Faizullah and 3 others petitioners/plaintiffs filed suit against Rustam and 11 others in the Court of learned Civil Judge/ illaqa, Qazi Dir Bala for declaration etc. The said suit was resisted by the respondents/defendants by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties dismissed the suit vide judgment and decree dated 31-1-2000. Feeling aggrieved with the said judgment and decree petitioners filed Appeal No,8/14 of 2000 in the Court of learned Additional District Judge/Izafi Zillah Qazi, Dir Bala, which was also dismissed vide judgment and decree dated 5-7-2001. Being not contented with the judgments and decrees of the Courts below, the petitioners have filed the revision petition in hand.
2. Mr. Ghafoor Ahmad Qureshi, learned counsel representing the petitioners argued that the learned Appellate Court has failed to decide the appeal in accordance with Order 41, Rule 31, C.P.C.
And the impugned judgment/decree was passed through a non-speaking order which is not maintainable in the eyes of law. Reliance in this regard was placed on Sharaqat Iqbal and others v.
Ghulam Rasool and another PLD 2001 Lah. 139.
3. On the other hand Mr.Alamzeb Khan, the learned counsel representing the respondents argued that the revision petition was barred by time.
4. Proviso (2), section 115, C.P.C. Provides a period of 90 days from the date of decision. The period required for obtaining certified copies under this section could not be excluded while counting the limitation period. Reliance in this regard was placed on 1998 MLD 253.
5. I have heard the learned counsel for the parties and perused the record.
6. Before adverting to the merits of the cases it would be appropriate to decide as to whether the revision petition in hand was filed within the time prescribed by law or not. The perusal of the record shows that the impugned judgment/decree was passed by the learned Appellate Court on 5-7-2001. The petitioner applied for grant of certified copies on 26-7-2001. The same were handed over to him on 26-8-2001 and the revision petition was filed on 1-11-2001.
7. The argument of the learned counsel for the respondents that as per proviso 2 of section 115, C.P.C. The revision petition was to be filed within 90 days from the date of decision and period required for obtaining certified copies could not be excluded while containing the period of limitation has no force at all.
8. By amendment Ordinance X of 1980 a proviso was added to subsection (1) of section 115, C.P.C.
Which is reproduced hereunder:-- "Provided that where a person makes an application under this subsection, he shall, in support of such application, furnish copies of the pleadings, documents and order of subordinate Court, and the High Court shall except for reasons to be recorded dispose of such application without calling for the record of the subordinate Court."
Through this amendment the whole burden is placed on the party filing the revision to file copies of pleadings, documents and orders of subordinate Courts with the revision petition, so that the burden which previously lay with the Court of calling for the record of the lower Court, before disposing of the petition was basically dispensed with. Before the above mentioned amendment a duty was cast on the revisional Court to call for the lower Courts record where it considered it necessary for the disposal of the case or not. The proviso that has been added in 1980, though the official duty has been reversed, the discretion of this Court to call for the record of the case of the lower Courts in order to determine the same matter, has, in no way, been taken away. The proviso only lays down a strict rule of procedure, which compels the party to ensure that the copies of all pleadings, documents, orders etc. Which are relevant for its case are filed in the first instance, so that the Judge dealing with the case has all the material before him. In genuine cases, a party may consider that certain documents are not necessary for determination of the matter in controversy arising in his revision and may not file such documents. In such a case if the Judge considers that such documents were not required, he may dispense with the attachment of those documents.
However, the Court, on a fair appraisal of the matter, was to consider otherwise, the Court could call upon the party to file the remaining documents within a reasonable time before dealing with the case. In cases where visual inspection of certain documents may itself become necessary even though copies of such documents may or may not have been filed by the party, the Court would be compelled to call for the record in order to personally inspect the documents concerned.
9. The question that arises here is that the copies of pleadings and documents and the decisions of the subordinate Courts against 'which the revision has been filed should be certified copies or a person filing revision could attach uncertified copies, the answer to this question is that person has to file certified copies of pleadings, documents and orders of the subordinate Courts. A similar question came up for hearing before the august Supreme Court of Pakistan in Riasat Ali v.
Muhammad Jaffar Khan and 2 others 1991 SCMR 496 wherein it was held:-- "As regards the second question, the words 'copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment', as appearing in Order XLI, Rule 1 of the Code of Civil Procedure which relates to appeals, have all along been treated, as certified copies, which interpretation over the years has assumed the force of law. In this connection an earlier ruling of the Lahore High Court, i,e, Riasat Ali Khan v. Mahfuz Ali Khan AIR 1929 Lah. 771 still holds the field. On the same analogy, the copies referred to in the proviso to subsection (1) of section 115 of the Code can also be treated as referring to certified copies."
