This judgment shall dispose of Civil Revision Nos.93 to 105 of 1993 as common question of facts and law is involved in all the petitions.
1. Precisely facts are that plaintiffs/respondents filed separate suits for declaration and permanent injunction before the Court of Civil Judge I, Quetta, on the averments that each of them are in possession of a piece of land 180 sq. Ft. Situated at Pishin Bazar on Patta for 30 years commencing from 1977, which they did obtain from the Administrator, Municipal Committee, Pishin i,e, respondent No,2. On having procured relevant documents and raising construction of the shop they are running the business. It was also their case that being the allottees of the plots they are regularly paying Born Bara (Ground Rent). But despite of that the petitioner and authorities of the Municipal Committee are demolishing the shop built on the allotted plot without affording the opportunity of hearing to them.
The following relief was sought in each suit:--
(I) That the plaintiff is entitled to enjoy/remain in possession of the shop in question in accordance with law; that the proposed action of defendants for demolition of the shop without any opportunity is illegal, unlawful and without jurisdiction. permanent injunction restraining the defendants from demolishing the shop in question;
(iv) any other relief which may be deemed proper;
(v) costs of the suit may also be awarded.
The petitioner filed written statement separately to each plaint and contended that respondents had encroached upon the State land illegally. The disputed land is the property of the Provincial Government and not of Municipal Committee, Pishin, hence Municipal Committee could not legally allot the plots to them. Since the plaintiffs had encroached upon the State land so proceedings were initiated against them under the provisions of M.L.O. 16/46 and they have been asked to vacate the Government land. The copy of the decision taken in that behalf on 12th December, 1985, was also annexed alongwith written statement.
3. Following issues for determination were framed by the Court below:-
(i) Whether the plot in question is property of Provincial Government? If so, to what effect?
(ii) Whether the land in question is allotted to the plaintiff by defendant No,1 for 30 years on 15-6- 1977?
(iii) Whether the plaintiff has encroached upon State land? If so, to what effect?
(iv) Whether the plaintiff is entitled to the relief claimed for?
(v) Relief.
4. On recording evidence for and against of both the parties in the Civil Suit No,180 of 1989 covered by Civil Revision No,105 of 1993, it was transferred on the files of other suits in pursuance of order of consolidation dated 3rd June, 1987. The learned Civil Judge, Quetta, vide impugned order, dated 8th April 1992, decreed the suit in favour of respondent No,1 and against the petitioner.
5. The above order was challenged in appeals before the District Judge, who transferred the same on, the file of Additional District Judge III, Quetta and ultimately by means of common order dated 7th December, 1992, appeals were also dismissed.
6. As such, the petitioner had preferred instant revisions on 6th May 1993, challenging both the orders dated 8th April 1992, and 7th December, 1992, passed by the learned Civil Judge and Additional District Judge III, Quetta, respectively. Along with the memo. Of revisions, applications for condonation of delay in filing the petitions have also been filed. Inter alia mentioning therein that the judgments in question are void and have been passed regardless of the basic principles of law.
The respondent No,1, vehemently opposed the request of petitioner for condontion of delay in filing the petitions.
7. Mr. Raja M. Afsar, Advocate-General, Balochistan, appeared on behalf of the petitioner whereas the private respondents were represented by Mr. W.N. Kohli Advocate. The Municipal Committee despite of service failed to appear and contest the proceedings.
8. Mr. Raja M. Afsar the learned Advocate-General on behalf of petitioner submitted as under:--
(i) The revision could not be filed within the period as the file was entrusted by him to one of his colleagues who could not present the petition within time.
Moreover the orders are not sustainable in law being void, thus the delay in filing the revision is condonable.
The Deputy Commissioner in exercise of authority under M.L.O. 16/46 had cancelled the allotments made by the Municipal Committee, Pishin in favour of respondents as back as on 17th December, 1985, and uptil now that order has not been challenged despite of the fact that private respondents are fully aware about its existence. He further emphasized that the copy of the order referred hereinabove was supplied to respondents alongwith written statements and it was also brought on record vide Exh.D.4.
(iv) The decree passed by the trial Court and confirmed by the Appellate Court is not sustainable because the respondents are no more lawful allottees of the disputed plots and both the Courts have ignored to attend this important aspect of the case.
On the other hand Mr. W.N. Kohli, Advocate urged as under:--
(i) The delay in filing the revision cannot be condoned on account of the negligence at the part of the office of the Advocate-General.
