ABDUR REHMAN KHAN, J.---This appeal with leave of the Court impugns legality of the judgment delivered in revision by a learned Judge of the High Court on 23-9-1992 and also the judgment dated 5-4-1993 passed in review petition.
2. Respondent instituted suit for declaration with a prayer of permanent injunction in respect of the disputed land and also for further relief of Cancellation of the deeds allegedly executed in favour of the defendant which affected his Proprietary rights in the disputed land. The suit was contested by the appellant/defendant who denied ownership over the suit property.
3. The learned trial Court decreed the suit and that judgment was confirmed in appeal by the Appellate Court and in revision by the High Court on 23-9-1992. The appellant then challenged the correctness of the High Court judgment passed in revision through review petition which was dismissed on 5-4-1993.
4. The learned counsel representing the respondent raised preliminary objection that the Civil Petition has been filed after 9 months of the order dismissing the revision petition and is, thus, time- barred. It was clarified that the revision petition was dismissed on 23-9-1992, but instead of challenging it through. Civil Petition in this Court the appellant preferred to file review petition against it on 11-12-1992, which was dismissed on 5-4-1993, and then this petition was moved to challenge the orders that were passed in revision and review. It was argued that the order passed in revision has obtained finality as it was not challenged in time and by the time the Civil Petition was filed, the requisite time had already expired but no application for condonation of delay was ever submitted. He submitted that time spent in proceedings in review petition cannot be excluded in computing the period of limitation. The learned counsel placed reliance in support of his points on the following judgments:--
(i) Ghulam Hussain and another v. Kanwar Ashiq Ali Khan and another PLD 1980 SC 198.
(ii) Pir Muhammad v. Education Town Cooperative Society Ltd., Lahore 1982 SCM R 995.
5. The learned counsel for the appellant while replying the preliminary objection referred to page 175 of the paper-book containing leave granting order and pointed out that there was mention of misreading and non-reading of evidence while deciding the revision petition which according to him justified filing of the review petition. We find that this reference is irrelevant as it has no relevance with the point of limitation agitated from the respondent's side. Learned counsel for the appellant then argued that the judgment reported as PLD 1980 SC 198, has not laid down correct law as it has overlooked the fact that review is substantive right having been conferred by section 114 and Order XLVII, C.P.C., therefore, he was of the view that the time consumed in prosecuting the reveiw petition was to be excluded from reckoning the period of limitation. He relied on (Raja)
Indrajit Pratap Bahadur Sahi v. Amar Singh and others AIR 1923 Privy Council 128 and Behari Lal and another v. M.M. Gobardhan Lal and others AIR (35) 1948 Allahabad 353 to support his stand. The learned counsel in the end submitted that the judgment passed in revision was wrongly challenged in this petition and that he would not press this appeal against the said judgment.
6. There is no denying the fact that the right of filing review petition is substantive right as it has been allowed by section 114 and Order XLVII, C.P.C. But the crucial point that arises for determination in this case is 'whether non-availing the remedy available under the law against the basic order and instead prosecuting the review in the same Court would entitle the petitioner to the benefit under Section 14 of the Limitation Act or in other words the time so spent can be excluded from computing period of limitation. The answer would be in the negative in case the review petition is dismissed on the grounds other than lack of jurisdiction. It has been so 'held in PLD 1980 SC 198, as the following portion of the judgment indicates:-- "The present petition against the basic order of the High Court dated 14-12-1977 is barred by 395 days and there is no application nor prayer either for condonation of delay or to set aside that order as such When confronted, with this situation the learned counsel argued that the present is a petition against the order dated 12-2-1978 refusing to review the previous order dated 14-12-1977 and in its own turn is within limitation qua that order. This may be so but while seeking leave to appeal against order refusing to review the main previous order, in fact the object of the petitioner is to seek vacation of the said previous order which by efflux of time has become final. The fact that in review the Court further affirmed the aforesaid order is immaterial inasmuch as a refusal to review the same will not give a fresh period of limitation to challenge it. In this peculiar situation they cannot be allowed to bypass it by simply pleading that the present petition is against order refusing to review the same because while stating so their intention is to point out errors and mistakes in the basic order which were sought to be removed through a review application but which failed. There may be cases where for instance petition of review may be refused merely for want of jurisdiction in which of course a petition may lie but will be on ground of refusing to exercise jurisdiction vested in a Court by law on the ground that it has no jurisdiction whereas in fact and in law it had such jurisdiction. In those cases a petition against refusal to review will not be a petition directly or indirectly against the main previous order on merits but only against the order in review itself. The position in the instant case is, however, different. Here the question is not of lack of jurisdiction of the High Court to entertain review, but after entertaining it refusing the same on the ground that no case for review on merits exists, such decision will essentially compel a suitor to challenge the previous order itself to point out the mistakes allegedly existing therein, which exercise obviously cannot be resorted to if the period of limitation for challenging the main previous order has run out and because you cannot do that indirectly which you cannot do directly."
' It has been laid down in 1982 SCM R 995: "There is no ground to condone the delay in filing the petition against the judgment delivered in the Regular Second Appeal. Learned counsel for the petitioner has submitted that he should be allowed the benefit of section 14 of the Limitation Act. Section 14 of the Limitation Act is not attracted to the facts of this case because the review petition was not dismissed on account of a defect of jurisdiction, or other cause of a like nature.'"
7. It is, thus, obvious that the law enunciated in these two precedent cases fully apply to the present case. On the other hand the judgments relied on by the appellants' side are not relevant. The submission of the appellant's counsel that he does not press the appeal against the basic order dismissing the revision petition would not advance his case at this point of time as the said order would be a hurdle in the way of the appellant to get the required relief as by efflux of time that had obtained finality.
8. We, therefore, hold that the Civil Appeal is time-barred and dismiss it as such without discussing the merits of the appeal. Parties would, however, bear their own costs.