10. For filing revision petition before the High Court an applicant is under the first proviso obliged to file certified copies of the documents, pleadings and the orders of the two Courts below.
11. A further proviso was added by Code of Civil Procedure (Amendment) Act VI of 1992 on 30-5- 1992 which is reproduced hereunder for convenience:-- "Provided further that such an application shall be made within 90 days of the decision of the subordinate Court."
12. Before adding the further proviso there was no period of limitation fixed for filing civil revision in the High Court. Moreover, there is still no period prescribed in the First Schedule to the Limitation Act for filing Civil Revision but it was to be filed diligently within a period of 90 days. By adding the above quoted proviso providing the period of 90 days, statutory recognition was accorded.
13. The law makers were still not satisfied, they felt necessity of further amendment in the second proviso. Through Act XIV of 1994, which was made effective from 31-7-1994, the following amendment was made:-- "Which shall provide a copy of such decision within three days thereof and the High Court shall dispose of such application within three months."
14. A minute study of the second proviso which emerged after the last amendment brought in 1994 shows that three new requirements were introduced namely:--
(i) Application (revision) shall be made within 90 days of the decision of the subordinate Court.
(ii) Subordinate Court shall provide copy of such decision within three days !Hereof.
(iii) High Court shall dispose of such application within three months. No doubt a period of 90 days was prescribed for filing application (revision) which period was to start from the date of decision of the subordinate Court, but it was made mandatory for the subordinate Court by using word "shall" to provide copy of such decision within three days thereof (decision). It has not been specifically mentioned that as to whether copy of such a decision was to be given within three days to aggrieved party or to all the parties because at the time of making of decision, the subordinate Court could not ascertain as to which of the parties was aggrieved, therefore, the analogy would be that copies of the decision were to be supplied to the parties. It is a matter of common knowledge that in most of the civil suits a number of parties runs in hundreds.
When we look at the load work of the subordinate Courts, it can be safely said that it is not possible for the subordinate Court to provide copy of the decision to each party. The practice of the Civil Courts also shows that none of the parties are given the copies of the decisions by the subordinate Courts. The only way left open to the person desiring to file revision petition is to get certified copies of documents, pleadings and orders of the subordinate Courts. Although in the first proviso attachment of the copies of the statements of the parties has been omitted but the parties are supposed to attach the certified copies of the statements of the parties also. The procedure to obtain certified copies from the subordinate Courts is that a party has to give application to the Copying Agency. The applicant is given a specific date, but it is again a matter of common knowledge that it takes months to obtain certified copies from the Copying Agencies. The question which again arises here is as to whether the time which is requisite for obtaining certified copies of those documents, pleadings and decisions/orders of the subordinate Courts is to be excluded from computing the period of limitation for filing revision petition, answer to this question is in affirmative for the reasons firstly: The applicant has to file certified copies of the pleadings, documents, orders of the subordinate Courts and statements of the parties. Sufficient time is consumed by the Copying Agencies due to heavy work load. If a person (applicant) is not given certified copies by Copying Agencies within a period of 90 days, he cannot be penalised for the lethargic attitude of Copying Agencies. Reliance in this regard is placed on Islamic Republic of Pakistan v. Messrs Conforce Limited and others 2001 CLC 1741. Secondly; if a party, despite his best efforts, fails to get the certified copies and attaches uncertified copies of the documents/pleadings with his revision petition, even then he has to seek the permission of the Court to allow him to place on record private reproduction of judicial record and to dispense with the supply of certified copies. The Court may or may not agree with the applicant. In case the Court refuses to allow a party to produce private reproduction of judicial record, as substitute for the certified copies, in such a case the party is to be directed to produce the certified copies of the judicial record i,e, the pleadings, documents or orders of the Subordinate Courts and the evidence of the parties but that too is to be done by the party within the prescribed period of 90 days. If the party fails to produce the certified copy within the stipulated period, the Court may decide the case on the record as it stands. If the Court, however, comes to the conclusion that visual inspection of the documents placed on record was necessary, in appropriate cases, the Court could call for the record also. It has been made mandatory for the subordinate Court to provide copy of its decisions within three days. Now the question that arises here is as to what shall be the consequences if the subordinate Court fails to provide copy of its decision within three days thereof to a party, the answer to this question is that a party cannot be prejudiced and should not suffer due to the act of the Court. Reliance in this regard is placed on the following Judgments:--
(i) Fida Hussain v. The State PLD 2002 SC 46;
(ii) Sajawal Khan v. Wali.Muhammad and others 2002 SCMR 134;
(iii) Muhammad Mansha's case 1999 SCMR 1782;
(iv) Mst. Maryam Haji and others v. Mrs. Yasmin R. Minhas and others PLD 2003 Kar. 148;
(v) Muhammad Bashir v. Mst. Nasrin Akhtar PLD 2003 Lah. 260;
(vi) Shafaqat Iqbal v. Ghulam Rasool PLD 2001 Lah. 139;
(vii) Muhammad Hussain v. Muhammad Afsar 2001 YLR 3280; (viii)Islamic Republic of Pakistan v.