The orders under challenge have been passed with lawful authority and jurisdiction by the forums below, as such, cannot be termed to be void in the eye of law.
The private respondents have no knowledge about the cancellation of lease deeds from their names by the petitioner vide order dated 17th December, 1985.
9. I heard the learned counsel of parties and with their assistance the record of the case has also been perused carefully.
10. The moot question involved in this matter relates to the maintainability of the petitions on the point of limitation. The law-givers had amended section 115, C.P.C., by means of an Act XI of 1992, whereby following amendment was incorporated:-- "Amendment of section 115 Act V of 1908. ---In the said Code, in section 115, in subsection (1) in the proviso for the full-stop at the end a colon shall be substituted and thereafter the following further proviso shall be added namely: Provided further that such application shall be made within ninety days of the decision of the subordinate Court."
The perusal of 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 proceedings 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, 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 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 is sufficient cause exist in favour of the party who seeks the condonation of delay. But this section of the Limitation Act had not been made applicable in accordance to section 29 of the Limitation Act, on the revision under section 115, C.P.C., thus application moved under section 5 of the Limitation Act, to condone the delay in filing of petitions, would not be entertainable.
11. Mr. Raja M. Afsar the learned Advocate-General emphasized that the petitions could not be filed in time due to the circumstances which has explained hereinabove, however, he maintained that in view of the peculiar circumstances of the case in the interest of justice this Court is empowered to condone the delay because the orders under challenge are void in the eye of law against which no limitation shall run. The learned Advocate-General, to substantiate the plea referred to PLD 1966 SC 776, PLD 1965 SC 618, PLD 1967 SC 191, 1970 SCM R 558, 1986 SCM R 64, 962 and 1493. It considered the ratio decidendi of the reported judgments. In my estimation these cases have no nexus to the arguments of the learned Advocate-General because in these cases the Honourable Supreme Court has laid down rules for considering the application under section 5 of the Limitation Act, including the factors which would be considered while bringing the case within the four corners of section 5 of the Limitation Act. As it has already been held that section 5 of the Limitation Act has no application on the proceedings being drawn under section 115, C.P.C., therefore, the principles laid down in the reported judgments cannot be imported for the decision of these cases.
12. Mr. Raja M. Afsar learned Advocate-General also submitted that on account of delay in following the departmental formalities regarding submitting the petitions, the delay has been caused, therefore, the petitioner, legitimately can pray for condonation of the delay. He made reference to Pakistan Post Office v. Settlement Commissioner 1987 SCMR 119. On the other hand Mr. W.N. Kohli Advocate controverting to the petitioner's counsel stand argued that the Honourable Supreme Court time and again has affirmed that no indulgence can be allowed to the Government functionaries merely because of the fact that proceedings could not be initiated due to lengthy procedure which is to be followed before instituting the proceedings. He made reference to 1981 SCM R 37, 1988 SCM R 1906, Government of Balochistan v. Abdul Nabi and others. He also relied on unreported judgment of Honourable Supreme Court passed in C.P.S.L.A. No.50 of 1992, Province of Blochistan through Secretary, Finance Departmental v. Noor Muhammad and others. Learned counsel also relied on decision of this Court in an identical matter in Civil Revision No.150 of 1992. In the case of Pakistan Post Office Honourable Supreme Court while considering the period of filing a writ petition where no statutory period of limitation has been prescribed for approaching the Court law was laid down as under:-- "The learned Deputy Attorney-General pleaded with vehemence that no juridical principle could deprive the Government from placing reliance on legitimate department dealings, case processing, observance of rules and practices and justified delays involved therein, in explaining the two delays. He rightly argued that such condonation is different from exclusion of a time from period of limitation which is not applicable to cases of laches---wherein even the rigours of rules of condonation of delay vis-a-vis a statute of limitation are not attracted.
After hearing both the learned counsel on point of the delay which is divided into two periods of some months each (it should not have been lumped together as done by the High Court) we are satisfied that neither the period of the delay can be treated as laches nor was it without reasonable explanation. This appeal thus merits to be accepted on this ground alone.
