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1995 SCMR 69

MUHAMMAD MIAN vs Syed SHAMIMULLAH and 2 others

Citation1995 SCMR 69
CourtSupreme Court of Pakistan
Case No.Civil Appeal No, 560 of 1993
Date1994-06-01
Judge(s)Saleem Akhter, Abdul Qadeer Chaudhry
ResultCase remanded

' ABDUL QADEER CHAUDHRY, J.---This appeal by leave to appeal of the Court is directed against the judgment of the High Court dated 11-11-1992.

2. The facts in brief are that the appellant brought a suit for declaration, injunction and cancellation of the mutation. The suit was contested by the respondents. The disputed quarter was allotted to the appellant in the year 1971. The appellant executed a power of attorney in favour of respondent No,1. On the basis of power-of-attorney respondent No,1 transferred the quarter in favour of respondent No,2.By way of a gift. The trial Court decreed the suit of the appellant, vide judgment dated 2-5-1985. The decree was challenged in appeal before the District Judge. The appeal was accepted and the suit of the appellant was dismissed. The High Court maintained the judgment of the learned District Judge. The learned Single Judge dismissed the revision petition on the technical ground that it was filed beyond a reasonable period and that the appellant did not seek relief for recovery of possession of the disputed quarter.

3. We have heard the learned counsel for the parties. The appellant had moved an application for amendment in the plaint to the following effect:-- "(1) Addition to para. 14 of the plaint. In the circumstances stated herein plaintiff is also entitled to the possession of the Quarter herein.

(2) In para. 16, line 5 between the words 'Order' and 'and' by addition of Rs,15,000 for the relief of possession.

(3) By addition of prayer (iii) (a) in para. 17 (iii) (a) for possession of Quarter No,C-46, Paposh Nagar, Karachi from defendants and all persons claiming through or under them.

' It is further prayed that the accompanying amended plaint may be taken on record accordingly."

' The application has been contested by the respondents. It has been stated that the application has been filed after long delay. The suit was filed in the year 1979, but the relief of possession was not claimed, therefore, the application for amendment may not be allowed at this belated stage.

The amendment claimed by the petitioner will not alter the nature of the suit or relief. The relief of possession is a consequential relief for declaration. This relief arises out of the claim of the appellant. The amendment sought by the appellant is only of technical nature. No further evidence is required. In Ahmad Din v. Muhammad Shafi (PLD 1971 SC 762) it has been observed that "the suit could not fail merely by reason of fact that consequential relief by way of possession had not been claimed. If the suit was otherwise maintainable and the appellant was otherwise entitled to the relief it was open to the Courts to allow him to amend the plaint by adding a prayer for possession and paying the appropriate ad valorem court-fees." In Zubaida Bibi v. Hashmat Bibi (1993 SCM R 1882) the prayer for amendment of plaint was allowed. We, therefore, allow the amendment at the cost of Rs,5,000. The appellant shall pay ad valorem court-fee. As regards the question of limitation, the High Court has dismissed the petition on the ground that the revision petition was filed after the lapse of about 12 months. The High Court itself observed that no period of limitation is prescribed for filing revision application, but it can only be filed within a reasonable time.

4. The learned counsel for the appellant submitted that there is no period of limitation prescribed for filing the civil revision. He has relied upon the judgment of this Court reported as Muhammad Swaleh v. United Grain and Fodder Agencies (PLD 1964 SC 97) wherein it has been held as under:-- ' The Limitation Act does not provide for any period of limitation for an application in revision. The only Article which could be applicable was the residuary Article 181 which provides a limitation of three years for an application, but even that Article will not stand in the way of the exercise of revisional power for these powers can be exercised suo motu. At the same time it should be remembered that the respondents had themselves approached the High Court in the exercise of its revisional jurisdiction and once the High court is seized of the case in the exercise of such jurisdiction it can in accordance with section 115, C.P.C. "make such order in the case as it thinks fit"

' In Riasat All v. Muhammad Jaffar Khan (1991 SCM R 496) this Court observed as under:-- "There is no period of limitation prescribed for the prosecution of a revision petition in the Limitation Act. The Lahore High Court has for many years adopted a thumb rule of 90 days within which revision petition should be filed, failing which the discretion may not be exercised in the petitioner's favour on grounds of unreasonable delay. However, revision petition even though filed beyond the period of 90 days can be entertained, if the Court is satisfied as to the reasons for the delay. It should not be forgotten that the scope of the revisional powers, though hedged by conditions, is nevertheless vast and corresponds to a remedy of certiorari and the supervisory jurisdiction can be invoked by the Court suo motu and the Court can also make "such order in the case as it thinks fit."

5. We, therefore, allow this appeal, set aside the findings of the High Court on both points and remand the case to the High Court for decision on merits. The parties are left to bear their own costs.

Cited by 11 cases

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