Conforce Ltd. 2001 CLC 1741;
(ix) Sarah Malik v. Federation of Pakistan 2001 MLD 1026; and
(x) Namdar Khan v. Muhammad Akram Khan and 14 others 1993 SCMR 434.
16. The dicta laid down in the above quoted judgment are that a party cannot be prejudiced or penalised and it should not suffer if the Court fails to provide copy of its decision within three days as required by second proviso to section 115, C.P.C.
17. Even if copy of the decision is provided by subordinate Court to a person desirous of filing revision, the condition attached through first proviso that he shall in support of his application (revision) furnish copies of pleadings, documents and orders of subordinate Courts, again the application is put at the mercy of the Copying Agencies for obtaining certified copies of such documents.
18. Another question that arises here is as to whether the provisions of subsection (2) of section 12 of the Limitation Act would be applicable, answer to this question is in affirmative. Subsection (2) of section 12 of the Limitation Act, 1908 is reproduced hereunder for convenience:-- "(1)...
(2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgmentcomplained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed shall he excluded.
(4)...
(5)...
The perusal of the above quoted section of law shows that it restricted its application to filing of appeal and two kinds of applications i,e, applicationfor leave to appeal and application for review of judgment only. This subsection nowhere mentions the revision application. The omission of revision application from the subsection appears to be not accidental. There was nothing to prevent the legislation to mention revision application in the above quoted subsection if they so intended. The provisions of subsection (2) of section 12 of the Limitation Act was also not intended to apply for "second appeal" because the words "second appeal" do not find mention in the said subsection. Although while interpreting subsection (2) of section 12 of the Limitation Act a strict view was taken by various Courts that while computing period of limitation for filing revision application, time spent in obtaining copy of the impugned judgment/order/decree cannot be excluded, but while dealing with the period of limitation for filing "second appeal", the time spent for obtaining copy of Trial Court's judgment was excluded while computing period of limitation. A similar question came up for hearing in the following cases:--
(i) Muhammad Afzal Khan Lodhi v. Islamic Republic of Pakistan PLD 1968 Lah. 1205;
(ii) West Pakistan Province through the Collector, Muzaffargarh v. Sh. Nazir Ahmad PLD 1973 Lah.
403;
(iii) Kala v. Allah Dad PLD 1977 Lah. 376;
(iv) Pir Muhammad and others v. Lal Din PLD 1964 Lah. (W.P.) 461, and
(v) Amir Hussain Shah v. Umara and 11 others 1986 SCMR 800, in which it held:-- "In view of the law laid down by the Lahore High Court itself the time taken for obtaining the copy of the trial Court's judgment had to be allowed under section 5 of the Limitation Act as it was a mandatory requirement of the High Court Rules itself that the second appeal must be filed with a copy of the trial Court's judgment. If that period is allowed to the appellants their second appeals are within time and they are not required to further explain the delay taking place from 23-10-1976 to 5-11-1976. We accept all these appeals, set aside the dismissal of the Regular Second Appeal and remand the proceedings to the High Court for decision on merits as the delay has been condoned under section 5 of the Limitation Act. No order as to costs."
The superior Courts were conscious of the fact that no period of limitation was prescribed for filing revision petition in the First Schedule to the Limitation Act before a second proviso so introduced in section 115, C.P.C. In the year 1992 and that the provisions of sections 5 and 12 of the Limitation Act were also not made applicable by the law makers, but still keeping in view the interest of justice it was held that the High Court could ignore or may condone the delay in filing the revision petition or exercise its suo motu jurisdiction in appropriate cases. In Muhammad Yousaf and 3 others v. Khan Bahader through Legal Heirs 1992 SCMR 2334; it was held:-- "No doubt, persons applying for exercise of revisional jurisdiction before the High Court have to submit their applications within a certain time but that is not sacrosanct and the High Court in certain circumstances, ignore or either may condone the delay or exercise their jurisdiction suo motu."
