The petitioners have challenged the judgment and decree dated 13th of November, 2015 passed by the learned Additional District Judge, Sargodha, whereby their appeal against the judgment and decree dated 04th of June, 2014 passed by the learned Civil Judge 1st Class, Sargodha, was dismissed.
2. Precisely the facts necessary for adjudication of instant petition are that the respondent No.1/plaintiff filed a suit for declaration alongwith permanent injunction asserting therein that he alongwith petitioners and respondents No.1 & 4 to 11/defendants are owners of outlet No.61574/T.R Malaka Minor situated at Chak No.45 Tehsil & District Sargodha. It is asserted in the plaint that respondent No.1/plaintiff was cultivating the suit land having square No.52, Kila Nos.5, 7, 11, 20 & 21 from Nakajat situated at square No.52, Kila Nos.20 & 21. It is stated that after the death of predecessor-ininterest of the petitioners and respondent No.1 & 4 to 11/defendants namely Abdur Rehman, they were using Nakajats from approved Khal having square No.52 Kila Nos.20 & 21. It is further asserted in the plaint that respondent No.1/plaintiff filed an application for approval of above Nakajats which was accepted by Sub-Divisional Canal Officer Laloowali which was assailed in appeal by the adversaries before District Coordination Officer and the same was accepted. The suit was resisted by petitioners and respondent No.11 who filed their written statement wherein the assertions contained in the plaint were controverted whereas respondents No.2 and 3 were proceeded ex-parte. From the divergent pleadings of the parties, the learned trial court framed the following issues :- ISSUES Whether the order dated 25-08-2010 passed by the defendant No.2 is against law and facts, based on malafide intention and is liable to be set aside and plaintiff is entitled to the decree for declaration as prayed for? OPP Whether the plaintiff has got no cause of action to file this suit? OPD Whether the plaintiff has not come to the court with clean hands? OPD Whether the plaintiff is estopped by his own words and conduct to file this suit? OPD Whether the instant suit is not maintainable in its present form? OPD Whether the plaintiff has failed this suit just to harass the defendants and the defendants are entitled to get special costs? OPD Relief.
After framing of issues, both the parties were directed to produce their evidence. In this regard, respondent No.1 himself appeared as PW2 whereas he examined Muhammad Hafeez Khan Zaildar as PW1 who produced copy of application in the name of S.D.C.O Laloowali as Exhibit-P1, notice of Zaildar as Exhibit-P2 and statements of parties as Exhibit-P3 & Exhibit-P4. In addition to the oral evidence, respondent No.1 also produced certified copy of order dated 25th of August, 2010 passed by the District Coordination Officer as Exhibit-P8, copy of order dated 14th of June, 2010 passed by S.D.C.O as Exhibit-P9, copy of written statement as Exhibit-P10, personal statement as Exhibit-P11, copy of statement of Muhammad Siddique as Exhibit-P12, Khaka Dastis as Exhibit-P13 & Exhibit-P14, copy of notice as Exhibit-P15 and copy of blue print as Exhibit-P16, respectively. On the other hand, petitioner No.1 himself appeared as DW1 whereas Muhammad Adrees respondent No.5 entered in the witness box as DW2. In the documentary evidence, they produced copy of application for approval of illegal Nakajat as Exhibit-D1, notice in the said application as Exhibit-D2, Khaka Dasti of suit Mougha as Exhibit-D3, statements of parties as Exhibit-D4, report of Zaildar dated 12th of March, 2010 as Exhibit-D5, attested copy of FIR No.287 registered at Police Station Atta Shaheed as Exhibit-D6, copy of FIR No.260 of 2009 registered at Police Station Atta Shaheed as Exhibit-D7, certified copy of bail application of respondent No.1 and others as Exhibit-D8, order dated 03rd of September, 2009 as Exhibit-D9, original arbitration decision as Exhibit-D10, Misal Meadi for the year 2004-2005 as Exhibit-D11, certified copy of order passed by District Co-ordination Officer as Exhibit- D12, certified copy of order of S.D.C.O as Exhibit-D13, Aks Shajra of square No.51/52 as Exhibit-D14, copy of register Haqdaran Zamin for the year 2008-2009 as Exhibit-D15, copy of register Haqadaran Zamin of Khata No.317/313 for the year 2008-2009 as Exhibit-D16 and certified copy of Warabandi dated 21st of May, 2008 as Exhibit-D17, respectively. Upon completion of evidence and hearing both the sides, the learned trial court decreed the suit by way of judgment and decree dated 04th of June, 2014. The petitioners, feeling aggrieved from the said judgment and decree filed an appeal before the learned Additional District Judge, Sargodha which was contested by the respondent No.1 and consequently, the same was dismissed being barred by time vide judgment and decree dated 13th of November, 2015, hence this petition.
