' This writ petition has been filed to call in question the refusal of the learned District Judge, Vehari, to interfere in revisional jurisdiction under section 115, C. P. C. On the view that the mandatory requirements of Order XLIII, rules 3 and 4, C. P. C. Had not been complied with by the petitioner before filing the revision petition.
2. The brief facts are that the petitioner filed a suit to pre-empt a sale before a civil Court at Vehari which was resisted by the vendee of the land, respondent No,
3. The case was fixed for 28th June, 1983 on which date defendant-respondent No, 3 was to adduce his evidence but strangely the trial Court on that date instead ordered closing of the evidence of the petitioner.
3. In the above circumstances, the petitioner on 2nd July, 1983 filed a revision under section 115, C. P.
C. Against the order of trial Court, dated 28th June, 1983 1. e. On the fourth day of the passing of the impugned order. On 5th July, 1983, the revision petition after crossing limine stage appears to have been entertained to a regular hearing and stay order issued with notice to the respondent.
However, the learned District Judge, Vehari, after about six months of entertaining the revision dismissed it on 17th January, 1984 after hearing both sides. The learned District Judge was of the view that revision petition was not competent as no notice was given to respondent No, 3 in compliance of requirements of newly-added rules 3 and 4 of Order XLIII of the Civil Procedure Code.
4. The petitioner when confronted with the above position filed a fresh revision petition under section 115, C. P. C. On 22nd January, 1984 after complying with the provisions of Order XLIII, rules 3 and 4 but this was dismissed on 16th February, 1984 after holding it to be time-barred.
5. Hence this writ petition to assail the validity of both of the aforementioned orders of the learned District Judge, Vehari, dated 17th January, 1984 and 16th February, 1984. The respondents despite service did not appear and were ordered ex parte on 11th April, 1984.
6. The learned counsel for the petitioner submitted that the learned District Judge failed to exercise jurisdiction vested in him by law on a pa tent misreading of the legal provisions relied upon by him i. e. Order XLIII, rules 3 and 4 which governed the appellate proceedings covered by that Order. The provisions, according to the learned counsel, could not have been extended by the learned District Judge to revisions under section 115, C. P. C. Contrary to legislative intent and in so doing he failed to appreciate the broad difference between an appeal and revision. It was further submitted that had the learned District Judge cared to carefully peruse and understand the decision of the Supreme Court cited by him PLD 1983 SC 693 it would have dawned upon him that the view he was adopting was not sanctioned by the cited precedent and rather supported the petitioner's contention that these requirements did not stricto senso govern revisional proceedings.
7. After giving very deep consideration to the submissions made at the hearing by the learned counsel for the petitioner, I have reached the conclusion that the learned District Judge failed to exercise jurisdiction vested in him by law on a patent misapplication of the law and thus the petitioner has made out a case for interference of this Court in Constitutional jurisdiction.
8. It must be observed that rules 3 and 4 were added to Order XLIII through amending Ordinance X of 1980. These newly-added rules read as under :- Notice before presentation of appeal.-(1) Where an appeal against an order is preferred during the pendency of a suit, the appellant shall, before presenting the appeal, give notice of such appeal to the respondent or his Advocate by delivering a copy of the memorandum and grounds of appeal alongwith a copy of the order appealed against and obtain an acknowledgement of receipt thereof for the information of the Appellate Court.
(2) On receipt of notice referred to in sub-rule (1), the respondent may, with the permission of the Court, appear before it and contest the appeal and may be awarded costs on dismissal of the appeal in limine.
(4) Application of rule 3.-The provisions of rule 3 shall, =tails mutandis, apply to all applications filed before an Appellate Court during the pendency of a suit."
' The above-quoted- rules were considered by the learned Supreme Court In re : Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin (1). It was held by the Supreme Court that by virtue of Order XLIII, rule 3, a party preferring an appeal against an order made during the pendency of the suit must give notice of such appeal to the respondent or his Advocate before presenting appeal by delivering a copy of the memorandum and grounds of appeal alongwith a copy of the order appealed against. The purpose of this provision was held to be to avoid the delay that is occasioned in issuance of notices to (1)PLD 1983 SC 693 ' and having service effected on the respondent in a case where the main suit is still pending adjudication and only the legality or correctness of some interlocutory order is under question. To quote from the judgment :- "Hence intimation to the respondent of the fact that an appeal is being preferred and on the grounds on which this is being done, to avoid taking him by any surprise, has been prescribed as a condition precedent to the entertainability of the appeal."