19. Similarly in Government of N.-W.F.P. Through Chief Secretary and 3 others v. Abdul Malik 1994 SCMR 833 while relying upon the dicta laid down in PLD 1975 SC 678 and 1991 SCMR 496 it was held:-- "The above-quoted extracts from the above last two cases of this Court indicate that this Court has tacitly approved the practice that a civil revision is to be filed within 90 days and in case of delay the same is to be explained, though while considering the question of delay in filing of civil revision, the Court would be more liberal as compared to the approach of an application for condonation of delay of the limitation period, provided for in the First Schedule to the Limitation Act for the legal proceedings. In Muhammad Mian v. Syed Shamimullah and 2 others 1995 SCMR 69 it was held:-- "Revision even though filed beyond period of 90 days could, however, be entertained, if Court was satisfied as to the reasons for delay." Likewise in Riasat Ali v. Muhammad Jai-far Khan 1991 SCMR 496 it was held:-- "There is no period of limitation prescribed for the prosecution of a revision petition in the Limitation Act. The Lahore High Court has for many years adopted a thumb rule of 90 days within which revision petition should be filed, failing which the discretion may not be exercised in the petitioner's favour on grounds of unreasonable delay. However, revision petition even though filed beyond the period of 90"days can be entertained, if the Court is satisfied as to the reasons for the delay."
20. Keeping in view the dicta laid down in the above mentioned cases and the principles of propriety it can be safely held that time spent for obtaining copies of the pleadings, documents and orders of the subordinate Courts needs to be excluded for computing period of limitation for filing revision petition.
21. This takes me to the question of applicability of section 5 and subsections (1) and (2) of section 29 of the Limitation Act. The provisions mentioned above are not applicable to the case in hand, firstly because neither any special nor any local law has prescribed period of limitation for filing application (revision) different from the period prescribed in the First Schedule to the Limitation Act.
Secondly, the Civil Procedure Code is a general law which regulates the procedure of the Civil Courts. In Koer Durag Pal Singh v. The Pancham Singh and others AIR 1939 Allahabad 403 it was held:-- "The provisions of the Civil Procedure Code are subject to the provisions of the Limitation Act. Both Acts are general Acts and are in pari materia. The two Acts therefore, must be read together and must be treated as complimentary of each other." Thirdly, in a very recent judgment of august Supreme Court of Pakistan in Allah Dino and others v.
Muhammad Shah and others 2001 SCMR 286 it was held:-- "We have given our anxious thought to the proposition under examination. There is no cavil with the argument that if the Statute governing the proceedings does not prescribe period of limitation, the proceedings instituted thereunder shall be controlled by the Limitation Act as a whole. But where the law under which proceedings have been launched prescribes itself a period of limitation like under section 115, C.P.C. Then benefit of section 5 of the Limitation Act cannot be availed unless it has been made applicable as per section 29(2) of the Limitation Act."
22. Another aspect of the case is that mere technicalities, unless offering any insurmountable hurdle should not be allowed to defeat the ends of justice and the logic of words should yield to the logic of realities. The objection behind all legal formalities is to safeguard the paramount interest of justice. In fact while considering the importance of legal technicalities and rules of procedure in the administration of justice, it is inevitable to recall the various evolutionary stages in the transition from justice without law of primitive society to justice in accordance with law of modern society and the conflict between equity and law in judicial history. It cannot be denied, that legal precepts were devised with a view to impart certainty, consistency and uniformity to administration of justice and to secure it against arbitrariness, errors of individual judgment, and mala fide. Reliance in this regard is placed on the following judgments:--
(i) Riaz Hussain and others v. Muhammad Akbar and others 2003 SCMR 181;
(ii) Muhammad Bashir and others v. Province of Punjab through Collector, District Gujrat and others 2003 SCMR 83;
(iii) Mst. Syeda Tahira Begum v. Said Akram Ali and another 2003 SCMR 318, and
(iv) Mst. Arshan Bi through Mst. Fatima Bi and others v. Maula Bakhsh through Mst. Ghulam Saidoor and others 2003 SCMR 318.
Section 115, C.P.C. Also provides that this Court can suo motu exercise its revisional jurisdiction at any time without being bound by any period of limitation provided it fosters the cause of justice and dictates of justice so demanded and not in every case. High Court in its supervisory jurisdiction of superintendence and control could oversee and correct all jurisdictional errors or errors which had materially affected the proceedings of the subordinate Court in which appeal did not lie to it. A similar question came up for before the august Supreme Court of Pakistan in Muhammad Aslam and another v. Munshi Muhammad Behram and another 1991 SCMR 1971 in which it was held:- "The revisional powers of the 'High Court cannot be limited or abridged by the act of the parties. It can in supervisory jurisdiction of superintendence and control, oversee and correct all jurisdictionalerrors or errors which have materially affected the proceedings of subordinate Courts in which appeal does not lie to it.'
