' MALIK MUHAMMAD QAYYUM, J.--This appeal under section 3 of the Law Reforms Ordinance, 1972 against the judgment and order of learned Single Judge of this Court, whereby the Constitutional petition filed by the appellants was disposed of on 17-10-1996, is on the face of it barred by time.
The appellants have, however moved an application under sections 5 and 11 of the Limitation Act, 1908 for condonation of delay by excluding the time, spent by them in persuing the application for review which they had filed before the learned Single Judge.
2. As already observed, the learned Single. Judge had disposed of the Constitutional petition on 17- 10-1996. The appellants applied for grant of certified copy of the judgment on 18-11-1996 which was supplied to them on 23-11-1996. On the same day, the appellants filed an application for review of the judgment and order which was refused on 17-3-1997. It was, thereafter, on 19-3-1997 that the appellants brought this appeal.
3. Mr. A.K. Dogar, learned counsel for the appellants has contended that the appellants are entitled to have the time spent by them in prosecuting the review application excluded while computing limitation. He has in this behalf relied upon Shah Muhammad v. Ghulam and another (PLD 1970 SC 196) and Ghulam Hussain and another v. Kanwar Ashiq Ali Khan etc. (PLD 1980 SC 198). The learned counsel stated that there was distinction between the cases where the review application when filed itself was barred by time and those cases where the review is filed within the prescribed period of limitation. He elaborated that as the law itself provides two remedies for challenging the judgment and order of a Court, i,e, one of review and the other of an appeal and also places an embargo that if an appeal is filed against the order, no application for review would lie, the time spent in prosecuting the application for review should be excluded.
4. The respondents learned counsel has, however, opposed this application.
5. Having heard the learned counsel for the parties and considered the law on the subject we regret our inability to agree with the learned counsel for the appellants that the appellants are entitled to have the time spent by them in prosecuting the review application excluded while computing the limitation for the purpose of appeal. The latest pronouncement on the subject is the case of Cantonment Board, Rawalpindi v. Muhammad Sharif through Legal Heirs (PLD 1995 SC 472) in which the Supreme Court has ruled in the following terms:- "As far as the second contention is concerned, the judgment and decree passed by the learned District Judge, Rawalpindi dismissing the petitioner's appeal on 11-3-1960 was challenged before the High Court in second appeal on 14-1-1961. The time prescribed for filing the appeal under Article 156 of the Limitation Act was 90 days. The petitioner was entitled to 13 days, consumed in obtaining certified copies of the judgment and decree under appeal. The appeal was admittedly filed on 14- 1-1961 and in this way barred by 203 days. It is well established that once time begins to run it does not stop. The prosecution of the review petition before the learned District Judge and time spent therefor could not be excluded under section 14 of the Limitation Act. Similarly, the time spent in obtaining copy of the order passed in review could not be excluded by presenting appeal in the High Court against judgment and decree of the learned District Judge, Rawalpindi. The discretion exercised by the learned Single Judge in condoning the delay in filing the appeal was contrary to settled legal position and result of misreading the record which was rightly interfered with by the learned Judges of the Division Bench of the Lahore High Court. This view finds ample support from the rule laid down in Kh.Muhammad Afzal etc: v. Sh. Muhammad Sadiq and others (1988 SCM R 179) as also in Ahmad Din v. Mst. Rasul Bibi (PLD 1968 SC 213)."
6. The learned counsel for the appellants has, however, tried to argue that the judgment in Cantonment Board's case supra should not be followed as the two cases upon which the Supreme Court had relied viz. Kh. Muhammad Afzal and others v. Sh. Muhammad Sadiq and others (1988 SCM R 179) and Ahmad Din v. Mst.Rasul Bibi (PLD 1968 SC 213) were distinguishable as the applications for review in those cases were barred by time and further that in Cantonment Board's case supra the Supreme Court did not take notice of its earlier view in Shah Muhammad v. Ghulam and another (PLD 1970 SC 196) and Ghulam Hussain and another v. Kanwar Ashiq Ali Khan etc. (PLD 1980 SC 198).
7. We are afraid, we are in no position to accept this contention of the learned counsel and refused to follow the latest authority of the Supreme Court on the subject. The rule laid down in Cantonment Board's case supra being emphatic and clear we are bound by the same and cannot refuse to give effect to it.
8. Be that as it may, the two cases on which the learned counsel for the appellants has drawn our attention namely Ghulam Hussain and another v. Kanwar Ashiq Ali Khan etc. (PLD 1980 SC 198) and Shah Muhammad v. Ghulam and another (PLD 1970 SC 196) are distinguishable. In the case of Ghulam Hussain's case supra the application for review was dismissed by the High Court on the ground that no error on the face of record had been pointed out. The appellants filed an application for leave to an appeal against the order dismissing the review. It was observed by the Supreme Court of Pakistan that the main order remained to be the order by which the cause was disposed of and not the order refusing to review the same and as the previous order had become binding on the appellants they could not be allowed to bypass it on the ground that the application for review had been filed. It was, however, observed that there may be cases where the application for review was refused for want of jurisdiction, in those cases the appellants can seek condonation. Of delay in challenging the original order. In that case the delay was refused to be condoned by observing that the question of jurisdiction was not involved. In the present case, the learned Single Judge has dismissed the application for review not on the ground of want of jurisdiction but on the finding that there was no force the review application.
9. In the other case relied upon by the learned counsel namely Shah Muhammad v. Ghulam and another (PLD 1970 SC 196) the question of review was not involved. On the other hand, the dispute was a to whether the time spent by a person in prosecuting the application under Order 9, Rule 13, C.P.C. Should be excluded while filing an application for review. It may be stated to the credit of the learned counsel that there are certain observations in the judgment to which he brought to our attention which lends support to the proposition that the time spent in filing an application for review may be excluded but those observations cannot be considered as ratio decidendi and in any case, cannot be given any preference over the latest declaration of law in the ease of Cantonment Board, Rawalpindi v. Muhammad Sharif through Legal Heirs (PLD 1995 SC 472) and the earlier judgments of the Supreme Court in Kh. Muhammad Afzal and another v. Sh. Muhammad Sadiq and others (1988 SCM R 179) and Ahmad Din v. Mst. Rasul Bibi (PLD 1968 SC 213).
10. The learned counsel for the appellants has also placed on record a copy of the order of Supreme Court dated 14-7-1990 in the case of National Bank of Pakistan v. Dr. Riaz ul Hassan and others (C.P.S.L.A. No, 1194/88). That order is of no avail to the appellants as it does not decide the case but only grants leave to appeal after condoning the limitation subject to all just exceptions at the time of hearing of appeal.
In view of above, relying upon the latest pronouncement of the Supreme Court in Cantonment Board, Rawalpindi v. Muhammad Sharif through Legal Heirs (PLD 1995 SC 472) we hold that the time spent in prosecuting the application for review cannot be excluded while computing limitation for filing this appeal. Accordingly C.M. 1/97 is rejected and the appeal is dismissed as barred by time.