' In Suit No,3 of 1995 for Declaration, Partition, Separation, Mesne Profits and Permanent Injunction, at the request of parties, the dispute was referred to an Arbitrator namely Mr. Noor Muhammad Shaikh. The Arbitrator gave his award and the same was accepted as rule of the Court and judgment passed accordingly. The judgment was followed by the decree.
2. Plaintiff Muhammad Bux, now respondent No,1, appealed against the award, judgment and decree and the learned Appellate Court modified the award, judgment and decree in respect of one condition relating to the use of passage.
3. Applicants Nos.1 to 8 (defendants Nos.1 to 8) assailed the appellate judgment and decree through present revision application mainly on the ground that those were suffering from legal infirmities - including the violation of section 15 of the Arbitration Act.
4. Pre-admission notice was issued to the respondents and their learned Advocate raised legal objection of limitation. His contention is that the revision application filed on 30-9-2000 against the judgment dated 21-5-2000 is hopelessly time-barred.
5. Arguments have been heard at the stage of Katcha Peshi. Applicants learned Advocate has contended that through present Revision Application the judgment and decree of the Appellate Court have been challenged therefore, section 12(2) of the Limitation Act is applicable. According to him, the time will start from the stage when the decree was signed and not from the stage of judgment. The Appellate Court passed the judgment on 31-5-2000 and the decree was signed on 30-6-2000.
6. The learned Advocate appearing for the contesting respondents argued that section 12(2), Limitation Act is not applicable to the Revision Application under section 115, C.P.C. The period for filing the Revision Application has been provided by the same section 115, C.P.C., therefore, the provision of section 12(2), Limitation Act are not applicable to the present revision application. He referred to the pronouncement reported in 2001 MLD 1546, PLD 1960 (West Pakistan) Karachi 795 and PLD 1993 Quetta 121.
7. It is the decision of First Appellate Court which has been assailed through the present Revision Application under section 115, C.P.C. Under proviso 2 to subsection (1) of section 115, C.P.C. The revision application is to be made within 90 days of the decision. The proviso 2 to subsection (1) of section 115, C.P.C. Reads as under:-- "Provided that such application shall be made within ninety days of the decision of the subordinate, Court which shall provide a copy of such decision within three days thereof, and the High Court shall dispose of such application within three months."
8. When the limitation for making the application for revision has been fixed by C.P.C. And not the Limitation Act, provision of section 12(2) of Limitation Act do not apply to it. Even otherwise section 12(2) of Limitation Act speaks of appeal, an application for leave to appeal or an application for a review of the order. It nowhere mentions of Revision Application. The pronouncement referred to by the learned Advocate appearing for the respondent make it clear !Hat provision of section 12(2) of Limitation Act, 1908 are not attracted to the revision application.
9. Since it is the proviso 2 to subsection (1) of section 115, C.P.C. Which prescribes the limitation for filing the revision application it is to be seen as to whether present application has been filed beyond the period of limitation provided by the said provision of law. Undisputedly 90 days period is fixed for filing the revision application against the decision of the subordinate Courts. The most debated and interesting question in the present matter is as to what does the decision amount.
Whether in the case like present one where the Appellate Court passed judgment and decree, the decision is the judgment and the Court of time shall start from date of judgment or it will remain suspended till the decree is signed. In the matters where the first and/or second appeal are filed against the judgment followed by decree, the time is computed from the date of decree. Here the difference is that the decision in first appeal has been impugned through revision application for the reason that no second appeal is provided against it.
10. The judgment in first appeal was never complete without decree as in absence of decree it was not even executable. The decree is, therefore, essential component of the decision. The first appeal could be treated as a matter decided finally only after the preparation of decree. Thus the decision referred in section 115, is the combination of judgment and decree. Any of them singly cannot be treated as decision.
11. Since the judgment and decree both collectively are to be treated decision, the time shall start to run from the date of decree following the judgment. The decree was prepared by the learned 1st Appellate Court on 30-6-2000: The time started to run from 1-7-2000 and ninety days period expired with 28-9-2000 whereas the revision application was presented on 30-9-2000, thus it was two days beyond .The period of limitation.
12. Apparently there is no convincing and satisfactory explanation for the delay. The question to be decided is that whether the revision application should be dismissed on the ground of limitation.
For taking decision on the point it will be appropriated to examine the proviso fixing the time line for making the revision application. It reads as under:-- "Provided that such application shall be made within ninety days of the decision of the subordinate Court which shall provide a copy of such decision within three days thereof, and the High Court shall dispose of such application within three months."
13. The proviso gives the time not only for filing the revision application but also supply copy of the decision to the aggrieved party by the Appellate Court and for disposing of the revision application by the High Court:--
(i) the Appellate Court has to provide the copy of decision to the aggrieved party within three days thereof;
(ii) the revision application is to be filed within ninety days of the decision, and
(iii) the High Court has to dispose of the revision application within three months.
14. The proviso in its form is regulatory one which gives an automatic controlling mechanism.
However, if the Appellate Court -fails to provide a copy of decision within three days or the High Court does not dispose of the revision application within three months, the relaxation will be automatic being the only option available. Therefore, H ninety days limit for filing the revision application is not to be implemented rigidly. Also the requirement is not to be made redundant.
Thus balanced and practical attitude is to be adopted towards the regulatory time limit fixed by the proviso, by avoiding rigidity in a deserving case.
15. Also the revisional jurisdiction under section 115 is supervisory where the High Court is empowered to pass an appropriate order where it thinks fit on calling for the record, that the subordinate Courts have exercised the jurisdiction not vested by law or to have failed to exercise the jurisdiction so vested or had acted in the exercise of its jurisdiction illegally or with material irregularity. This power can be exercised even suo mom for checking the illegalities and irregularities and to see whether the powers are being exercised legally and properly by the subordinate Courts. For exercise of the jurisdiction suo motu there is no time limit. The rigid application of the time limit provided by section 115 may create impression of refusal to exercise the jurisdiction by revisional Court itself for technical reasons.
16. In the present case the Appellate Court did not supply the copy of decision to the aggrieved party and also the High Court has heard the arguments on the question of admission much after the expiry of the three months of the filing of this revision. If the application is declared not maintainable for being two days beyond the period of limitation that may create impression of selective rigidity.
' In view of the above discussion on the point of limitation plus the fact that the award/decree of the trial Court has been modified the contention that the modification is against the scheme and in violation of section 15 of the Arbitration Act deserves careful examination, therefore, the revision application is not to be dismissed for being two days beyond time limit and is hereby admitted for hearing. Let the office fix the date for early regular hearing.