It needs to be emphasized that there is absolutely no justification to equate laches with statutory bar of limitation. While the former operates as a bar in equity, the latter operates as a legal bar to the grant of remedy. Thus, in the former, all the dictates of justice and equity and balance of legitimate rights are to be weighed; in the lattter, subject to statutory relaxations in this behalf, nothing is left to the discretion of the Court---it is a harsh law. Thus, passage of time per se brings the statute of limitation in operation, but the bar of laches does not deny the grant of right or slice the remedy unless the grant of relief, in addition to being delayed, must also perpetuate injustice to any other party. It is also in this very context that the condonation of delay under section 5 of the Limitation Act, will be on different harder considerations than those in a case of laches. For example while it is essential to explain and condone the delay of each day vis-a-vis statutory limitation, there is no such strict requirement in cases of laches."
Now considering the case in hand at the touchstone of the above observations it is held that the petitioner had not spelled out the circumstances in the application for seeking condonation in filing the revision. The minute scrutiny of the application filed to seek condonation indicates that except mentioning that the orders under challenge have not been passed according to the procedure by the forum below, no other details have been mentioned. Moreover in presence of statutory bar of provisions under section 115, C.P.C., the delay legally cannot be condoned, even for the reasons explained by the Advocate-General hereinabove. It is also important to mention here that in case of Commissioner of Income-tax v. Raees Ahmed Khan 1981 SCM R 37 and Government of Balochistan v. Abdul Khaliq 1988 SCM R 1993, as well as in unreported decision in the case of Province of Balochistan v. Noor Muhammad and others no indulgence has been shown to the Government Agencies in filing the proceedings beyond the period of limitation because of the fact that certain formalities in consulting the various Government quarters are to be fulfilled. Even otherwise on the facts of the instant case it appears that there was no delay as far as the Government of Balochistan or the petitioner himself is concerned because the application was moved for obtaining the certified copy of the appellate order, dated 7th December, 1992, on 20th of February, 1993, which was prepared and delivered on 11th February, 1993 to the petitioner. Whereas sanction has been granted on the name of Advocate-General, Balochistan by the Law Department of Provincial Government to file the petition on 16th March, 1993, much before the expiry of the period of limitation i.e. 90 days, but surprisingly petitions were submitted on 6th May, 1993, without offering plausible reasons for the delay in filing the petitions. It is needless to mention that the Court is not responsible for the negligence of official agencies and if there is slackness and negligence on the part of any of its organ the competent authority is always empowered to take its notice in accordance to law.
13. I also failed to associate myself with the learned Advocate-General that no limitation shall run against the impugned orders which according to him are void in the eye of law. As far as connotation of void is concerned it has been interpreted at various occasion with reference to the facts and circumstances of the case. It is now judicial concensus that such order at the best could be termed as an illegal order which is got to be set aside by filing the proceedings within time.
Because if a void order is in the knowledge of a party who is being adversely effected from it. It becomes its legal obligation to challenge the same before the competent forum in accordance with law before the expiry of statutory period of limitation. In this context reference is made to PLD 1975 BJ 29 and PLD 1977 SC 599. Relevant para. from the report of SC for the sake of benefit is reproduced hereinbelow:-- "In view of the frequency with which gross negligence is sought to be condoned on the plea that the impugned order was void or without jurisdiction is only a type of an illegal order passed by a Court and the fact that it has been passed and that it may, therefore, create rights cannot be altered by describing it as void or without jurisdiction. And, further, the expressions void orders and orders without jurisdiction are overworked expressions. No doubt they are relevant in some contexts but as suggested by Lord Reid in Anisminic Ltd. v. Foreign Compensation Commission and others (1969) 2 AC 147 it would be better to use these expressions in the narrow and original sense of the lack of competence of the Court or the Tribunal 'to enter on the enquiry in question'. Now in the instant case, there is no dispute that the learned Civil Judge, who passed the impugned order had seisin of the case therefore, it was for him to decide whether the case was fixed for hearing or not on 1-12-1975. And, even if it is assumed that his decision was totally illegal, the legislature has provided a remedy for challenging such orders, and because the Legislature has provided this remedy, the petitioner had filed its application under Rule 7 of Order IX of the Civil Procedure Code.
But as that application was dismissed on account of petitioner's gross negligence, the petitioner had failed to make out any case whatever for invoking the High Court's Revisional Jurisdiction."
14. A perusal of file makes it clear that petitioner had knowledge about the impugned orders as the certified copies were obtained within time. Moreover the sanction from the Government for filing revisions was also obtained before the expiry of the statutory period of limitation. Thus, the petitioner should have filed the proceedings without wasting the time.
