' ABDUL LATIF KHAN, J.--- Zamurad Khan and (18) others/petitioners have filed this application under section 12(2), C.P.C. For setting aside judgment and decree passed by this Court dated 10.6.2002 in Civil Revision No,1 of 1995 by alleging that the same had been obtained on the basis of fraud, collusion and mis-representation etc.
2. Short facts of the case are that the respondents/plaintiffs instituted a suit for declaration and possession regarding property, fully described in heading of the plaint against the petitioners and proforma defendants. The proforma defendants contested the suit by filing written statement and the learned trial court after framing of issues, recording pro and contra evidence and hearing the parties, decreed the suit of the plaintiffs/respondents, vide judgment and decree 25.4.1993. The proforma defendants filed an appeal, which was accepted by learned District Judge, vide judgment dated 27.9.1994, set aside the judgment and decree of trial court and suit of the plaintiffs was dismissed. The plaintiffs/respondents filed Civil Revision No,1/1995, which, after contest, was allowed on 10.6.2002 by this Court, whereby judgment and decree of appellate Court was set-aside and that of trial court stood restored. The respondents/plaintiffs tiled execution petition in which petitioners appeared and contested the same by filing objection petition, which was dismissed on 22.7.2006. The petitioners filed revision petition but the same was withdrawn on 6.1.2009, hence, the present application under section 12(2), C.P.C. On 13.5.1999.
3. Arguments of learned counsel for parties heard and record perused.
4. A perusal of record would reveal that the plaintiffs/respondents instituted a suit for declaration and possession on 13.9.1975, which after contest, was decreed by the trial court on 25.4.1993. It is also on record that the proforma defendants preferred an appeal, which was accepted, the judgment and decree of trial court was set aside and suit of the plaintiffs was dismissed but this Court on hearing. Revision Petition No, 01 of 1995, set aside the judgment and decree of appellate court and restored that of the trial court on 10.6.2002. The respondents filed execution petition for satisfaction of decree and the petitioners moved the objection petition, which was dismissed on 22.7.2006. The petitioners then preferred revision petition, which was also withdrawn on 6.1.2009 and ultimately the petitioners have filed the instant application under section 12(2), C.P.C. In essence, the instant application has been filed after lapse of about three years, eight months and seven days, as such, is hopelessly barred by time.
5. The learned counsel for the respondents raised a preliminary objection that they had purchased the property in year, 1991, whereas the suit had been instituted in year, 1975, which too, admittedly, during the pendency of the suit, and under the principle of its pendens under section 52. Of the Transfer of Property Act, the rights of the plaintiffs would not be affected from the transaction allegedly made during the pendency of the suit. It was the duty of the petitioners to get them impleaded in the suit proceedings after acquiring of the property through purchase. The plea of the petitioners to the extent that they raised construction over the property, is also misplaced for the simple reason that without ascertaining the actual position/ ownership and after reasonable care and caution, the petitioners were supposed to purchase the property. The petitioners had to go a step ahead from the revenue record in order to enquire the actual ownership of the vendors and also to get themselves acquainted with the fact about the pendency of the suit but they have not taken any serious effort and the alleged construction is not evident from the evidence available before the Court. As neither spot inspection has been made nor any effort has been made to this effect.
6. The sole controversy revolves around limitation. Article 181 of the Limitation Act, 1908, being a residuary article provides three years period for filing of such like applications where a right exists to make an application but here in the instant case it is pertinent to mention that the petitioners have moved the instant application after three years, eight months and seven days and that too, without any reasonable justification, sufficient cause or showing due diligence in prosecuting the same cause in good faith before wrong forum.
7. The petitioners remained busy before wrong forum without any justification and have filed the instant application against the impugned judgment after about seven years of the passing of the decree. The main focus of the counsel for the petitioners is that they were not arrayed as defendants to the proceedings is without force for the simple reason that at the time of institution of the suit they had not purchased the property and did so during the pendency of the suit and, therefore, it was obligatory upon the petitioners to pray for their impleadment as party and for this purpose the plaintiffs of the main suit could not be penalized. Since the petitioners admittedly purchased the property during the pendency of the suit and allegedly raised construction on it, therefore, prima facie, it can safely be presumed that they had the knowledge of the pendency of the suit and they intentionally not applied for their impleadment soon after their purchase and, as such, they abstained themselves from taking part in the suit proceedings, which ultimately after prolong and hectic contest was decreed in favour of the respondents.
