MUHAMMAD NAEEM ANW AR, J.---Through this Civil Revision under Section 115 of Civil Procedure Code, 1908, the petitioner has questioned the validity and correctness of judgment and decree of learned Additional District Judge-VI, Mardan, dated 17.10.2018, whereby the appeal filed by him was dismissed.
2. Facts of the case, in brief, are that, Mst. Hashmat Sultan had filed a suit seeking declaration that she being daughter/legal heirs of Haji Fazal Raziq is owner of shops, measuring 32 sq. yard, constructed in Khasra No. 1151 vide extract from the record of rights for the year, 1980-81 of the Estate of Abadi, District Mardan, thus, Tamleeq Mutation No.1671 dated 21.02.1990 is wrong, against the facts, unjust, based on fraud and mala fide, therefore, inoperative upon her rights. The suit was decree dex-parte against defendants/respondents Nos. 1 to 3 on 07.3.2015. Respondent No.1 assailed the ex-parte decree by Civil Appeal No.10/13 of 2017 and the same was allowed by the learned Appellate court on 15/05/2017 and the case was remanded to the learned trial court for deciding the same after recording the pro and contra evidence in accordance with law .
3. After remand, learned trial court has fixed the case for arguments on maintainab ility and limitation. After hearing both the parties, learned trial court vide judgment and order dated 14.02.2018 rejected the plaint under Order VII, Rule 11, C.P.C. Before the learned trial court, after remand, the plaintif f, Hashmat Sultan, had passed away and her legal heirs Muhammad Shoaib (husband), Mst. Nabeela, Mst. Asia, Mst. Mariam (daughters) and Haji Fazal Ghani (brother), were impleaded, however , after rejection of the plaint, the appeal was filed only by Fazal Ghani, whereas rest of the legal heirs were neither implea ded as appellants nor respondents. The appeal filed by Fazal Ghani, the present petitioner , was dismissed by the learned Appellate Court vide its judgment and decree on 17.10.2018, hence, this petition.
4. Arguments of the learned counsel for the parties heard and the record of this petition as well as of earlier suits being requisitioned, was gone through.
5. During pendency of this revision, record of Suit No.57/1 dated 23.4.2003 was requisitioned, which enunciates that Haji Fazal Ghani, the present petitioner had filed a suit against Fazal Ahad, Fazal-e-W ahid sons of Fazal-e- Kareem, Mst. Hashmat Sultan (daughter) and Mst. Qamar Sultan (widow) and Fazal Akbar (son) of Haji Fazal-e- Raziq seeking declaration that he and Mst. Hashmat Sultan along with another are the owners of Shops measuring 32 sq. yards of Khasra No. 1151 of the Estate of Abadi,District Mardan and Mutation No. 1671 dated 21.02.1990 vide which the disputed shop was gifted by Haji Fazal-e-Raziq in favour of the defendants Nos.1 to 3 (sons of Fazal-e-Kareem) is wrong, against the facts and was the result of fraud and collusion with officials of revenue hierarchy . It was also asserted that Fazal Kareem son of Fazal-e-Raziq has pre-deceased his father and as such, his sons, defendants Nos.,1 to 3 were not entitled in the legacy of Fazal-e-Raziq. In order to understand the controversy , the pedigree table is as under; {{IMAGE TEXT}} The said suit was properly contested by respondents Nos. 1 to 3, however , during pendency of the suit, they have filed an application under Order VII, Rule 11, C.P.C. and vide order dated 24.3.2004, on acceptance of application, plaint was rejected, however , the then plaintif fs had not preferred an appeal. When the suit No.179/1 was instituted by Mst. Hashmat Sultan, she was represented by one Zulfiqar son of Jamshed as Special Attorney and after the death of Mst. Hashmat Sultan, the present petitioner had appointed Zulfiqar son of Jamshed as his Special Attorney . Though, the earlier suit was not decreed on merits, however , the subject matter , the parties and relief of both the suits are same. Likewise, when the suit of present petitioner was rejected on 24.3.2004, he has not filed an appeal coupled with the fact that Mst. Hashmat Sultan, sister of present petitioner was survived by her husband and daughters but none of them had either filed an appeal or present petition. Similarly, they were not impleaded as party by present petitioner as respondents or petitioners. Whatever it may be, in such circumstances, the appeal filed by present petitioner w AS not comp etent and similarly , this petition is also not maintainable on this score only that legal heirs of Mst.Hashmat Sultan were not arrayed as party despite of the fact that they were party before the trial court. Wisdom was drawn from the principle of law enunciated in case of "Mst. Maqbool Begum and others v. Gullan and others" (PLD 1982 SC 46) wherein it was held that; " In our opinion this was a clear case of an incompetent and not maintainable appeal due to non impleadment of necessary parties, and as the subject-matter of the dispute, namely the impugned sale of year 1951 in favour of Muhammad Yaqub (vendee / defendant) (now represented by some of his legal representatives namely the petitioner s) was an indivisible transaction, therefore, the High Court was justified in holding that the appeal had abated in toto and was not maintainable for the fatal infirmity hereinbefore mentioned. It was argued that if some of the heirs of the vende e had not been impleaded, at the most it could affect only the shares of the non-impleaded heirs in as much as according to Muhammadan Law every heir succeeds only to the extent of his respective share along with others though as tenants in common. The contention has no merit in as much as the presen t case is to be examined from the point of view of the oneness of the sale above-mentioned and not parts of that sale which was to stand or fall as a whole."
