Through the instant civil revision petition the petitioner, Kashmir, has called in question the correctness and legality of the judgments and decrees, dated 22-6-1992 and 2-10-1994 recorded and passed by the learned Additional Civil Judge-I, Mardan and learned District Judge Mardan respectively and has prayed for the dismissal of the suit of the respondents.
2. The breviate of the instant matter is that Sher Bahader son of Muhammad Amin predecessor-in- interest of the respondents instituted a Civil Suit bearing No.58/1 on 18-1-1986.Whereby he sought the ejectment of the petitioner (defendant No. 1 in the plaint) from the suit house detail-fully described in the plaint and has also prayed for the recovery of rent at the rate of Rs.50 per month for the period from 1-1-1983 to 31-12-1985 and in the alternative possession was also sought.
3. As per averments of the plaint, the plaintiff claimed the ownership of the suit house and the defendant No. 1 was said to be the tenant of the plaintiff for five years preceding the filing of the suit. That the defendant defaulted the payment of rent and was also causing damage to the suit house intentionally and as such he was liable to ejectment from the suit house. It was also stated that in case of refusal of the defendant to admit the ownership of the plaintiff then decree for possession was solicited.
4. On' summoning the defendants, only defendant No. 1 i.e. The petitioner appeared while the rest were proceeded ex parte. He submitted the written statement and the pleading of the parties generated the following issues:-- "Issues:
(1) Whether the plaintiff has got a cause of action?
(2) Whether the plaintiff is estopped from suing?
(3) Whether the suit is bad in its present form?
(4) Whether the defendant is owner in possession of the house in dispute through its allotment in his name by the Settlement Department, if so, its effect?
(5) Whether the defendant is entitled to recover special cost under section 35-A, C.P.C. From the plaintiff, if so, to what extent?
(6) Whether the defendant has made improvements in the suit house if so, to what extent and with what effect?
(7)Whether the plaintiff is owner in possession of the suit house?
(8) Whether defendant No. 1 is tenant in the suit house on payment of rent of Rs.50 per month on behalf of the plaintiff?
(9) Whether a sum of Rs.1,800 as agar of rent of three years regarding the suit house is outstanding against the defendant, if so, its effect?
(10) Whether defendant No. 1 is rent defaulter and he is causing damage to the house in dispute intentionally and deliberately and as such he is liable to ejectment?
(11) Whether the plaintiff is entitled to the order of ejectment as prayed for?
(12) Whether the plaintiff is entitled to the decree for the recovery of Rs.1,800 as prayed for?
(13) Whether in the alternative plaintiff is entitled to the decree for possession of the suit house as prayed for?
(14) Relief.
5. After recording the evidence of the parties and at the conclusion of the trial the learned trial Court held that the plaintiff had failed to produce any rent deed or other documentary evidence in support of his claim that the defendant-petitioner was a tenant in the suit house and as such the relationship of the landlord and tenant, having not been established through evidence, was not accepted by the learned trial Judge while dealing with Issues Nos. 8, 9 and 10 in his judgment.
However, on the strength of his discussion on Issues Nos. 7 and 13, while taking into consideration and accepting a registered exchange deed bearing No. 493 attested on 9-5-1913 photo copy Exh PW1/1, the learned trial Judge held that the plaintiff is the owner of the suit house and defendant has no concern with it which entailed the consequences of passing of a decree for possession in favour of the plaintiff-respondent against the petitioner.
6. Aggrieved by the judgment and decree of the learned trial Court the petitioner preferred an appeal in the Court of learned District Judge, Mardan which also could not succeed in-earning any success and was consequently dismissed on 2-10-1994.
7. The learned counsel appearing on behalf of the petitioner has zealously argued that the appeal of the petitioner was wrongly dismissed on purely a legal ground. The ground was that after the death of Sher Bahader (plaintiff) his legal heirs were brought on record vide order-sheet No. 25, dated 16-1-1986. The decree was passed on 22-6-1992 but by filing the appeal the two legal heirs of Sher Bahader namely, Sher Amin and Mst. Dilnashin who were the decree-holders were not made as a party in appeal and while relying on 1994 SCM R 1134 the appeal was dismissed.
The learned counsel vehemently argued that the learned District Judge should have accepted the two applications of the petitioner which were filed for the purpose of arraying the omitted decree- holders as respondents and this mere technicality should not have been prevailed with the learned District Judge for dismissal of the appeal of the petitioner. He relied on the judgment of the august Supreme Court in case of Said Muhammad and others v. M. Sardar and others (PLD 1989 SC 532).
Carrying forward his arguments .He submitted that the omission to array the omitted decree- holders was due to the fact that the copy of judgment obtained by the petitioner was illegible to the extent of reading the names of the legal heirs of Sher Bahader.
8. The respondent No. 1 Amir Bahader in his own capacity and as attorney for respondents 2 to 11 present in the Court stated that the learned counsel which he had engaged has died and because of his poverty he is unable to engage another counsel and has left his matter to the judgment of the Court.
9. I have heard the arguments of the learned counsel for the petitioner and have gone through the record. The contention of the learned counsel has got no force because the mere illegibility of the part of the copy of the judgment containing the names of the legal heirs of deceased Sher Bahader is not a ground for curing the legal infirmity the appeal was fraught with. The difficulty of the alleged illegibility could conveniently be overcome by making a petty exercise of examining the original record which the petitioner has not bothered to undertake. Besides this the submission of the learned counsel is not in accord with the applications dated 13-9-1993 and 19-3-1994 filed by the petitioner in the Appellate Court for the purpose of impleading the omitted decree-holders. In both the said applications no such ground has been mentioned which leads me to believe that the point agitated by the learned counsel was merely subsequent strategised device to justify the negligence of the petitioner.
10. The learned counsel has ventured to seek asylum in the cited judgment of the august Supreme Court but the said judgment being distinguishable on material points cannot be invoked for his protection. In the cited case an application under Order XLI, Rule 20, C.P.C. To implead Abdul Ghafoor the committed respondent was male and alongwith that an application for condonation of delay under section 5 of the Limitation Act was also filed buy iii the instant case admittedly no such application for condonation of delay has been filed by the petitioner. In this regard the learned counsel was asked for still another serious omission to file an application for the condonation of delay occurred in filing the two applications dated 13-9-1993 and 19-3-1994 for the impleadment of the omitted decree-holders. The learned counsel could not articulate any account of the least convincibility and has rather admitted that no application has been filed. It is pertinent to mention that the appeal was filed on 28-7-1992 whereas the above two applications were filed on 13-9-1.993 and 19-3-1994 which are extremely time-barred.
11. The law of limitation produces an effect of the extinguishment of a right of a party when limitational lapses occur and no sufficient cause for such lapses, delay or time-barred action is shown by the party guilty of delay. In the instant matter the delay in filing a valid appeal has created a valuable right tern favour of the respondents which cannot so lightly be taken away unless the petitioner would have come forward with an application for condoning the delay by pleading sufficient cause. Obviously such legal obligation has not been discharged by the petitioner.
12. The ratio decidendi of the judgment of the august Supreme Court in case of Mst. Zubaida Imran v. Ch. Abdul Sattar and others (1994 SCM R 1134) has rightly been applied by the learned District Judge iii the instant case. After going through the record the law on the subject, I am of the firm view that the judgment and decree alongwith reason of the learned District Judge do' not suffer from- any legal infirmity. Therefore, by upholding the judgments and decrees of both the Courts below I dismiss this revision petition as without force. No order as to costs.