' It would also be appropriate to reproduce the relevant sections 5 and 14 of the Limitation Act for ready reference and sake of convenience:-- "5. Extension of period in certain cases. Any appeal or application for a revision or a review or judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed, therefore, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.
"14. Exclusion of time of proceedings bona fide in Court without, jurisdiction. (1) In computing the period of limitation prescribed for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation prescribed for any application the time during which the application 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 party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in court which, from defect of jurisdiction, or other cause of a like nature is unable to entertain it."
A look of these sections, would lead to conclusion that time spent in pursuing the proceedings before wrong forum would not be excluded and to invoke the provision of section 5 of the Act, ibid, sufficient cause has to be shown which means circumstances beyond control of party, in case appeal is barred by time and cannot be readily available to the appellant, as the conditions precedent in Section 14 and Section 5 are different and cannot be equated. The powers of Court under Section 5 are discretionary in nature; whereas, exclusion of time under section 14 is mandatory and that too subject to conditions of "Good faith" and "due diligence". The apex Court in case of Dr. Syed Sibtain Raza Naqvi v. Hydrocarbon Development and others" (2012 SCMR 377) observed that exclusion of time spent before wrong forum could not be excluded for the purpose of filing an appeal, and for guidance the relevant observations are reproduced as under:- "(8) On perusal of section 14 of the Act, it appears that time spent in pursuing the proceedings before wrong appellate forum, cannot be excluded, for the purposes of filing of an appeal and in case appeal is barred by time the provision of Section 5 of the Act can only be invoked, that too, by showing the sufficient cause.
(9) The two expressions "due diligence" and "good faith" in section 14 do not occur in section 5 of the Act which enjoins only "sufficient cause". The expression "due diligence" and "good faith" used in section 14 of the Act cannot be equated with the expression of "sufficient cause" used in section 5 of the Act. If it were so, the Legislature could have used identical expressions in both sections particularly when "good faith" has been defined in section 2(7) of the Act. The power to condone the delay and grant an extension of time under section 5 of the Act is discretionary, whereas under section 14 of the Act, exclusion of time is mandatory on the satisfaction of the condition prescribed in it.
(10) The principle that appeal is continuity of original proceeding before the appellate Court, as held in the cases of Sherin v. Fazal Muhammad (1995 SCM R 584) and Tasneem Ismail v. Wafi Associates (2007 SCM R 1464), is of no help to the petitioner. The law of limitation takes away the rights of parties, the same must be construed liberally, but without any violation to the intent of legislature. Limitation Act is to be read as a whole and its provisions are to be construed harmoniously.
(11) On reading Section 14 of the Act along with section 2(10), it appears that legislature specifically excluded the appeal or an application from the purview of "Suit". We left no doubt in our mind that benefit of section 14 of the Act cannot be extended to exclude the time consumed in prosecuting an appeal before wrong forum having no jurisdiction, for the purposes of filing an appeal Before a forum having jurisdiction."
8. Although no specific Article in the Limitation Act has been provided wherein limitation prescribed for filing of an application under section 12(2) C.P.C., however, period of three years has been provided under Article 181 of the Act and keeping in view the facts and circumstances of the instant case, there appear no reasonable sufficient cause for not preferring the application before the proper forum but having persecuted the same with due diligence or in good faith before wrong forum and in such eventuality the petitioners have to suffer and the instant petition is found hopelessly barred by time. Wisdom is sought from the case of Sarfraz v. Muhammad Aslam Khan and another (2001 SCMR 1063) wherein it has been observed that aggrieved person is required to initiate proceedings within reasonable time against a void order and after lapse of considerable time when the order/decree under attack in fact has achieved finality, the jurisdiction of court cannot be invoked.
9. Consequently, the application being without substance is dismissed with no order as to costs.