' AJMAL MIAN, J.---By this common judgment we intend to dispose of the above 19 review petitions.
2. By the above review petitions, review is sought of the judgment dated 13-7-1991 passed by this Court in Civil Appeal No,1-P of 1990 and other connected civil appeals. The above review petitions were admitted to consider the question, whether a petition for leave to appeal under clause (3) of Article 185 of the Constitution of Islamic Republic of Pakistan, 1973, hereinafter referred to as 'the Constitution', was not competent when an appeal under clause (2) of the above Article was competent.
3. The facts giving rise to the above review petitions are, that Civil Appeals Nos.1-P and 3-P to 8-P of 1990, 4 to 11 of 1990, 27 of 1990, 46 to 48 of 1990, 724 to 727 of 1990, 235-P of 1990 and 236-P of 1990, were filed by the owners of the land whose land was acquired, hereinafter referred to as 'the owners of the land', whereas, Civil Appeals Nos.115-P to 149-P of 1990 were filed by the Government of N.-W.F.P., hereinafter referred to as the Provincial Government. Most of the owners of the land filed aforesaid Civil Appeals directly under clause (2) of Article 185 of the Constitution but some of the owners of the land and the Provincial Government filed their appeals with the leave of this Court.' When the above appeals came up for hearing before this Court, it was urged inter alia by Mr. Abdul Hakeem Khan, learned counsel for some of the owners of the land in the aforementioned appeals, that the Provincial Government's appeals were time-barred. In support of the above submission, it was contended that the Provincial Government should have filed direct appeals .
Within 30 days under clause (2) of Article 185 of the Constitution, instead of filing petitions for leave to appeal. It has been observed in the judgment, of which review has been sought, that "it seems that Civil Appeals Nos.1-P, 4-P to 9-P, 11-P and 27-P of 1990 filed by some of the land-owners are also barred by time by 2 to 15 days. Whereas, the N.-W.F.P. Government appeals, if they are to be treated as directed appeals, are time-barred by about 33 days, but if the same are to be treated as appeals with the leave of the Court, the same are within time".
' This Court condoned the delay for the following reasons, referred to in para. 6 of the above judgment:going to examine the judgments in connection with the appeals which are within time filed by the land-owners, we are inclined to condone the delay in filing of the aforesaid Civil Appeals Nos.1-P, 4-P to 9-P, 11-P and 27-P of 1990 with a view to avoid conflicting judgments. As regards the appeals filed by the Government of N.-W.F.P., we are inclined to condone the delay, if any, in filing of the above appeals as ' we have condoned the delay in the aforesaid Civil Appeals of the landowners."
' However, after condoning the above delay in filing of the above appeals, it has also been held that "if a party loses his right to file a direct appeal because of the limitation, he may invoke clause (3) of Article 184 of the Constitution for a petition for leave to appeal, which the Court may either grant or decline either on the ground that the party should have availed of a direct appeal or for the reason that the petition for leave to appeal has no merits".
4. In support of the above review petitions, Mr. Abdul Hakeem Khan, learned counsel for some of the petitioners, has vehemently urged that as direct appeals under clause (2) of Article 185 of the Constitution were competent, the petitions for leave to appeal, filed by the Provincial Government, were misconceived and, therefore, its above appeals should have been dismissed: To reinforce his above submission, he has relied upon a judgment of this Court in the case of Iftikhar Hussain Shah and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and others 1991 SCM R 2193, in which it has been held that the. High Court could not have converted the appeals into revisions as the order against which the revision was said to be competent, was an appealable order. Reliance was placed on the earlier judgments of this Court in the case of S. Azizul Hasan and another v. Malik Ghulam Muhammad 1971 SCM R 123 and the case of Muhammad Ibrahim and another v. Group Captain Salehuddin and others 1987 SCM R 218.
5. The above cases have no relevancy to the point in issue. The question involved in the present review petitions is, as to whether this Court could treat petitions for leave to appeal as appeals. In this regard reference may be made to the case of Haji Muhammad Nawaz v. Hussain Shah 1990 SCM R 1621, in which, instead of filing a direct appeal under clause (2) of Article 185 of the Constitution, a petition for leave to appeal was filed but this Court treated the same as an appeal and has condoned the delay. Mr. Abdul Hakeem Khan is unable to cite any judgment of this Court in which a contrary view might have been taken. It is a well-settled proposition of law that this Court has the discretion to treat a petition for leave to appeal as an appeal under clause (2) of Article 185 of the Constitution.
6. Then it was contended by Mr. Abdul Hakeem Khan that neither any application for. Condonation of the delay was made nor any case for condonation of the delay was made out and, therefore, it is a fit case for review of the judgment on the above point.
7. It is true that there was no formal application for condonation of the delay but this is to be viewed with the factum that it was first time during the arguments that the above question of limitation was raised. However, it was not correct to urge that no ground for condonation of delay was made out. This Court, while condoning the delay, has given reasons, the relevant portion of which is reproduced hereinabove. The question of condonation of delay has also been touched upon in para. 8 of the judgment in question, wherein reliance has been placed on the case of Commissioner of Income Tax, Rawalpindi v. Messrs Lyallpur Cold Storage, Lahore Road, Lyallpur and others PLD 1967 SC 436.
