' This petition may be considered as an admitted case.
2. This is an objection case. The office has raised an objection that it was time-barred by 29 days and an application under section 5 of the Limitation Act for condonation of delay may be filed. The revision petition was re-filed after removing the objection on 10-12-1995.
3. Learned counsel for the respondent raised a preliminary objection that the revision petition was not properly documented in view of subsection (i) of section 115, C.P.C. (amended section) and it was time-barred by more than 29 days. The suit for permanent injunction was filed by the petitioner on 23-12-1986 which was dismissed by the learned Civil Judge, Multan vide judgment and decree dated 15-12-1990 with costs. The petitioners filed an appeal against this judgment which was also dismissed by the learned Additional District Judge, Multan vide judgment and decree dated 14-3-1995 with costs and after the authoritative pronouncement of the same it was intimated to the petitioners, hence the petitioners have filed the time-barred revision petition. It is further submitted that according to subsection (i) of section 115, C.P.C. The petitioners were under duty of law to furnish copies of the pleadings, the documents and the orders of the subordinate Courts or give an application for dispensation of the same to the High Court who has power to dispense with such documents and summon the record of the Courts below. It is further submitted that the petitioners plaintiffs produced as many as nine witnesses i,e, P.W.1 to P.W.9 to discharge various issues placed on the petitioners and the defendant produced three witnesses and a long list of documents (Exhs.D/1 to D/25). Moreover at the trial stage the petitioners could not prove their possession of the suit property and therefore, the finding on Issue No,2 was clearly passed against them that they are not in possession of the disputed property. It was admitted by the petitioners in their evidence that they are not in possession of the disputed property. Therefore, at the appellate stage the petitioners filed an application under Order XXIII, Rule 1, C.P.C. Seeking permission for institution of a fresh suit after withdrawal of the present suit which was seriously opposed from the respondent/defendant side and ultimately the Appellate Court dismissed the same. Learned Appellate Court also affirmed the findings of the learned trial Court dismissing miscellaneous applications under Order XIII, Rule 2 and Order XVIII, Rule 2 read with section 151, C.P.C. And dismissed the appeal being frivolous with costs.
4.Learned counsel for the petitioners submitted that the suit was filed on 23-12-1986 and vide judgment and decree dated 15-12-1990 it was dismissed by the learned trial Court and the appeal filed by the petitioners was also dismissed by the learned Additional District Judge, Multan vide judgment and decree dated 14-3-1995. In view of Riasat Ali v. Muhammad Jaffar Khan etc. 1991 SCMR 496 the dismissal of the revision is not mandatory, the parties may be called to submit their documents and constitute the file. Learned counsel has also referred Deputy Commissioner, Pishin v. Abdul Salam and others PLD 1993 Quetta 121 and Mst. Shamim Akhtar v. Munawar Din and 2 others PLD 1995 Lahore 559 submitting that the time requisite for supply of copy is to be calculated up to date of delivery of the certified copy of the order in the absence of material on record to show that the person concerned was intimated about the completion of the certified copy of the order earlier. He has, however, conceded that the pleadings of the parties, orders of the subordinate Courts are attached with the civil revision documentary evidence has not been furnished with the instant revision petition.
4.Learned counsel for the respondent vehemently contested the instant revision by relying on Muhammad Bashir and others v. Muhammad Hussain 1994 CLC 1207 (Lahore) where it was held that failure to furnish copies of documentary evidence produced before the trial Court and also given in the application for dispensation of the same, the revision petition is likely to be dismissed in view of such defect. His next submission is that the copy was given within the limitation of the filing of the revision petition; this revision petition itself is barred by 29 days and therefore, no opportunity can be given to the petitioners to re-constitute the revision petition and properly document the same as the same was barred by time on 14-9-1995 and till that time no application under section 5 of the Limitation Act was filed by the petitioners and it was re-filed on 10-12-1995 after removing the objection and by this time it was 55 days time-barred. The application under section 5 of the Limitation Act was filed by the petitioner and only reason which is advanced by them was not removing the objection in time and filing the same in time is that he went to Rawalpindi. He also relied on Messrs Pakistan State Oil Limited v. Messrs Pakistan Burmah Shell 1993 CLC 57 (Karachi). It was held that the revision not accompanied by documents which had been referred by the Appellate Court and which proved as per judgment of the Appellate Court respondent's case, such documents having not been produced along with the memorandum of revision, which was a mandatory requirement of filing of revision, same was not properly constituted and the revision being not maintainable was dismissed in the circumstances. He again submitted that the proviso to subsection (i) of section 115, C.P.C. Makes it mandatory to furnish copies of the pleadings, documents and orders of the subordinate Court to the Revision Petition.
Learned counsel has replied to the objection raised by the learned counsel for the respondent by submitting that the power conferred by section 115, C.P.C. Is exceptional but a necessary power intended to secure effective exercise of High Court's superintending and visitorial powers and correction of jurisdictional errors or material irregularities in proceedings of the subordinate Courts.
The proviso was added to subsection (i) of section 115 to place burden on the party filing the revision nevertheless the revisional powers of the High Court are vast.
5. I have heard learned counsel for the parties and properly perused the record. The petitioners filed a suit for permanent injunction against the respondent that he be restrained from constructing through encroachment at Property No,44, Qasim Road, Multan. A cursory glance on this plaint shows that it was very badly drafted and is not accompanied by any map showing where encroachment is being done by the respondent and also does not disclose that what part of his property is being encroached through construction by the respondent/defendant. This plaint was hotly contested by the defendant stating therein that the property is neither in possession of the plaintiff nor the suit is maintainable in its present form and the evaluation of the suit for the purpose of court-fee and jurisdiction is less and that the respondent/defendant after getting sanction of the site plan started constructing his own property. He further submitted that he is bona fide transferee of the land from the Settlement Department and is in continuous possession since birth of Pakistan without interference from any side. He further contended that the plaintiff has not disclosed as to what portion of the property belonging to the petitioner is being encroached therefore, the instant suit is frivolous. On the pleadings of the parties as many as 13 issues were framed and the parties led oral as well as documentary evidence in support of their respective cases. This documentary evidence has elaborately been discussed by the Courts below.
Even the learned trial Court has given a finding that the petitioner has failed to prove his possession on the disputed land and therefore, the instant suit is not competent, in fact he has to file a suit for possession. Even the learned Appellate Court has discussed in the order that the petitioner has produced a miscellaneous application under Order XXIII, Rule 1, C.P.C. For withdrawal of the instant suit and for re-filing a fresh suit. These were the documents which the petitioner under the duty of law was to furnish them with the instant civil revision. As the learned trial Court has passed a speaking order after discussing evidence and giving issue-wise findings that the petitioner has failed to prove his possession, therefore, the present suit is incompetent and the petitioner is still possessed with the remedy to file a suit for possession.
6.I have perused the record and found out that the possession of the petitioner is not proved, when the possession of the petitioner over the disputed property is not proved how permanent injunction can be granted to the petitioner. The instant C.R. Is time-barred as well as learned counsel has failed to properly constitute the civil revision placing the documentary evidence as well as necessary documents on record. The revisional jurisdiction is intended to correct errors of the subordinate Courts and the limitation is a statutory bar, the application for condonation of delay was filed when the revision petition was refiled after objection and had become already time- barred. Therefore, on both scores the revision petition fails and is dismissed with no order as to costs.