' It has been further laid down that sub-rule (2) of rule 3 entitled a respondent to appear, with the permission of the Court before it, and contest the appeal with a view of getting it dismissed in limine, and in case of his success may be awarded costs. It has been further laid down that an appeal which is not accompanied by an affidavit of service and copy of acknowledgement receipt obtained from the respondent or his counsel should not be entertained.
' A careful perusal of the above decision of the Supreme Court would show that the above-referred rules (3) and (4) have been duly noticed and thereafter they were held to govern appeals preferred under Order XLIII read with section 104, C. P. C. No words are to be found in the citedt4 precedent extending the application of these rules to revisions covered by section 1,5, C, P. C.
Indeed, the concepts of an appeal and a revision are different and one B cannot be confused or equated with the other, as visualised by the Code of Civil Procedure. The Supreme Court in the case of Alaf Din v. Mst. Perveen Akhtar (1) held that a revision is not like an appeal a continuation of the original proceedings. Commenting upon the nature of revisional jurisdiction under section 115 of the C. P. C., the Supreme Court in its decision reported as Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another (2) held this to be analogous to writ jurisdiction of the High Courts, and in fact the revisional jurisdiction is wider because it can be exercised suo motu and the Court is empowered to pass such orders as it thinks fit. Earlier in the case of Tahir Ali and others v. Chief Judge, Karachi Small Causes Court and another (3) the full Court observed :- "It is true that under the Code of Civil Procedure a distinction has been made between a "revision petition" and "an appeal". Under section 115 of the Code of Civil Procedure a revision petition only lies where an appeal does not lie ...
' A little later in the judgment, it was again held :- "Thus, the revision provided under the said subsection has all the characteristics of an appeal. In other words, the revisional power under this Act is not subject to any specified restrictions like those mentioned in section 115, C. P. C. It is, therefore, clear that the word 'revision' in this Act has not been used in the same sense as what is technically known as a revision under section 115 of Code of Civil Procedure."
9. The other distinctive features between an appeal and revision are manifold but it should suffice to list a few more, such as an appeal is al matter inter-parties in respect to the matters on which they differ whereas)
(1) PLD 1970 SC 75 (2) PLD 1963 SC 147
(3) PLD 1975 SC 678 ' revision is a matter between a superior Court and its subordinate Court regarding the manner of exercise of jurisdiction. This Court has already brought out the distinction between the two jurisdictions and remedies when observing in re : Mrs. Perveen v. Kh. Muhammad Ashar (1) that to move a Court in revision is merely a privilege granted to a party in distinction to the substantive right of appeal. Here, I must also refer to the ' decision of the learned Supreme Court in re : Municipal Committee, Bahawalpur v. Sh. Aziz Elahi (2) wherein meanings of "appeal" occurring in section 115, C. P. C. Have been construed after exhaustive analysis of case-law in the Indo-Pakistan Sub-Continent. It was, inter alia, held that words "in which no appeal lies thereto" when properly construed would not only mean the direct appeal to the High Court, but also include a second appeal after taking appeal before the District Judge.
10. A careful reading of section 115, C. P. C. In itself brings about the distinction and difference between a revision and an appeal. If they were equitable terms or one and the same thing then the pivotal words occurring in section 115, C. P. C. "in which no appeal lies thereto" would be rendered nugatory and meaningless. The Court while construing a provision would not adopt any interpretation which renders meaningful words employed by the Legislature in a statute as redundant or surplusage.
The precedent cases referred to above are sufficient to hold that a revision has been used in the Code of Civil Procedure in a technical sense and is a species different from an appeal and there are several distinctive features which distinguish one from the other. Therefore, what is provided in respect of an appeal under the Code would not of its own force apply, to a revision as well.
11. Apart from what has been already stated, it may further be observed that Part VI of the Code deals with appeals. Then there is a further distinction between appeals from original decrees and those from orders. Section 104, C. P. C. Is clearly placed in this part and clause (0 of subsection (I) provides for an appeal from any order made under rules from which an appeal is expressly allowed by the rules and in this behalf Order XLIII may be referred to.
