' The petitioner (defendant) purchased the suit land (detailed in the plaint) vide registered sale deed dated 6-7-78. The respondent (plaintiff) has instituted a suit on 26-4-79 seeking possession of the same against the petitioner by exercising his right of pre-emption.
2. The petitioner contested the suit and various issues were framed by the learned trial Court, keeping in view the pleadings of the parties:--
(1) Whether the transaction in question is pre-eatable? OPP
(2) If issue No, 1 is proved whether the plaintiff has superior right of preemption against the defendant? OPD
(3) Whether the sale price of Rs,2,000 was fixed in good faith or actually paid by the defendant vendee? OPD
(4) If issue No,3, is not proved what was the market value of the suit land at the time of its sale? OPP
(5) Whether the plaintiff is estopped by his own act, and conduct to give the present suit? OPD
(6) Whether the defendant made any improvement over the suit land if so to what effect and with what effect? OPD
(7) Relief.
3. The suit was decreed by the learned trial Court on 18-1-1984 and the appeal against the same was also dismissed by the learned District Judge on 18-11-1984. Against these two judgments and decrees, petitioner filed an instant revision petition on 18-3-85.
4. The learned counsel for the respondent on 6-5-1985, raised a preliminary objection to the effect that R.S.A. Was competent and the present civil revision petition was not maintainable. The Hon'ble Judge while confirming the interim injunction, observed that this objection raised by the learned counsel for the respondent would be taken up for consideration at the time of bearing the main revision petition which was fixed for hearing on 26-6-1985. Vide judgment announced on 8-2-1987 the revision petition has been accepted by this Court and the impugned judgments and decrees of the learned Courts below were set aside and the respondent's suit was dismissed (the date of hearing as mentioned on the opening sheet of the judgment was 30-6-1985.)
5. Against the aforesaid judgment, the respondent filed a C.P.S.L.A. In the Supreme Court and the leave was granted to consider the question that revision petition was not maintainable as a second appeal lay to the High Court from the judgment of the District Judge as the appeal had not been filed, the appellant (now the respondent) was deprived of his right to object to the non- maintainability of the appeal on the ground of limitation and the C.P.S.L.A. Was converted into a regular Civil Appeal No, 1096/90 which was ultimately accepted by the Hon'ble Supreme Court vide its judgment dated 17-11-1992 and the judgment of this Court was set aside and the case was remanded for fresh hearing by this Court with particular reference to maintainability of revision petition and the point of limitation involved. Hence the present revision petition is again before this Court for its final disposal. The petitioner moved C.M. 2-C/93 dated 26-4-1993 for treating the instant revision petition as R.S.A. Which is allowed subject to all just exceptions.
6. Another application bearing C.M.131-C/93 dated 16.2-93 has also been moved seeking condonation of delay in filing the R.S.A. This application has been hotly contested by the learned counsel for the respondent who also submitted written reply to this application.
7. Learned counsel for the petitioner (now will be called the appellant) submitted that there was a bona fide mistake in filing the revision petition instead of regular second appeal as the amendment was introduced in section 102(b), C.P.C. Vide Ordinance of 1980 enhancing the jurisdictional value from Rs,2,000 to Rs,50,000 and in this contest an impression was also gathered from a judgment reported in 1981 CLC 527 titled Ahmad Yar and another v Muhammad Aslam decided on 2-3-1981 wherein the regular second appeal was converted into a revision petition as the same was not found maintainable in the presence of the said amendment. Learned counsel also referred to judgment published in 1990 CLC 1439 titled Ghulam Rasool and others v Karim Bakhsh and others to support his arguments.
8. Learned counsel for the respondent has vehemently argued that there is no sufficient cause to condone the delay. Appeal is time-barred by 14 days and no affidavit of the learned counsel for the appellant is available on the file in support of the application under contest. He relied upon the following judgment PLD 1966 (W.P.) Pesh. 1970, 1994 SCM R 987, PLD 1991 SC 957.