15. Now it would be examined that in supervisory jurisdiction whether this Court is empowered to suo motu examine the impugned orders to rectify the illegalities or irregularities if had been committed by the forum below. The section 115, C.P.C., is devided into two parts, firstly which relates to filing the petition by an aggrieved party and second where High Court has been empowered to pass an appropriate order in the case where it thinks fit on calling for the record, that the subordinate, Courts have exercised the jurisdiction not vested by law or have failed to exercise a jurisdiction so vested or had acted in the exercise of its jurisdiction illegally or with material irregularity. The object of enacting section 115, C.P.C. is to provide the supervising power to the High Court, to check illegalities and irregularities and also to see whether the powers are being exercised with jurisdiction or otherwise, by the subordinate Court. Therefore, it is held that despite of the fact that revision filed by an aggrieved party is likely to be failed on any technical point but even then this Court has suo motu jurisdiction under section 115, C.P.C. to examine the validity of the impugned order keeping in veiw the parameters mentioned hereinabove.
16. During arguments Mr. W.N. Kohli learned Advocate was called upon to explain whether both the Courts below had competently declared the respondents lawful allottee with peaceful possession of the disputed plots because the lease deed in their favour stood cancelled in pursuance of the Deputy Commissioner, order passed under M.L.O. 16/46 as back as on 17th December, 1985. The learned counsel stated that this order was not within the notice and knowledge of the respondents.
At this stage Mr. Raja M. Afsar Advocate-General pointed out that the statement of facts being made by the learned counsel of respondents is not correct. Because copy of that order was supplied to each respondent alongwith written statement and the petitioner also produced the same before the lower Court as Exh.D.4. It would be pertinent to mention that the trial Court should have framed a specific issue in view of the preliminary legal objection raised in written statement with reference to Exh. D.4. Additionally the learned trial and appellate Court had not considered this important document while discussing the relevant issues a perusal whereof makes it clear that the petitioner vide above order cancelled the lease deeds which were executed in favour of the respondents namely Abdul Salam, Abdul Karim, Dilbar Khan, Daru Khan and Slasrullah, whose cases are covered by Civil Revisions Nos. 98, 99, 101, 103 and 104 of 1993.
Mr. Raja M. Afsar, Advocate-General stated that the lease deeds granted in favour of respondents Sardar Muhammad, Sohrab Khan and Fan' Muhammad under Civil Revisions Nos. 100, 102 and 105 have also been cancelled in the same manner. But he failed to produce any document in this behalf to substantiate the stand. Mr. W.N. Kohli, Advocate pointed out that Sardar Muhammad and Malik Fazal Muhammad were the allottees of the plot bearing Khasra No.158/129. In the year of 1980, the then Deputy Commissioner threatened them of illegal dispossession, therefore, they filed two separate suits against petitioner bearing Nos.112, 113/80, seeking the relief of declaration, permanent injunction and damages. The Senior Civil Judge vide order dated 10-5-1982, decreed the suit ex parte in their favour. The learned counsel filed certified copies of judgment during the hearing of the Petition. As far as respondent Sohrab Khan in Petition No.102 of 1993 is concerned he has also not been found in possession of any valid allotment order, lease deed etc. Nor previously he obtains a decree in his favour like the other respondents named above. The Courts below have also not attended his case from this point of view. Accordingly it is held that respondent Sardar Muhammad and Fazal Muhammad cannot be dispossessed from the plot which is in their possession. In view of the ex parte decree, because in these proceedings it is not possible to nullify the effect of the decrees more over Government is always free to avail a legal remedy before the competent Court of law. But as far as the case of respondent Sohrab Khan is concerned that has not been decided by the Court below and appellate Court in accordance to law as he failed to prove on record that he being a lawful allottee is entitled to remain in the possession of the disputed plot.
The above discussion leads to believe that the trial Court and Appellate Court passed decrees in favour of respondents in the Petitions Nos. 98, 99, 101, 102, 103, 104 of 1993 without any evidence, as such committed gross illegalities in declaring them to be the lawful allottees within possession of the plot the subject-matters of proceedings.
For the foregoing reasons the Petitions Nos.98, 99, 101, 102, 103 and 104 of 1993 are allowed.
Consequently impugned orders are set aside. The Civil Revisions Nos.100 and 105 of 1993 are dismissed being barred by time and for the reasons that orders dated 10-5-1982 passed by Additional District Judge are operating in favour of respondents. Parties shall bear their own costs.