Section 115, C. P. C. Conferring powers of revision is placed in Part VII of the Code dealing with reference, review and revision. The place mint of a provision in a particular part of a statute is not without significance and it is a legitimate aid for interpretation. It is in these circum stances impossible to subscribe to the view that the provisions of rules 3 and 4 of Order XLIII of the Code are also designed to apply to revisions under section 115. There is no ambiguity insofar as rule 3 is concerned as it clearly speaks of a situation where an appeal against an order is preferred under Order XLIII during pendency of a suit and what is mandatorily required to be done by the appellant before institution of such an appeal.
12. The learned District Judge in his impugned order has given no reasons but merely relying on Order XLIII, rules 3 and 4 held the revision to be incompetent for petitioner's failure to comply with these two rules. He considered a mere reference to Supreme Court's decision reported as PLD 1983 SC 693 to be sufficient to support his view.
(1) PLD 1975 Lah. 334 (2) PLD 1970 SC 506
13. It appears to me that seemingly the confusion crept into the mind of the learned District Judge from the language employed in rule 4 which has mutatis mutandi applied the provisions of rule 3 relating to appeals to all applications which are not appeals but are filed before an Appellate Court during the pendency of a suit. It needs to be emphasized that there can be no escape from the fact that 'all applications' men-tioned in rule 4 are confined to those filed before an Appellate Court. There can be no legitimate substitution of the words "appellate Court" with "revisional Court" or addition of latter in rule 4. The applications contemplated by this rule are none else than those submitted before an Appellate Court as such, may be in the course of an appeal or in the matter of an appeal but in no case it would cover an application for revision invoking the revisional jurisdiction of a revisional Court. The matter may be examined now from a different angle. It may be noticed that proviso to subsection (1) of section 115, C. P. C. And rules 3 and 4 to Order XLIII were added by same Ordinance X of 1980. The legislature is presumed to be aware of the existing state of law when amending it. If the intention had been to apply rules 3 and 4 of Order XLIII to revisions, mutatis mutandis, then the proper place for such a provision was section 115 and not Order XLIII, C.
P. C.
14. It thus appears perfectly clear to me that the provisions of rules 3 and 4 of Order XLIII, C. P. C.
Would have no manner of application to revisions covered by section 115 of the Code and compliance of these rules cannot constitute conditions precedent on fulfilment of which conditions alone a revision could be entertained or if entertained could be dismissed from non-compliance with aforesaid rules. The impugned order of the learned District Judge dismissing the petitioner's revision petition on the view that "no notice of this revision petition having been given to the Advocate as required under the new rules 3 and 4 in Order XLIII of the Civil Procedure Code, this revision is not competent", speaking with due deference, is wholly unsustainable.
15. This does not conclude the matter because the learned District Judge dismissed the second revision filed by the petitioner after compliance with rules 3 and 4 of Order XLIII after holding it to be apparently time-barred. It should suffice to draw the attention of the learned District Judge to the law enunciated by the learned Supreme Court in re ; Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another holding.
"Since Limitation Act is not applicable to a revision, the Court was under no obligation to consider the question of limitation. It may also be relevantly mentioned in this context that no rule has been framed by any High Court under its rule-making powers prescribing limitation for revision."
I feel the necessity to point out that the rigours of law of limitation and doctrine of laches are distinct in scope and application. The former extinguishes the remedy by force of the Statute and a valuable right accrues in favour of opposite side when the matter becomes barred under., the Limitation Act or limitation prescribed by special statute, but principles of laches are invoked where statutory limitation is not prescribed but the Court takes into account the conduct of a party involving indolence and excessive inaction equivalent to acquiescence or waiver of the remedy and which resulted in causing prejudice to the opposite side. Sometimes, the interest of an innocent third party may have intervened on account of laches. In such like cases, the Court on equitable consideration and keeping in view the requirements of justice in circumstances of a case refuses to exercise its discretionary jurisdiction in favour of a person guilty of laches who approaches the Court for discretionary relief. The rigours of law of limitation are rigid and Courts insist upon explanation of each day's delay beyond the period prescribed and sufficient cause must be established for extension of time whereas the decision of question of laches would depend on facts and circumstances of each case and the delay can be explained to the satisfaction of the Court.