While considering the non impleadment of necessary party in appeal, Lahore High Court in case titled "Subeh Sadiq v . Mst. Rajan through legal heirs and others" (PLD 2006 Lahore 585 ) has held that; "In the petition (C. R. No.184/ 2005) filed by Subeh Sadiq, Rakhsana Shaheen has not been impleaded as party whereas in the revision petition (C. R. No.2367/ 2005) filed by legal representatives of Mst. Rajan, Subeh Sadiq has not been impleaded as party . This itself being a fatal defect would have entailed dismissal of both the revision petitions. Moreover , another defect noticeable is that before the lower appella te Court even similar position prevailed. The learned counsel for the petitioners in both the petition could not advance any convincing explanation for not impleading necessary parties either in appeal or in revision petitions here. Thus even appeal before the lower appellate Court were not competent in absence of the necessary parties. In Muhammad Suleman v. Abdul Rashid and 13 others (PLD 1987 Lahore 387) such a defect was considered to be, fatal for the maintenance of appeal/revision."
In such like situation in the case of "Ali Muhammad Jan through Legal Heirs v. Mst. Surriya Begum and 6 others reported as (2011 YLR 1559 ) had held that; "Respondent No. 7 Mst. Laraib Sana is daughter of Islamuddin and equal ly necessary party like other respondents but she was not implead ed as necessary party after period of limitation which renders the appeal incompetent and is fatal. Reliance is placed on 2001 MLD 1964 , PLD 1988 Supreme Court (AJ&K)
156 and PLD 1982 Supreme Court 46. The appeal to the extent of respondent No. 7, is not only time-barred but have also rendered the appeal incompetent."
6. Another equal significant aspect of this petition, as appears from record that during pendency of appeal the petitioner pretended himself to be the Attorney of Mst. Hashmat Sultan and submitted an application for setting aside of ex-parte proceedings against her, but when pointed out by the appellant that Mst. Hashmat Sultan had died then petitioner straightaway resiled from his application so submitted by him, however , the learned Appellate Court summoned Mr. Abdul Hameed Khan Advocate, who attested the affidavit of petitioner thereupon criminal proceedings were initiated against the present petitioners. This conduct of the petitioner indicates his interest in the property that when he could not file appeal against the rejection of his suit then he intended to get the desired relief through indirect way by institution of suit No.179/I by his sister , in the year 2010, when his own suit was decided on 24.3.2004. Thus, this suit was barred by time in accordance with Article 120 of the Limitation Act, 1908, especially when none of the legal heirs opted to be a party of this revision and appeal.
7. In addition to the above, learned Appellate Court has dismissed the appeal on 17.10.2018, and for obtaining attested copies, the petitioner has submitted the application on 25.10.2018 and the copies were prepared on 15.11.2018, whereas, the petition in hand was filed on 25.02.2019, thereafter , therefore, after excluding the period for obtaining the copies as provided by section 12(2) of Limitation Act, 1908, this petition was filed on 109th day, which was to be filed within the period of 90 days as provided in second proviso of section 115 of C.P.C., 1908, which read as; "Provided that such application shall be made within 90 days of the decision of the subordinate Court which shall provide a copy of such decision within 3 days thereof and the High Court shall dispose of such application within six months."
When the copies were prepared for delivery on 15.11.2018 for which the petitioner applied on 25.10.2018 so the time shall run from the date when the copies were prepared for delivery and not the date when petitioner opted to get the copies within the meaning of section 12 of the Limitation Act, 1908. The apex Court in a case titled "Fateh Muhammad and others v . Malik Qadir Bakhsh and others" (1975 SCMR 157 ) held that; "In view of the apex Court, it is a settle d position 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 and 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 the litigant had no control and which could not by due diligence be avoided, can form part of time "requisite" for obtaining the copy ."
As the copies were prepared on 15.11.2018, therefore, it was for the petitioner to get the attested copies and file the petition within the period but as the petition was not filed within the prescribed period, as such, the same was not maintainable. Similarly , the petitioner has not filed any application under section 5 of Limitation' Act, 1908 for Condonation of Delay .
8. For the reason discuss above, this petition is hereby dismissed being without substance.