Ali Akbar Qureshi, J:- This civil revision is preferred against the judgment dated 15.04.2002, passed by learned Additional District Judge-I, Bhakar, whereby the application under Section 12(2) C.P.C.
Filed by the respondents was accepted, the judgment and decree dated 16.04.1992, passed by the then learned appellate court, was set aside, appeal titled Khadim Hussain etc. Ghulam Muhammad etc. Was accepted and the suit filed by the petitioners/plaintiffs against the respondents/defendants was dismissed.
2. Shortly the facts necessary for the disposal of this civil revision are, that the petitioners/plaintiffs filed a suit for possession and mesne profit against the respondents qua the suit land measuring 13 Kanal 16 Marla situated in Khata No.35 Min Khatooni No.45/45 Chak No.45/TDA Tehsil and District Bhakar, wherein it was contended, that the respondents/defendants were in possession of the suit land as tenant under them; that the respondents/defendants when refused to accept themselves as tenant in the suit land and started claiming themselves the owner of the property, the suit was filed.
3. The suit was contested by the respondents namely Khadim Hussain, Sheru and Fida Hussain through written statement, wherein they controverted the contents of the plaint and also raised certain legal objections. Mainly it was contended in the written statement, that the respondents are owners in possession from the last thirty years and the petitioners had already taken the land in lieu of their land and they had nothing to do with the suit land.
4. The learned trial court, after framing necessary issues and recording evidence of respective parties, decreed the suit vide judgment and decree dated 20.07.1989 in favour of the petitioners.
Against which, the respondents (Khadim Hussain etc.) filed an appeal which was dismissed on 16.04.1992 by the learned Additional District Judge, Bhakar; the judgment and decree dated 16.04.1992 was not assailed before any forum including this Court, by the respondents; that the respondents also filed a suit for declaration, wherein the mutation of the suit land was challenged, which was dismissed on 22.01.2007 by the learned Civil Court, Bhakar, against which an appeal was filed which too was dismissed on 16.03.2010 and revision petition bearing C.R No.2340/2010 was also dismissed by this Court on 21.06.2010; that against the said dismissal order dated 21.06.2010, no further remedy was availed before the Hon'ble Supreme Court of Pakistan.
5. The respondents thereafter filed an application under Section 12(2) C.P.C. On 15.09.1997 before the learned appellate court challenging the validity of judgment and decree dated 16.04.1992, passed by the then learned appellate court (learned Additional District Judge), whereby the appeal filed by the respondents was dismissed in earlier litigation. The learned appellate court accepted the application under Section 12(2) C.P.C. Filed by the respondents and consequently, set aside the judgment and decree dated 16.04.1992 and also dismissed the suit filed by the petitioners/plaintiffs.
6. Learned counsel for the petitioners contends, that the application under Section 12(2) C.P.C. Filed by the respondents was hopelessly barred by time as the judgment and decree by the learned appellate court was passed on 16.04.1992 and the application under Section 12(2) C.P.C. Was field on 15.09.1997 whereas the limitation provided for filing the application under Section 12(2) C.P.C.
Under section 181 of the Limitation Act, 1908, is three years, therefore the findings recorded by the learned appellate court on issue No.1 are erroneous. Further submits, that even otherwise, the learned appellate court seriously erred in law while accepting the application under Section 12(2)
C.P.C. Wherein the respondents had failed to refer any material. Reliance is placed on United Bank Limited v. (M/s) The Hinna Export Co. (Pvt.) Limited, Office Karachi (1998 PSC 78), Happy Family Associate through Chief Executive v. Messrs Pakistan International Trading Company (PLD 2006 Supreme Court 226) and Noor Muhammad v. Muhammad Iqbal and 5 others (2014 CLC 1459).
7. In response of the contentions raised by learned counsel for the petitioners, the learned counsel for the respondents has submitted, that although the afore-referred facts are correct but the respondents thereafter approached to the Revenue authorities for the redressal of their grievance, therefore, the period consumed before Revenue authorities can be condoned under Section 14 (2) of the Limitation Act, 1908.
8. Arguments heard, record perused.
9. The learned counsel for the respondents has not denied the facts submitted by the petitioners, that the petitioners filed a suit for possession and mesne profit qua the suit land, which was decreed in their favour; that the appeal filed by the respondents/defendants was dismissed on 16.04.1992; that the respondents did not assail the aforesaid judgment and decree before any forum; that the respondents also filed a suit for declaration, challenging the mutation of the suit land which was dismissed on 22.01.2007 by learned civil court wherein an appeal was filed which was dismissed and the civil revision filed by the respondents was also dismissed by this Court on 21.06.2010, against which no further remedy was availed; that the application under Section 12(2)
C.P.C. Was filed by the respondents on 15.09.1997 against the judgment and decree dated 16.04.1992, passed by the learned appellate court in favour of the petitioners.
The aforesaid facts which have not been denied by the respondents, are sufficient to show, that all the proceedings conducted in the afore-referred litigation were very much in the knowledge of the respondents and as the respondents actively participated, therefore, the respondents at this stage, are precluded by law to take the plea which is contrary to the afore-referred record.
10. Now it is to be seen, as to whether the application filed by the respondents under Section 12(2)
C.P.C. Was within time as stipulated in section 181 of the Limitation Act, 1908, and the respondents are entitled to take the benefit given in sub section (2) of section 14 of the Limitation Act, 1908, on the ground, that the respondents prosecuted in good faith before the Revenue authorities.
