IFTIKHAR MUHAMMAD CHAUDHRY, J.-- Petitioner Mst. Sabira Bi daughter of Ghulam Muhammad in instant petition has prayed for leave to appeal against impugned judgment dated 14th October, 1999 passed by Lahore High Court, Rawalpindi Bench.
2. Succinctly relevant facts of instant case are that petitioner instituted a suit for possession through right of pre-emption against respondents in respect of property details whereof were given in the plaint. She successfully established her claim, therefore, a decree was passed in her favour. However, in appeal Additional District Judge Jhelum reversed the finding of the Trial Court as such Civil Revision was preferred by the petitioner before Lahore High Court which has been dismissed vide impugned judgment being barred by 10 months. Relevant Para from the impugned judgment is reproduced hereinhelow:- "8. The impugned decree was passed on 10.1.1996. The period of limitation prescribed for tiling the revision is 90 days. Copy of the impugned judgment and decree was provided to the petitioner on 23.1.1996. The revision was instituted in the office of this Court on 16th April, 1996 within the prescribed period of limitation. The office raised objection on the very same day. The learned counsel for the petitioner did not contact the office to know whether it was received in the office and duly passed. The office display a list of 'under-objection cases on the notice hoard, outside the branch. It is not duty of the office to send hack the petition to the outstation counsel. It was the duty of the learned counsel for the petitioner to check the fate of the revision petition whether it was found in order by the office or not. From 16.4.1996 till 17.2.1997, for 10 months the petition did not bother to enquire from the office to know about its fate. Her learned counsel was equally not diligent in pursuing the matter. He failed to meet the objection within two days from 16.4.1996. The petition is barred by 10 months. There is no application for condonation of delay. It is well-settled law that the party seeking condonation of delay, has to explain delay of each day. The proper and complete revision petition having been filed on 17.2.1997 is hopelessly barred by time and is hereby dismissed without going into merits of the case.
3. Learned counsel for petitioner argued that Civil Revision was presented by the petitioner within the stipulated period of 90 days-but same was treated barred by time because petitioner's counsel could not remove office objections for a period of 10 months since he did not contact the office, therefore, for this reason revision Was found to he barred by time.
4. Whereas learned counsel for respondents contended that it was duty of petitioner's counsel to have removed office objections within the time fixed by office i.e. 2 days. As per his contention, because the petitioner had shown negligence in complying directions of the office, therefore, petition being barred by time has been rightly dismissed vide impugned order.
5. We have heard counsel for parties at length and have through impugned order carefully. Perusal of operative Para suggests that against appellate- judgment/decree dated 10th January, 1996 civil revision was presented in the office of High Court within the prescribed period of limitation i.e. 90 days under section 115, ('PC. It seems that petition was not placed before the Court because office raised objections and in the . Meantime the counsel for petitioner also did not contact the office to know about fate of the petition. However, a list of under objection cases was displayed on Notice Board outside the Branch including the case in hand. Because even then the counsel for petitioner did not appear, therefore, case was placed for hearing before Court who treated it to he barred by time from 16th April, 1996 till 7th February. 1997 for a period of 10 months.
6. The question emerges for consideration is as to "whether on account of non-removing objections raised by office the petition could he treated barred by time or in such like situation office may have enlisted the 'case for non-prosecution before the Court."
7. Learned counsel for petitioner vehemently argued that is no provision in Civil Procedure Code as well as High Court Rules and Orders empowering the Court to treat the petition beyond limitation after entertaining the same notwithstanding the fact whether the objections so raised were removed or not.- He further argued that in such like situation office may have issued notice to the counsel under acknowledgement due calling upon him for removing objections particularly a specific notice for those Advocates who are not practicing at the principal registry or branch registries of the High Court ought to have been issued. Reference was made to the High Court Rules and Order, Volume V, Chapter-11, Rule 8. It may he noted that as per this rule parties and their Advocates, Vakils, Mukhtars or agents are required to attend the Court on the day or dates for which their cases are set down and on subsequent dates unless their cases are disposed of or otherwise. The Rule further provides that intimation of the date fixed in a case will he sent by Registered Post Card (A.D.) to such parties who are not represented by a counsel. In our opinion in the given circumstances of the case this Rule is not attracted firstly for the reason, that petitioner was represented by an Advocate, therefore, office had no obligation to inform the party by sending registered post card (A.D.). Secondly that it was the duty of petitioner's counsel to attend the Court on the day when case is set down. However, distinction with reference to this provision would be that it does not lay down that after filing of petition Advocate was required to attend office of the Court. We enquired from learned counsel appearing for respondents to point out any other provision from High Court Rules and Orders which casts a duty upon the Advocate to attend office after tiling of petition but he failed to do so. However, his contention was that under Order XLI, Rule 3, CPC memo. Of petition can be returned to petitioner for the purpose of being amended within the time to be fixed by the Court or he amended then and there. In this context our opinion is that this provision, is not helpful to the learned counsel because it deals with rejection or amendment of memorandum of appeal and the Court can reject memo. Of appeal. Inasmuch as if this provision is applied in principle to cases pertaining to revisions even then the office will place the case bethre the Court for purpose of rejection or amendment of the memorandum, therefore, on considering both these provisions we are of the opinion that in such like situation where the objection is not being removed within the ;tipulated period the office may fix the case bethre Court after notice to the party or counsel for non-prosecution. In instant case admittedly no notice was served upon petitioner's counsel for his appearance and removing office objections.
8. Learned counsel for petitioner stated that in somewhat identical situation this Court as well as the High Courts has hen rejecting the petitions or appeals treating them to he barred by time. In this context he placed reliance on AIR 1934 Peshawar 9.