24. Similarly, in Muhammad Yousaf and 3 others v. Khan Bahadur through Legal Heirs 1992 SCMR 2334 it was held:-- "It is by now well-settled that the exercise of revisional jurisdiction by the High Court is a matter exclusively between the High Court and the subordinate Courts, albeit the parties to the litigation have a right to bring to their notice the jurisdictional/legal errors as envisaged in section 115 of the C.P.C. Itself. No period of limitation is, consequently, prescribed therefor under the law. No doubt, there are authorities on the point that the persons applying for exercise of revisional jurisdiction before the High Court have to submit their application within a certain time but that is not sacrosanct and the High Court can, in certain circurrstances, ignore or either may condone the delay or exercise their jurisdiction suo motu."
25 Likewise in Government of N.-W.F.P. Through Chief Secretary and 3 others v. Abdul Malik 1994 SCMR 833 it was held:-- "We are further inclined to take the view that a High Court can exercise revisional jurisdiction suo motu at any time without being bound by any period of limitation provided it fosters the cause ofjustice and the dictates of justice so demanded and not in every case."
26. In Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 it was held:-- "The scope of the revisional powers of the High Court though circumscribed by conditions of excess of jurisdiction, failure to exercise jurisdiction, illegal exercise of jurisdiction, is nevertheless very vast and corresponds to a remedy of certiorari and in fact goes beyond that at least in two respects inasmuch as, firstly, its discretionary jurisdiction may be invoked by the Court suo motu, and secondly, the Court may make such order in the case as it thinks fit."
27. Similar view was taken in the following judgments:-
(i) Shafaqat lqbal and others v. Ghulam Rasool and another PLD 2001 Lah. 139;
(ii) Izzat Khan v. Mst. Inshallah Begum PLD 2001 Kar. 396;
(iii) The Secretary, Auqaf Department, Government of Sindh, Karachi-South and 3 others v. Syed Sher Ali Shah and 9 others PLD 1999 Kar. 417, and
(iv) Morio Goth Welfare Association v. Muhammad Bachal and 6 others 1985 CLC 1680.
28. The net result of the detailed discussion is that the revision petition filed by the petitioners was within time.
29. On merits the perusal of the impugned judgment/decree passed by the learned Additional District Judge, Dir Bala dated 5-7-2001 shows that the learned Appellate Court due to the absence of learned counsel for the petitioners/appellants had drawn a conclusion that "the appeal had no force". The impugned order was not only perfunctory but was also non-speaking order manifesting by itself that the Court has not applied its mind to the resolution of the issues involved for their proper adjudication. The august Supreme Court of Pakistan in number of cases has not approved such orders. In one of the cases titled as Gouranga Mohan Sikandar v. The Controller of Import and export and 2 others PLD 1970 SC 158 it was held:-- "A judicial order must be a speaking order manifesting by itself that the Court has applied its mind to the resolution of the issues involved for their proper adjudication" because "litigants who bring their disputes to the law Courts with the incidental hardships and expenses involved to expect a patient and a judicious treatment of y their cases and their determination by proper orders".
30. It is worth-mentioning here that the above-quoted observations of the august Supreme Court of Pakistan in view of clear mandate containing in Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973 is binding on all other Courts in Pakistan. The above, mentioned decision
31. Similar direction was given by august Supreme Court of Pakistan in Mollah Ejahar Ali v.
Government of East Pakistan and others PLD 1970 SC 173 and by the Lahore High Court in Abdul Qadir v. The Presiding Officer, Punjab Labour Court No,3, Lyalipur and 2 others PLD 1975 Lah.
44. The judgment/decree passed by the learned Appellate Court is perfunctory gives the impression of hasty off-hand decision, it is non-speaking and has been passed without application of judicial mind. The learned Appellate Court, therefore failed to properly exercise jurisdiction vested in it. I, therefore, allow the revision petition i1 hand, set aside the impugned judgment and decree passed by the learned Appellate Court and remit the case back to it for deciding the appeal afresh on merits strictly in accordance with law. The needful be done within a period of 2 months. No unnecessary adjournment be given to either of the parties on any pretext. Office is directed to send the record to the learned Appellate Court. Parties are directed to appear before the said Court on 25-6-2003.