3. Learned counsel for the petitioners submitted that the learned trial court has illegally decreed the suit and the judgment is not tenable under the law. Learned counsel contended that the learned lower Appellate Court has also erred in law while dismissing the appeal on account of limitation. He added that copy of judgment and decree of learned trial court was not delivered in time to the petitioners. Learned counsel argued that the petitioners have been penalized due to the negligence of their counsel who was conducting the case before the learned trial court. Learned counsel added that the appeal of the petitioners was wrongly dismissed on the ground of limitation by way of impugned judgment and decree dated 13th of November, 2015.
4. I have heard the learned counsel for the petitioners and perused the record.
5. Since the appeal of the petitioners was dismissed on the sole ground of limitation so without adverting to the merits of the case I will examine the impugned judgment on this prospective alone. It is evident from the record that the learned Civil Judge decreed the suit on 04th of June, 2014. The petitioners challenged the said judgment and decree through an appeal which was filed before the learned Additional District Judge, Sargodha on 01st of September, 2014. The appeal was dismissed being barred by time. Section 3 of The Limitation Act, 1908 casts a duty upon the Court to examine the question of limitation irrespective of the fact whether it is agitated by any of the parties or not. The learned Additional District Judge, in exercise of its powers, first of all dilated upon the question of limitation and observed that the appeal is barred by time as it was filed with a delay of about twenty nine days. The petitioners have failed to give any sufficient reason for the said delay. Though an application in terms of Section 5 of The Limitation Act, 1908 was moved for the said purpose but the same did not disclose any sufficient cause justifying delay in filing the appeal. The petitioners were bound to demonstrate a sufficient cause for seeking condonation of delay in filing the appeal. Reliance in this respect can be placed on "ATA ULLAH MALIK versus (1) THE CUSTODIAN EVACUEE PROPERTY, WEST PAKISTAN AND KARACHI, SARDAR BATTAN SINGH HARNAM SINGH, S. ISHWAR SINGH HARNAM SINGH (4 ) S. AMAR SINGH ISHWAR SINGH, RASHID MERWARI IRANI AND KHUDA DAD ARDSHER IRANI" (PLD 1964 S.C 236), the relevant extract from the judgment supra is reproduced below:- "Under Section 5 of the Limitation Act there has to be a finding of sufficient cause. In pre-Partition India sufficient cause had been defined as circumstances beyond the control of the party and I do not know of any case wherein this definition of sufficient case had been rejected. However, at least in determining sufficient cause while dealing with the same expression in Order IX, rule 8, C.P.C. And Order IX, rule 3, C.P.C the Courts had been lenient and had been condoning some negligence i.e. Negligence to the extent to which it is regarded as human though they never condoned gross negligence. At the same time the Courts had always been strict in demanding proof of sufficient cause for every day which had expired after the ordinary period of limitation."
6. The main stay of the petitioners is that the copy was delivered to them on 30th of August, 2014, so the limitation for filing the appeal to be counted from the said date and in this way the appeal was well within time. In this context, it is expedient to have a recourse to Section 12(5) of The Limitation Act, 1908 which reads as under:- "12. Exclusion of time in legal proceedings.---(1)
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(5) For the purposes of subsections (2), (3) and (4), the time requisite for obtaining a copy of the decree, sentence, order, judgment or award shall be deemed to be the time intervening between the day on which an application for the copy is made and the day actually intimated to the applicant to be the day on which the copy will be ready for delivery."
From the bare reading of sub-section 5 the only inference which can be drawn is that the limitation ordinarily be computed from the date of preparation of the judgment and decree unless the person claiming that the date be counted from the date of delivery of the judgment. In later case it is to be established that the copying agency did not deliver the judgment and decree on the given date and for the said purpose some tangible material is required to be produced on the record for counting the limitation from the date of delivery of judgment. The petitioners though asserted in their application for the condonation of delay that judgment was delivered to them on 30th of August, 2014 but they have failed to bring on record any evidence to this effect that the judgment and decree was not prepared on the given date and the office has not notified the said date for the delivery of the judgment and decree. In such an eventuality the limitation will run from the date of preparation of the copy of judgment and decree. Reference in this respect can be placed on "FATEH MUHAMMAD AND OTHERS versus Malik QADIR BAKHSH" (1975 SCM R 157). The relevant extract from the judgment supra is reproduced below :- "It is well settled that the time requisite for obtaining copy of order within the meaning of section 12 of the Limitation Act, 1908 means only the interval between the date of application for supply of copy and the date when it is ready for delivery. Even during this interval, due diligence on the part of the litigant is required by law, and no delay, unless such as was caused by circumstance over which he had no control and which he could not by due diligence be avoided, can form part of time "requisite" for obtaining the copy. The time between the date on which he the copy is ready for delivery, and the date on which the applicant chooses to take delivery thereof is not a portion of the time "requisite" for obtaining a copy.
