According to him, it is quite obvious from bare reading of the order that the same was passed in presence of the counsel of the applicants and on the basis of his statement made before the Court in respect of non-existence of any legal heirs left by applicant Moharram and his brother Lal Bux. He further contended that the application in hand, is miserably time-barred as the same has been filed after the delay of 09 years, which has not been properly explained. Per learned counsel the law of limitation is very clear and specific that delay of each day, is to be explained when an application is filed beyond the prescribed period of its limitation. He further argued that in respect of applicants Aslam and Qurban, the birth Certificates have been filed by the counsel for the applicants to establish their date of birth; however, in respect of applicant Mst.Bisra no such Certificate has been produced to justify non-filing of present application within the prescribed period of limitation. He further argued that applicant Muhammad Ilyas as per his CNIC filed by the applicant in present proceedings, his date of birth is 3-10-1975, which makes it abundantly manifest that he was major at the time of passing the order in question but did not bother to challenge it. He has also contended that law would not come to help an indolent, who sleeps, over his rights for so many years. He in support of his arguments has relied upon the following case-laws:--- ' Amanullah Soomro v. P.I.A. Through Managing Director/ Chairman and another 2011 SCMR 1341, Mrs. Rehmat Jehan v Government of Punjab through Chief Secretary and others 2011 SCMR 1344, Aquil Lotia v Daily Ausaf, Karachi through Chief Editor and another PLD 2007 Karachi 594, Mst.Hajran Bibi and others v. Abdul Ghani 2002 SCMR 1405, Abdul Hussain v. Tariq Casting Proprietorship and another 2010 YLR 2683, Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631 and Rehmat Din and others v. Mirza Nasir Abbas and others 2007 SCMR 1560.
15. I have heard the arguments of the respective counsel for the parties and perused the material available on record. For the sake of convenience the impugned order is reproduced here as follows:--- "30-4-2001. Mr.Kanyalal Nihal advocate for the applicants. Mr.Shaikh Fazaldin for respondent No, 1.
' It is contended by the learned counsel for the applicant that during pendency of this civil revision the applicant Muharam Ali Buriro has expired away and nominee of the applicant namely Lal Bux Buriro has also died thereafter. There are no other L. Rs of the applicant and for want of instructions Civil Revision No,60 of 1989 is dismissed."
16. The learned counsel for the applicants has mainly propounded two contentions for recalling- the above order that the order is void, which can be called into question at any time as against void orders no limitation would run, since the applicants namely Aslam and Qurban were minors besides being deaf and dumb when the impugned order was passed, the period of limitation for filing the application in hand would be counted from the date of their attaining majority. The other contention of the learned counsel was that since the revision application was already admitted, it could not have been dismissed in absence of parties. The record filed by him in support of the instant application, however, does not support the pleas raised by him for recalling the dismissal order because as per the birth certificates, applicant Muhammad Aslam attained majority in the year 2010 and applicant Qurban Ali became major in the year 2012, which means that at the time of filing instant application viz 4-2-2009, they were still minors, so the contention of learned counsel that limitation for filing instant application would be counted after the above named applicants attained majority is factually without any force. More so the contention is also not legally tenable as a minor, in terms of Order XXXII, C.P.C., can institute proceedings through next friend acting on his behalf during his minority. The date of birth recorded in CNIC of applicant Muhammad Ilyas is 3-10-1975, which manifests that at the time the impugned order was passed, he was already major but he never bothered to challenge or to enquire about the proceedings instituted by his uncle Moharram after his death, his pleading ignorance about the proceedings filed by his uncle Muharram for grant of land situated in front of his house, is simply unbelievable. Moreso, the contention of learned counsel to explain delay in filing the instant application appears to be self contradictory as on one hand he claims minority of applicants as a preclude to filing of the instant application meaning thereby that the applicants were aware about the pendency of the proceedings but were waiting to become major so that they could file application for setting aside the impugned order, and on the other hand, it has been vehemently stated that the applicants came to know about the impugned order only on 27-1-2009 on an application moved by the respondent No,1 before District Officer Revenue, Sukkur for getting the possession of the land, where after they filed the instant application.
17. Trying to explain the long delay of 8 years in filing the present application, the learned counsel contended that applicants acquired knowledge of the impugned order on 27-1-2009 when revenue authorities called upon the applicants on the application of respondent to hand over to him the possession of the disputed land, which however, is not borne out of any document submitted by the applicants in support of the instant application. To a specific query, the learned counsel admitted that he has no copy of any notice issued by revenue authorities to establish that applicants were called by them for vacating the disputed land, which is sufficient to dispel any idea to believe that the applicants had come to know about impugned order exactly on 27-1-2009.
The examination of application of respondent No,1, filed by learned counsel along with instant application and referred as the only source by the applicants to have acquired knowledge through regarding the impugned order, reveals that the same was not filed for getting possession from applicants, nay, a request was made by him to issue T.O. Form in respect of the granted land.
18. Under these circumstances it becomes obvious that the applicants have not been able to properly explain the delay of 8 years in filing the present application to recall the impugned order which is, thus held to be miserably time-barred. Although there is no specific provision made in C.P.C. For dismissal of revision application for non-prosecution, yet such powers can be considered to be inherent in all Courts exercising the powers of a civil Court.
19. The bare reading of impugned order reflects that the same was passed on the statement made by the learned counsel informing the Court about the death of applicant Moharram and his nominee Lal Bux and there being no one left to plead the proceedings, he pleaded want of instructions to continue the revision application thereby leaving no option to the Court but to dismiss it. Though the learned counsel was aware of dismissal order announced on his statement made in the Court but where after he does not appear to have tried to use his goof offices to communicate the same to the applicants.
20. While attending to the contention of learned counsel that the impugned order being void is liable to be dismissed, suffice it to say that no illegality, perversity or lack of jurisdiction by the Court while passing the impugned order has been pointed out and it also does not appear that the Court acted in a manner inconsistent with due process to accede to such contention. The order denotes the presence of learned counsel, his making a certain contention consequent whereupon his (implicit) consent in letting the dismissal of revision application attain finality, for he did not make any attempt to record his objection thereon nor he caused or made a deliberate effort to allow the proceedings to continue till the time the applicants were duly contacted or informed by him.
21. The applicants are the nephews and niece of late Moharram who had originally filed the suit in the year 1986 challenging the grant of land in favour of the respondent No,1 by the revenue authorities after his applications, claiming his entitlement over the land before the revenue hierarchy upto the Senior Member Board of Revenue were dismissed. Admittedly, a person cannot claim the grant of land by the Government as a matter of right, the land is to be granted to a person only after a procedure in terms of Land Grant Policy is carried out. The legal dispute raised by the late applicant Moharram questioning the grant of land to the respondent No,1 over him was a dispute exclusively between him and respondent No,1, which stood extinguished with the death of applicant Moharram as he at the time of his death was not holding any title over the land which could be contested or inherited by the present applicants making them eligible to file the instant application. The applicants in their own independent capacity, subject to the terms of Land Grant Policy, could always approach the revenue authorities for grant of land.
22. I have gone through the case laws relied upon by the learned counsel for the applicants, with due respect to the dictums laid down therein, I am of the view that the same are not applicable to the peculiar facts and circumstances prevailing in the present proceedings.
23. In view of above discussion, all the listed applications are dismissed.