' This is a revision petition by the petitioner against the judgment and decree of the learned Additional District Judge dated 13th March, 1982 who dismissed his appeal as barred by time when his plaint for permanent injunction had been rejected by the trial Court on 11th June, 1981 under Order VII, rule 11, C.P.C.
2. The sole question being argued in this case for the present is the question of limitation which was decided by the learned Additional District Judge.
3. The learned counsel appearing in support of this revision petition states that the finding of the learned Additional District Judge that the appeal was beyond limitation is not correct. He elaborates that the judgment and decree was passed by the trial Court on 11th June, 1981. The copies were applied for on 24th June, 1981. The copies were made ready on 4th November, 1981 and the appeal was filed on 20th December, 1981. The learned counsel for the petitioner concedes that on the aforementioned date that he has supplied the appeal was admittedly beyond time.
4. However, he submits that the time spent in pursuing review proceedings before the trial Court was to Le taken into consideration and due allowance given to the petitioner by the learned Additional District Judge. He submits that against the judgment and decree of the trial Court dated 11th June, 1981 the petitioner filed a review application on 4th July, 1981 which was dismissed on 19th November, 1981. The learned counsel's grievance is that the learned Additional District Judge had not taken into account the application under section 5 of the Limitation Act which duly took note of the review proceedings for extension of time. The learned counsel in support of his submission relies on the decision of the Supreme Court In re: Shah Muhammad v. Ghulam and another for the legal proposition that time spent by a party in obtaining review of the judgment and decree is to1 be allowed. I have respectfully perused the precedent case which does not really help the petitioner. His appeal would be time barred even if the time spent by the Court in disposing of review application presented within time is added to the period of limitation provided for an appeal as laid down in the above dictum.
5. The learned counsel for the respondents in reply submits that even if the concession is made in favour of the petitioner to obtain this allowance, the appeal was still beyond limitation by 12 days and therefore on no conceivable principle any interference is warranted and justified with the impugned judgment and decree of the appellate Court. The learned counsel for the respondent Ch.Ihsan-ul-Haq submits that the appeal was filed after a period of 191 days. The time consumed in the review was 139 days and to this may be added 10 days which was a time requisite for obtaining the copies of the judgment and decree. Thus, the total allowance admissible to the petitioner would be 139 plus 10 days equal to 149 days when added to the period of appeal which is 30 days under Article 152 of the Limitation Act. In this view of the matter also, the appeal was beyond time by 12 days. This delay according to him was clearly based on negligence and thus was rightly refused to be condoned by the appellate Court.
6. The learned counsel for the petitioner caught up in this quandary then submitted that his client may be given the benefit of even the time requisite for obtaining the copy of judgment in review.
He says that 13 days were spent in obtaining the copy. I am afraid, the plea raised by the learned counsel for double benefit is not substainable. Time was to be allowed to the petitioner which was requisite for obtaining the certified copies of the judgment and decree of the trial Court and in addition thereto the period actually spent in pursuing the review proceedings. The judgment and decree in review was not appealable and therefore for the purpose of appeal no allowance could be given to him for that. The learned counsel however adds that at least that order was revisable.
The argument cannot advance the case of the petitioner any further because it is not his case that he had prayed for converting the appeal into a revision because the scheme of the law is quite clear that a revision is competent only where an appeal does not lie. The argument therefore, is more imaginary than real.
8. The learned counsel for the petitioner next submitted relying on the judgment of the Supreme Court in re: Manager, Jammu and Kashmir State Property in Pakistan v. Khuda yar and another that in the present case grave miscarriage of justice has taken place and therefore, the High Court should take up the matter in suo motu revision to do substantial justice while ignoring the technicalities which otherwise created insurmountable hurdles for the petitioner. The precedent case is distinguishable.
9. The question here involved is that of limitation which goes to the competency of the appeal. It is not a matter of mere technicality but of compliance with substantive provision of law. A party which has been delinquent in pursuing his remedy at law cannot turn around and complain to the High Court that miscarriage of justice has taken place specially when the results achieved are based on acts of omission and commission of the party itself. The Court has to keep in view the position of both the parties and cannot act on the mere persuasion of one side.
10. I really am unable to appreciate the anxiety of the learned counsel for the petitioner in view of the fact that plaint has been rejected under Order VII, rule 11, C.P.C. By virtue of rule 13, when a plaint is rejected under Order VII, rule 11, on any of the grounds mentioned in the provision, it does not preclude the plaintiff from presenting a fresh plaint in respect of same cause of action provided the period of limitation is available. The learned counsel complains that there are certain observations made in the impugned judgment of the trial Court which tend to prejudice the case of the petitioner which amounted to findings on merits. I must observe that no observation made by a Court while rejecting a plaint under Order VII, rule 11. C.P.C. On grounds listed, therein is going to2 affect the fate of the subsequent plaint or suit on merits. The learned counsel for the respondents also consents to this observation.
11. In view of the observation made above, the learned counsel for the petitioner as well as the respondents feel satisfied with the judgment rendered. The revision petition accordingly stands dismissed. There shall however be no order as to costs. P L 1970 SC 196 PLD 1975 SC 678