11. It would be beneficial to consult the provisions of sub section (2) of section 14 of the Limitation Act, 1908, which is reproduced as under: "In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence, another civil proceedings whether in a court of first instance or in a court of appeal against the same property for the same relief, shall be excluded, where such proceedings is prosecuted in good faith. In a court which, from defect of jurisdiction or other cause of like nature, is unable to entertain it."
The afore-referred Section of the Limitation Act revolves around two words which are significant i.e. Due diligence and Good faith. The word 'due diligence' has been defined in Black's Law Dictionary (Eighth Edition) as: "ordinary diligence. The diligence that a person of average prudence would exercise in handling his or her own property like that at issue.
Reasonable diligence. A fair degree of diligence expected from someone of ordinary prudence under circumstances like those at issue."
Whereas 'Good faith' can be defined in simple words, that: Good faith. Nothing shall be deemed to be done in good faith which is not done with due care and attention.
In Black's Law Dictionary (Eighth Edition), the 'Good faith' is defined as: "good faith, A state of mind consisting in (1) honesty in belief or purpose, (2) faithfulness to one's duty or obligation, (3) observance of reasonable commercial standards of fair dealing in a given trade or business, or (4) Absence of intent to defraud or to seek unconscionable advantage .
The Hon'ble Supreme Court of Pakistan, while dealing with section 14 of the Limitation Act in a judgment cited as Sherin and 4 others v. Fazal Muhammad and 4 others (1995 SCM R 584), has defined the word 'Due Diligence' as; "Diligence is a state of human conduct. What should be the standard for assessing the behavior of an appellant to style him as diligent. Because of fluidity of the notion of diligence, it is difficult to set up a precise yardstick."
In AIR 1960, Andhra Pradesh 406 (V 47 C 134), while defining Section 14, it has been observed, that; "Proceedings before a railway administration cannot be regarded as civil proceedings but as proceedings before an administrative office, prosecution of proceedings in good faith, party needlessly taking proceedings before particular authority is not acting in good faith and party pursuing wrong remedy on wrong advice of counsel is not entitled to exemption."
12. No doubt, it differs from case to case as to whether a litigant had acted diligently and with care.
Whereas, in this case, the petitioners filed a suit for declaration which was contested by the respondents and the final decree was passed by the learned appellate court vide judgment and decree dated 16.04.1992 and this judgment and decree was not assailed before any forum and allowed to attain finality. The respondents also filed a suit for declaration challenging the mutation which was dismissed up to this Court through a judgment dated 21.06.2010 in C.R No.2340/2010, against which no further remedy before the Hon'ble Supreme Court of Pakistan, was availed and by this way, the judgment attained finality. The mala fide of the respondents/defendants starts when the respondent filed an application under Section 12(2) C.P.C. On 15.09.1997 against the judgment and decree dated 16.04.1992, passed by the learned appellate court, whereby the appeal filed by the respondents was dismissed.
13. The conduct of the respondents is to be looked into in the light of the aforesaid facts. It can safely be observed, that the conduct of the respondents does not entitle the respondents to take the benefit of Section 14 of the Limitation Act, as the respondent has tried to re-open the matter which has already been finally concluded; firstly on 16.04.1992 and secondly on 21.06.2010 by this Court, therefore, the conduct of the respondents is questionable.
The respondents, instead of availing further remedy as provided in the law, against the judgment and decree dated 16.04.1992 passed by the first learned appellate court and secondly on 21.06.2010 by this Court, after a considerable period filed an application under Section 12(2) C.P.C. On baseless grounds. This practice has not been approved by the Hon'ble Supreme Court of Pakistan. Reliance is placed on Happy Family Associate through Chief Executive v. Messrs Pakistan International Trading Company (PLD 2006 Supreme Court 226). The relevant part of the esteemed judgment is reproduced as under: "8. The petitioner-defendant sealed his own fate by not challenging the judgment and decree of the High Court dated 18.05.2000 passed in R.F.A No.53/2000, dated 23.01.2001 and passed in R.F.A.No.509/2001 whereby the High Court upheld the decree in the sum of Rs.1,01,87,500.
That decree attained finality and the arguments now being submitted against this decree could have been examined if the petition for leave to appeal/appeal against the decree was filed in this Court. Application under section 12(2) or under section 151, C.P.C. Is no substitute to regular appeal or revision or review nor these provisions can be construed as something over and above the normal modes of questioning a decree by way of appeal, revision or review. It is unfortunate that some litigants attempt to frustrate the decree/its execution by resorting to provision of section 12(2) and section 151, C.P.C., unnecessarily."
15. From the above circumstances, it is crystal clear, that the respondents had not acted with good faith and due diligence as required by law. The learned appellate court, without taking into consideration firstly the conduct of the respondents and secondly the plethora of judgments delivered by this Court and Hon'ble Supreme Court of Pakistan, accepted the application under Section 12(2) C.P.C., therefore, the judgment impugned herein is not only result of jurisdictional defect and legal infirmity but also against the well settled principle of law. The respondents, in any case, is not entitled to take the benefit of law (Section 14(2) of Limitation Act) to re-open a matter which has already been finally adjudicated.
16. Even otherwise, in the light of the judgment cited as PLD 2006 Supreme Court 226, the application under Section 12(2) C.P.C. Was not applicable in any manner whatsoever, therefore, this type of the application should be buried at the early stage instead of allowing such type of the people to engage the innocent citizens into frivolous and endless litigation.
17. Resultantly, this civil revision is allowed, the judgment dated 15.04.2002 passed by learned Additional District Judge, Bhakar, in an application under Section 12(2) C.P.C. Is set aside and the decree passed by the learned trial court as well as the lower appellate court is restored with throughout cost.