I may here advantageously quote the exposition of law on the doctrinal of laches made by the Privy Council in re : John Job Agbeyegbei v. Festus Makene lkomi and another (1) wherein it was observed :- "In case of laches the law was stated by Lord Blackburn in Erlanger v. New Somberor Phosphate Company (1878 L R 3 A Cat p. 1279)
' In Lindsay Petroleum Company v. Hurd (L R 5 P C 239) it is said 'The doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to live a remedy, either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where, by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases lapse of time and delay are most material. But in every case if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.' I have looked in vain for any authority which gives a more distinct and definite rule than this : and I think, from the nature of the inquiry, it must always be a question of more or less, depending on the degree of diligence which might reasonably be required, and the degree of change which has occurred, whether the balance of justice of injustice is in favour of granting the remedy or withholding it. The termination of such a question must largely depend on the turn of mind of those who have to decide, and must, therefore, be subject to uncertainty; but that, I think, is inherent in the nature of the inquiry.
' The length of the delay and the nature of the acts done during the interval in the present case in their Lordships' opinion cause a balance of justice in favour of the respondent who had been in possession of the land for nine years at the time of the trial."
(1) PLD 1953 P C 19 ' It was further held : "In no other case to which their Lordships' attention has been drawn has there been anything like a delay of nine years and having regard to the length of the delay, the inadequacy of the explanation of the delay and the consequences of setting aside the sale of the land as against a bona fide purchaser for value who had been in occupation of the land during the whole period and had apparently altered the buildings thereon, their Lordships are of opinion that the case ought not to have been relisted and having been relisted ought to have been dismissed."
16. Next, I will also respectfully rely on the principles enunciated by the learned Supreme Court of Pakistan in the case of S. Shan't Ahmed Hashmi v. Chairman, Screening Committee, Lahore and another (1). In this precedent case, it was held at page 373 as follows : "There is also ample authority for the proposition that a writ against a void order may be dismissed if the petitioner is estopped by his conduct from challenging it or if he has been guilty of laches.
It is true that a writ was issued in Yousaf Ali's case PLD 1958 SC (Pak.) 104 and the void order was set aside 'together with the superstructure of rights and obligations' built upon it. But there were no equities in that case against the appellant, because the void order related to a dispute about property and was one of a series of orders in the continuous litigation between the parties, therefore, no equities had accrued either in favour of respondent or in favour of third parties. But, in the instant case, even on the footing that the impugned order is void the petitioner failed to challenge it for more than a decade, therefore, it must have led to consequences, such as the promotion of other people to the appointment held by the petitioner. Additionally to allow the writ after much gross laches would be to throw on the tax-payer the consequences of the Petitioner's gross negligence in pursuing his remedies but as the petitioner relied upon the judgment in his favour by the Letters Patent Bench, I would recall here that the Letters Patent Bench had relied on this Court's judgment in Abdul Qadir's case PLD 1964 SC 829 but the delay in filing the writ petition in this case was three years, and there can be no comparison between a delay of three years and a delay of twelve years.. I may, however, point out that this Court had condoned a delay of about eight years in Pakistan v. Sheikh Abdul Hamid PLD 1961 SC 105. But this was an extreme case. In any event, the law has to draw a line somewhere between delay which can be condoned, and, delay which cannot be condoned, and as the delay in the instant case was too gross to be condoned, the writ petition of the petitioner had to be dismissed on this ground irrespective of the questions whether the impugned order was void or voidable."
17. The learned District Judge appears to be unaware of this distinction and proceeded to hold the revision time-barred when in fact no limitation is prescribed therefor. This unawareness of the correct legal
(1) 1978 SCMR 367 ' position prevented him from appreciating the explanation given by the petitioner for the delay simpliciter in the circumstances of the case before him.
18. Before closing it may be observed that the course of conduct adopted by the learned District Judge in the present case demonstrably runs contrary to the purposes of law in respect of which he appeared so much concerned. This is evidenced by the fact that he entertained the revision, granted the stay order by way of interim relief, admitted the revision to a regular hearing without notice to the respondent for a limine stage hearing but after a lapse of about six months when he was obliged to decide the revision on merits, he travelled backward to pre-admission stage and dismissed it on purely technical ground and ill-merited pleas. This resulted in the very negation of the purpose of law and amounted toll failure to exercise jurisdiction vested in him.
19. I have desisted from commenting upon the merits of the impugned order of the trial Court which was under attack before the learned District Judge in view of the fact that there was no lawful disposal of the petitioner's revision at his hands and the case is being remanded to bam.
In view of what has been stated above, the writ petition is accepted and the impugned orders of the learned District Judge are declared to be without lawful authority and of no legal effect. The case is remanded to him for disposal in accordance with law. The petitioner's revision M petition will be still deemed to be pending before him. As the respondents have not contested the proceedings, there will be no order as to costs.