8. We may observe that generally a request for condonation of delay in respect of limitation period is to be made formally through an application but in a fit case, thii Court can condone the delay even on the basis of oral request. There is no such prohibition contained in rule (2) of Order XII of the Pakistan Supreme Court Rules, 1960, hereinafter referred to as 'the Rules', relied upon by Mr. Abdul Hake= Khan. Since the question of limitation was raised in the B midst of the arguments, it was considered just and proper to condone the delay without insisting upon a formal application.
In any case, the question o condonation of delay pertaining to limitation period was a matter of discretion. The exercise of the above discretion cannot be reviewed through a review petition. We asked Mr. Abdul Hakeem Khan to cite any case-law in which a Court might have recalled the order of condonation of delay of the period of limitation in exercise of review jurisdiction, which he failed to cite. In our view, the question of condonation of delay in respect of limitation period cannot be subject-matter of review.
9. Adverting to the question, whether this Court can entertain a petition for leave to appeal under clause (3) of Article 185 of the Constitution even in a case in which a direct appeal is competent under clause (2) of the above Article, it may be pertinent to refer to Article 58 of the late Constitution of the Islamic Republic of Pakistan, 1962, hereinafter referred to as 'the late Constitution', which reads as follows:- "58. (1) Subject to this Article, the Supreme Court shall have jurisdiction to hear and determine appeals from judgments, decrees, orders or sentences of a High Court.
(2) An appeal to the Supreme Court from a judgment, order or sentence of a High Court shall lie as of right where--
(a) The High Court certifies that the case involves a substantial question of law as to the interpretation of this Constitution;
(b) the High Court had sentenced a person to death or to transportation for life, or
(c) the High Court has imposed punishment on a person in pursuance of the power conferred on the Court by Article 123.
(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which clause (2) of this Article does not apply shall lie only if the Supreme Court grants leave to appeal."
' A plain reading of the above Article indicates that under clause (3) thereof an appeal with the leave of this Court was provided against a judgment, decree, order or sentence of a High Court in a case to which clause (2) thereof was not applicable.
10. In this regard, it may be pertinent to refer to the case of Syed Masumul Hassan and another v.
Sheikh Muhammad Omer PLD 1965 SC 466 and the case of Malik Ghulam Hussain v. Haji Muhammad Hayat PLD 1971 SC 573.
' In the above first case the petitioners, instead of filing a Letters Patent Appeal before the High Court filed a petition for leave to appeal. This Court granted the above petition for leave to appeal instead of dismissing the same on the ground of non-maintainability.The relevant portion of the order reads as follows:--- 'After hearing Mr. Ehsan-ul-Haq in support of the petition, we announced grant of leave. It was not brought to our notice at the time that the judgment in question being one delivered by a learned Single Judge of the High Court in second appeal, a further appeal within the High Court was competent, under the Letters Patent, if a certificate had been obtained from the learned Single Judge. The practice of this Court is to entertain petitions for special leave only against final judgments and orders of the High Court, that is such as are delivered or made in a case seeking the final remedy available in that Court. In view of the fact that counsel has been heard, and an order granting leave has been announced, we treat this as a special case, and proceed to state briefly the grounds for leave. But we wish to make it clear that the case is not to be regarded as a precedent."
' The same view was reiterated in the above second case in the following terms:-- "Thus, it will be noticed that though the practice of this Court is to entertain petitions for special leave only against the final judgments and orders of the High Court, this Court in some cases, has entertained petitions for special leave to appeal without asking the party to seek his remedy by way of letters patent appeal. In my opinion, under Article 58(3) of the defunct-Constitution of Pakistan, an appeal lies to the Supreme Court from any judgment of a High Court if the Supreme Court grants leave to appeal. There is no bar to entertain a petition for special leave from the judgment of a Single Judge of the High Court in a case where a Letters Patent Appeal lies. This Court, however, has made it a practice that it will not entertain a petition for special leave to appeal in a case where the party has not sought the remedy of Lettcrs Patent Appeal available in the High Court. Ordinarily, therefore, this Court should not have entertained petition for special leave to appeal. But since leave has been granted to the appellant and the appeal is pending before this Court for more than three years, I consider that it will not be in the interest of justice to dismiss this appeal merely on the ground that letters patent remedy is available to the appellant in the High Court. I would, therefore, hold that the appeal is quite competent and overrule the preliminary objection."
11. No doubt that the present case is distinguishable from the. Above two cases inasmuch as in the case in hand a direct appeal under clause (2) of Article 185 of the Constitution was competent whereas, in the above reports a direct appeal under clause (2) of Article 58 of the late Constitution was not competent.
12. Since in the judgment, of which review is sought, the petitions for leave to appeal were treated as appeals and the delay pertaining to limitation period was condoned, it was not necessary to have pressed into service the reason that a petition for leave to appeal would be competent under clause (3) of Article 185 of the Constitution, even in a case where a party could file a direct appeal under clause (2) thereof.
13. As the judgment, of which review is sought, is sustainable for the aforesaid first reason, in our view, it would be appropriate to examine the question, whether a petition for leave to appeal will be competent under clause (3) of Article 185 of the Constitution even in a case where a party loses his right of appeal under clause (2) thereof in an appropriate .Case, and