KAMRAN HAYAT MIANKHEL, J. This revision petition is directed against the judgment and decree dated 11.06.2019 passed by the learned District Judge, Battagram, whereby petitioner's appeal filed against the judgment and decree dated 19.09.2018 of Civil Judge-I, Battagram was dismissed.
2. Briefly facts of the case are that petitioner / plaintiff filed a civil suit against the respondents / defendants for recovery of mesne profit amounting to Rs.19,70,000/ or whatever amount is determined by the court in respect of suit KhasraNos.2411, 2409, 2408 measuring 26 kanals 03 marlas situated at MauzaPirhari Tehsil and District Battagram to the extent of share of petitioner against respondents. The petitioner also sought possession of suit property and permanent injunction by restraining the respondents from interference in the suit property. Respondents No.2, 4 to 8 / defendants No.1, 4 to 8 appeared before the learned trial court and contested the suit by filing their written statement. From divergent pleadings of parties, learned trial court framed the following issues:
1. Whether plaintiff has got a cause of action?
2. Whether the suit is within time?
3. Whether this court has got jurisdiction?
4. Whether plaintiff is entitled to mesne profits as prayed Alif of the plaint on account of illegal dispossession from the suit property?
5. Whether plaintiff is entitled to the physical possession of the suit property to the extent of 1/3 shares on account of private partition?
6. Relief.
The parties were directed to adduce their respective evidence. After closing of evidence and hearing arguments of learned counsel for the parties, the learned trial court dismissed the suit vide judgment and decree dated 19.09.2018. Dissatisfied with the same, petitioner preferred an appeal before the learned District Judge, Battagram, which was dismissed vide judgment and decree dated 11.06.2019, hence, this revision petition.
3. Learned counsel for the petitioners argued that situation on the ground is not what is depicted in the revenue record and the passage belongs to petitioners and the respondents have got no concern with it. He also argued that even otherwise, the respondents have not constructed/obstructed the way.
4. Arguments heard and record perused.
5. Perusal of the record reflects that petitioner/plaintiff filed a civil suit against the respondents/defendants, which was dismissed vide judgment and decree dated 19.09.2018 by the learned trial court after full dressed trial. Not contented with the same, he preferred an appeal before the learned appellate court, which was also dismissed vide judgment and decree dated 11.06.2019. Dissatisfied from the judgment and decree of learned appeal court, the present petitioner filed writ petition before this court on 04.10.2019. On 28.10.2019 pre-admission notice was issued to the respondents and on 18.02.2021 during course of arguments, learned counsel for petitioner requested to withdraw the constitutional petition with permission to file revision before this court. The request of learned counsel for petitioner was acceded to subject to all legal and valid objections from other side. Thereafter the petitioner filed the instant revision petition before this court on 10.04.2021 alongwith application for condonation of delay.
6. The available record depicts that learned District Judge, Battagram dismissed appeal of petitioner on 11.06.2019. Thereafter petitioner applied for certified copies on 19.09.2019 and obtained the same on the said date. Thereafter he filed constitutional petition before this court on 04.10.2019 which was dismissed as withdrawn on 18.02.2021 with permission to file revision petition. The record further depicts that petitioner presented application for attested copy of order of this court on 24.02.2021 and the same was given to him on the same date i.e. 24.02.2021 but he filed the instant revision petition on 10.04.2021 with delay of more than one month. The appeal of the petitioner was dismissed vide judgment and decree dated 11.06.2019 and he filed the writ petition on 04.10.2019, which was beyond the period of limitation as provided under section 115 CPC. The petitioner filed the revision petition with the delay of 03 months and 23 days, whereas the limitation provided under section 115 CPC is 90 days. This conduct of the petitioner shows that to cover up the delay, he firstly filed constitutional petition before this court which was lateron withdrawn vide order dated 18.02.2021 with permission to file revision petition and request of the petitioner was granted subject to all legal and valid objections.
7. Now the question before this court is whether section 5 of the Limitation Act, 1908 is applicable where the limitation is provided by the special law. Section 115 of CPC which deals with the civil revisions provides its own limitation which is 90 days from the decision of the subordinate court and similarly the High Court has the power to suo-moto call for record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity, then no limitation is provided in such eventuality and such suo-moto exercise can be taken by the High Court at any time.
8. Section 29 of the Limitation Act, 1908 is reproduced below for ready reference: "29. Savings.
[(1) Nothing in this Act shall affect section 25 of the Contract Act, 1872 (IX of 1872).
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law-
(a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and
(b) the remaining provisions of this Act shall not apply.] [(3)] Nothing in this Act shall apply to suits under the Divorce Act (IV of 1869).
[(4)] Sections 26 and 27 and the definition of "easement" in section 2 shall not apply to cases arising in territories to which the Easements Act, 1882 (V of 1882), may for the time being extend."