The question then is whether the delay be condoned under the provisions of section 5 of the Limitation Act, 1908. In this behalf it would be seen that the order of the High Court having been announced on 8th October 1973, petitioners had sixty days to file this petition, excluding the time requisite for obtaining copy of the order. They are presumed to know that delay of each day, after expiry of the prescribed period of limitation, unless satisfactorily explained, is fatal. They made application for supply of copy on 5th November 1973. By then 28 days had already lapsed. The copy was ready on 13th December 1973, after 39 days, the last date for filing this petition, therefore, was the 15th January 19'4. However, the petitioners received the copy on 26th January 1974 and by then the period of limitation had already expired. This should have been enough warning that no further time is to be lost, and instead of filing the petition immediately thereafter, they did not file it until 25th of February 1974.
There is no explanation for this delay, the petition is, therefore, dismissed as time-barred." The same view was further reiterated by the Hon'ble Apex Court in the cases of "IFTIKHAR ALI versus Sh.
ABDUL RASHID and others" (2003 SCM R 1560), "CHIEF PERSONNEL OFFICER, PAKISTAN RAILWAYS, HEADQUARTERS LAHORE ETC. Versus ANJUM FAROOQ and etc." (PLJ 1997 SC 504), "MUHAMMAD NAWAZ versus ABDUS SALAM and another" (PLJ 1997 SC 539) and "Mst. JAMILA KHATOON AND ANOTHER versus Mst. TAJUNNISA AND OTHERS" (PLD 1984 Supreme Court 208). Even this Court has adopted the said principles in the cases of "GHULAM MUHAMMAD versus Malik ABDUR RASHID and 2 others" (2002 CLC 295). Reference can also be made to the judgments of learned Sindh High Court in the cases of "ARSHAD NASIM versus REGISTRAR OF TRADE MARKS and another" (1986 CLC 2622) and "Qazi SHER MUHAMMAD versus PUNOON and others" (1985 CLC 2611).
7. There is yet another important aspect that the petitioners have not appended the application for the condonation of delay with the instant petition which is clearly negatory to the requirements of Section 115 of The Code of Civil Procedure (V of 1908). The petition is even not maintainable on this score alone. Reference in this respect can be made to "MUHAMMAD ASLAM PERVEZ versus Mst.
WAHEEDA ANWAR and others" (2004 M LD 1682) wherein it is held that :- "6. There is no cavil to the proposition that section 115 of the C.P.C. Has mandated the party filing the civil revision to append all the documents with his civil revision. According to proviso to subsection
(1) of section 115 of the C.P.C. The person who is to file an application under section 115, is duty bound to furnish copies of documents and order of the subordinate Court. By filing of the application bearing C.M. No.943 of 2004/BWP, it has been admitted by the petitioner that he had not produced those documents with the civil revision. This fact has not been denied by the petitioner that these were material documents for decision of the case. Undeniably the C.M. Has been moved after a period of 90 days prescribed for filing of the civil revision. The reason enumerated in the aforesaid C.M. Has used the term of f "inadvertence" only. No other reason has been stated in the aforesaid C.M. How this inadvertence has crept in, no explanation is found in the application. It is settled law that Courts do not use their discretion in favour of an indolent/slothful litigant. These documents were very well in the knowledge of the petitioner as the copy of the statement of the learned counsel for the respondent producing those documents in evidence with trial Court was already appended to the civil revision. Therefore, the ground of inadvertence cannot possibly be attracted to the facts of the case. The person who is coming to the Court and wants to get a discretionary power of section 115, exercised in his favour from the Court must show his bona fides especially when the period of limitation had already expired in filing of the revision with the period of which, these documents were also to be filed by the petitioner. Due to non-filing a vested valuable right has accrued which can be taken away only on the basis of sufficient cause being shown by the petitioner which is lacking in it. Therefore, the civil revision and the application are dismissed with the no order as to costs."
The above proposition was further fortified by this Court in the cases of "FAQEER BAKHSH versus KHAN MUHAMMAD" (2013 M LD 955) and "SALEEM KHAN and others versus PROVINCE OF PUNJAB through District Collector and others" (2013 M LD 1618).
8. The petitioners have failed to point out any illegality or material irregularity in the impugned judgment. I am of the considered view that appeal was rightly dismissed by the learned Additional District Judge being barred by time. The impugned judgment calls for no interference by this Court in exercise of revisional jurisdiction in terms of Section 115 of The Code of Civil Procedure (V of 1908).
9. For what has been discussed above, the instant petition is being without any merits is dismissed in limine. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.