9. I have considered the valuable arguments of the learned counsel for the parties. From the record I find that as soon as the respondent appeared in this Court on 6-5-1985 in response to a notice received by him, immediately an objection was taken that R.S.A. Was competent instead of revision petition. It was so observed by the Hon'ble Supreme Court in its judgment dated 17-11-1992 that as the judgment of the High Court has been announced after prolonged delay, this objection might have escaped from the notice of the Hon'ble Judge while dictating the judgment, so it was on 6-5- 1985 the objection was taken for the first time with regard to the maintainability of the revision petition. It was also observed in the judgment by the Hon'ble Supreme Court that by Ordinance of 1980 instead of Rs,2.000. Rs,50,000 was added, therefore, at the time of filing the suit in the year 1979 section 102, C.P.C. Provided for a second appeal in case the subject matter of the original suit exceeds Rs,2,000 reference was made to PLD 1981 SC 553. It has been held by the Hon'ble Supreme Court that there can be no cavil with the proposition of law that the parties were entitled to the right of appeal vested in them at the time of institution of the suit and this proposition has been upheld by the Supreme Court in the above judgment i,e, PLD 1981 SC 553. It was further observed as under:-- "Position thus crystallizes that the respondent had the right to file a second appeal and no revision lay under section 115, C.P.C. As held in PLD 1970 SC 506 a revision does not lie where the order is appealable with the District Court. Even in cases where a second appeal lies to the High Court revision will not be maintainable against that judgment and decree."
It is to be noted that no retrospective effect has been given to the amendment made in the section 102(2), C.P.C. Vide Ordinance of 1980 and as such second appeal will be competent in suits instituted prior to this amendment where the value of the subject-matter of the suit exceeds 2,000 rupees. Admittedly the value in the suit for the purposes of court-fee and jurisdiction was Rs,9,000.
Seen from any angle the second appeal was competent, instead of revision petition.
10. Now I have to see whether there is any sufficient cause to condone the delay of 14. Days (admitted by both the parties). The ground taken by the learned counsel for the appellant is that a bona fide mistake occurred because of the judgment 1981 CLC 527. I have gone through the judgment and found that neither the impact of amendment in section 102(2), C.P.C. Has been duly examined in its true perspective in this judgment nor there was any occasion for the Hon'ble Judge to examine the same as the appeal riled in that case was treated as a revision petition (without contest) for which at that time no limitation was prescribed under the law of limitation. This being so this judgment will not be of much help to the learned counsel for the petitioner. Similarly the judgment reported in 1990 CLC 1439' could not be advantageously used at this stage. Moreover no affidavit of the learned counsel in support of the application has been submitted (as the alleged bona fide mistake was attributed to the learned counsel) and it has been held in a number of cases that any mistaken advice of a learned counsel coupled with negligence would not provide a valid excuse for condonation of delay in filing the appeal. Moreover each and every day in filing the appeal must have been explained but unfortunately this was not done in this case. I must add that since the question of maintainability of revision petition raised by the learned counsel for the respondent at the very outset on 6-5-1985 was taken, it was obligatory upon the learned counsel for the petitioner to examine this question and should have immediately filed an application for condonation of delay explaining the circumstances under which he chose to file a revision petition instead of second appeal. Unfortunately this element is also missing.
11. For the observations/reasons mentioned in the preceding paras. I find support from the following judgments:-- ' PLD 1958 (W.P.) Lah. 325 "Foodstuff Supply Company v Wan Cotton Oil Mills and 2 others."
' PLD 1966 Lahore (DB) 319 "Aun Muhammad v Rehabilitation Commissioner."
1968 SCM R 117 "Allah Bakhsh v Custodian of Evacuee Property, West Pakistan, Lahore and others."
' PLD 1971 Lahore (DB) 332" Wali Muhammad and 2 others v Inam-ul-Hassan Khan and 5 others."
1986 CLC 2057 (Lahore) "Mst. Ghulam Fatima v. Fazal and others."
1994 SCM R 987 Muhammad Manzoor v. Ghulam Murtaza."
12. In view of the above discussion, the application for condonation of delay in filing the appeal is rejected as there is no merit therein, resultantly the appeal is also dismissed being time-barred. No order as to costs.