The scrutiny of section 29 reveals that where period of limitation has been prescribed in the special law such as section 115 CPC for filing of revision petition, therefore, being a special law for the purpose of limitation as it provides its own limitation so section 5 Limitation Act has no applicability.
Section 29 subsection 2 provides exceptions about applicability of Limitation Act and stipulates that Limitation Act shall not be applicable except section 4, sections 9 to 18 and section 22of Limitation Act. So the applicability of section 5 of the Limitation Act (condonation of delay) is out of question and, therefore, not applicable to the revision petition.
9. This clear provision of law has further elaborated in the case law which is summarized in case of "Allah Dino and another vs. Muhammad Shah and others" reported as 2001 SCMR 286 by holding that: "There is no cavil with the argument that if the Statute governing the proceedings does not prescribe period of limitation, the proceedings instituted thereunder shall be controlled by the Limitation Act as a Whole. But where the law under which proceedings have been launched prescribes itself a period of limitation like under section 115, C.P.C. then benefit of section 5 of the Limitation Act cannot be availed unless it has been made applicable as per section 29(2) of the Limitation Act."
10. In the latest judgment of the apex court in case of "City District Government, Lahore through District Coordination Officer, Lahore vs. Mian Muhammad Saeed Amin" reported as 2006 SCMR 676, it was conclusively held that provision of section 5 of the Limitation Act were not applicable to proceedings under section 115 CPC. It is pertinent to mention here that in judicial system the law of limitation has got its own significance relating to the period prescribed for instituting the proceedings. The Limitation Act contains in its fold remedial provisions like section 5, 12 and 14, which empowers the court to enlarge the period of limitation in peculiar circumstances of each case, provided these provisions have been specifically made applicable on the proceedings and in the absence of its application, the courts at its own shall not be competent to make applicable the provision of these sections. In this behalf it is noted that under CPC, there are several provisions where Limitation Act has expressly been made applicable to condone the delay in filing the proceedings if sufficient cause exists in favour of the party who seeks the condonation of delay but Limitation Act has not been made applicable in accordance to section 29 of the Limitation Act on the revision petition under section 115 CPC as it is special law for the purpose of limitation, providing its own limitation. It is by now settled principle of law that delay of each day must properly and satisfactorily be explained and no such flimsy grounds that matter was delayed because it has passed through the hands of different officials due to which sufficient time was consumed would be tenable in the eye of law.
11. The application for condonation of delay does not reveal any plausible cause and petitioner failed to make out his case of gross miscarriage of justice so as to compel this court to exercise its supervisory revisional jurisdiction irrespective of time of 90 days. In 2007 YLR 1781 it is held as under: "The perusal of the above-amendment contemplates that an application under section 115, C.P.C. shall be made within 90 days of the decision of the subordinate Court. Prior to the above- amendment, no statutory period was prescribed by the law for filing of the 'revisions but the superior Courts had always insisted that ordinarily such proceeding should be instituted within the period of 90 days. It is pertinent to mention here that in the judicial system the law of limitation has got its own significance relating to the period prescribed for instituting the proceedings. The Limitation Act contains in its fold remedial provisions like sections 5, 12 and 14, which empowers the Courts to enlarge the period of limitation in peculiar circumstances of each case, provided these provisions have been specifically made applicable on the proceedings and in the absence of its application the Court at its own shall not be competent to make applicable the provisions of these sections. In this behalf it is noticed that the under C.P.C. there are various provisions where section 5 of the Limitation Act has expressly been made applicable to condone the delay in filing the proceedings if sufficient cause exists in favour of the party who seeks the condonation of delay. But this section of the Limitation Act has not been made applicable in accordance to section 29 of the Limitation Act, on the revision under section 115, C.P.C."
12. The law of limitation was a statute of repose, designed to quieten title and to bar stale and water-logged disputes and was to be strictly complied with. Statutes of limitation by their very nature were strict and inflexible. Law of limitation does not confer a right; it only regulates the rights of the parties. Such a regulatory enactment could not be allowed to extinguish vested rights or curtail remedies, unless all the conditions for extinguishment of rights and curtailment of remedies were fully complied with letter and spirit. There was no scope in law of limitation for any equitable or ethical construction. Justice, equity and good conscience did not override the law of limitation.
Object of law of limitation was to prevent stale demands and so it ought to be construed strictly.
13. For what has been discussed above, this court reach to the conclusion that as section 115 of CPC provides its own limitation of 90 days then for law of limitation as per section 29 it is a special provision and does not fall under the exceptions as provided by section 29 of the Limitation Act, so section 5 of the Limitation Act (condonation of delay) is not applicable to the civil revision petitions.
So this case being badly time barred is hereby dismissed in limine.