It may he noted that this case pertains to the period prior to 1992 when there used to he no limitation for tiling of revision petitions. However, the facts noted in the case as well are distinguishable because in the case revision was tiled in the office within a period of three months but it was returned to learned counsel for removal of certain objections within a specified period but he refiled the revision after 8 months; whereas in the instant case memo. Of revision was not returned to the counsel for petitioner because allegedly he did not contact the office. Inasmuch as subsequently the case was included in the list alongwith the cases which were pending under objections but even then memo. Of petition was not returned to petitioner's counsel and ultimately it was fixed in Court and learned Judge in Chambers of Lahore High Court dismissed the same treating it as barred by time because for a period of 10 months the objection was not removed.
Thus on account of this distinction the judgment relied upon is of no help to him.
Learned counsel also relied on 1992 CLC 296, PLD 1996 Lahore 158, PLD 1996 S.C. 704 and 1997 SCMR 1224 but in our opinion these judgments are distinguishable on facts from the case in hand because in the reported judgments the memos. Of petitions/appeals were handed over by Deputy Registrar to the Advocates for the purposes of removing office objections within the time fixed for this purpose but they did not adhere to the time and retiled petitions etc. After considerable delay.
Thus the Courts concluded that in such situation the petitions are time-barred; whereas in the instant case the prominent distinction is that memo. Of petition was never handed over to the counsel for petitioner fin removing office objections Mainly for the reason that he did not contact office after tiling of petition. Inasmuch as when subsequently the case of petitioner was included in the list of cases .Displayed on the Notice Board for removal of the objections within the period mentioned therein. Again counsel did not contact office, therefore, the memo. Of petition was not delivered to him, as such objections were not removed. At this juncture observations of this Court from the case of Muhammad Siddique and another Vs. Syed Zawar Hussain Ahidi and 9 others (PLD 1976 S.C. 572) being beneficial are reproduced hereinbelow:- "The word "sues" according to its ordinary connotation means institutes and according to rule 10, Order IV, C.P.C. a suit is instituted by the presentment of the plaint to a Court of Competent jurisdiction. Therefore, the suit is instituted as soon as the plaint is presented and it is accepted by the presiding officer any defect notwithstanding."
Thus in our opinion there was no occasion for learned Judge of Lahore High Court to come to the conclusion that Civil Revision was time-barred.
9. Learned counsel for respondents further argued that under section 115(2), CPC it was obligatory upon petitioner to have furnished copies of pleadings, documents and order of the subordinate Court alongwith memo. Of petition and due to non-compliance of this provision petition will, not- be liable to be entertained and Court is competent to dismiss the same. So far as this legal provision as referred by the learned counsel is concerned, there is no doubt about it but with reference to proposition under discussion in the instant case, it is suffice to observe that if a revision petition suffers from defects i.e. Non-filing of pleadings etc. Still it can not he dismissed being barred by time and in such situation, at the best the petition could he treated as not maintainable. It is important to note that this Court had always emphasised for decision of cases on merits instead of disposing of the matters on hyper-technical grounds. Inasmuch as in some of the cases on account of non-payment of Court-fee the proceedings have not been found to he non-maintainable without an opportunity to the other side to get the relief for such technical reason and to meet this objective has been provided for making good deficiency of Court-fee. In this behalf judgment in the case of Muhammad Siddique Khan and two others Vs. Abdul Shakur Khan 'and another (PLD 1984 S.C. 289) may be referred. Relevant Para in this behalf is reproduced hereunder:- "One more conclusion-that-can he drawn from the foregoing discussion is that the failure to supply proper Court-fee in the context of the Court-Fees Act and section 149 and Order VII, Rule 11(c) can at best he equated with non-prosecution and not with non-institution or presentation of the matter/document nor with the bar of limitation. Accordingly, considerations in that behalf for exercise of discretion under sections 148 and 149 and the relevant provisions of Court Fees Act should he different from those under section 5 of the Limitation Act, which in any case does not apply to the suits. To apply the latter to the limner cannot he justified on any rule of interpretation..
This is what was thought as the proper approach by the Lahore Full Bench in the case of Jagat Ram (1938) when discovering the meaning of bona fides from the General Clauses Act rather than applying the Limitation Act. In the light of these additional reasons on this subject the rule laid by this Court in the case of Mst. Parveen (1983) and Shahna (1983) is re-affirmed. For all these reasons it is accordingly held that when considering the options for exercise of discretion for grant of time for supply of deficiency in the Court-fee, considerations relevant to bar of limitation shall not he taken into account."
10. Thus in view of above discussion we are inclined to hold that once a suit, appeal or revision has been presented before the authorised officer of the Court within the prescribed period of limitation, it cannot be treated barred by time for the reason that the office has noted defects in the proceedings which have not been removed by the concerned party or his Advocate, and in such like situation the Presiding Officer of the Court at the best can consider the maintainability of proceedings in view of the provisions of Order VII, Rule 11 or identical provisions available in the Code of Civil Procedure or the law under which the proceedings were instituted. It is also important to note that parties/Advocates are also not absolved from their duty to remove the office objections within the stipulated period prescribed by the concerned authorised officer subject to the condition that specific notice has been served upon the party or Advocate to do the needful. Even if after notice the defect is not removed the case shall he listed for non-prosecution before the Presiding Officer who may in his discretion allow time to comply with objections of office.
11. In view of above discussion petition is converted into appeal, consequently impugned order dated 14.10.1999 passed by Lahore High Court, Rawalpindi Bench is set aside and case is remanded to the High Court for disposal of the matter in accordance with law. Parties are left to bear their own costs.