Period of Limitation 2006 C L C 618 [Lahore] Before Muhammad Muzammal Khan, J MUHAMMAD SHAREEF----Petitioner Versus MUHAMMAD RAMZAN and 3 others----Respondents Civil Revision No.1612/D of 1998, heard on 17th January, 2006. (a) Civil Procedure Code (V of 1908)--- ---S. 115--Limitation Act (IX of 1908), S.4--Revision before High Court---Expiry of limitation during summer vacations---Impugned judgment was passed on 24-3-1998---Application for certified copies was made on 14-4-1998, which were prepared on 18-5-1998 and delivered on 21-5-1998---Petitioner, after excluding time spent in getting certified copies, could file revision on or before 25-7-1998, but he filed same on 14-9-1998---Validity-According to notification of High Court dated 14-5-1998, summer vacations started from 13th July up to 12th September, but its Registry remained open during vacations for receipt of all kinds of petitions on working days--In spite of closure of High Court for regular work during such vacations, alternate arrangements had been made for receipt of petitions involving question of limitation---High Court during vacations would be deemed to be open for institution of some Hs---Period of limitation, thus, could not be enlarged under cover of S.4 of Limitation Act, 1908---Preparation of memorandum of revision and its tiling on 14-9-1998 showed that petitioner had not made any effort to file same within prescribed time---Revision petition was barred by time. Most Almay v. Hashanah 1989 MLD 3831; Fateh Ali Khan v. Subedar Muhammad Khan 1970 SCMR 238; Lehar Khan v. Moir Hamza and others 1999 SCMR 108; Khushi Muhammad v. Muhammad Sharif and others 1995 MLD 1042 and Rehana Kausar v. Faqir Muhammad and another 2004 CLC 1202 rel. (b) Punjab Pre-emption Act (IX of 1991)- ---S. 30(b)---Pre-emptive suit---Limitation--Sale Mutation, according to plaintiff, was sanctioned on 27-8-1993, but according to defendant on 7-8-1993-Plaintiff produced copy of Part Potwar of mutation showing its sanction on 27-8-1993, whereas defendant produced copy of Part Sarkar of mutation showing its sanctioning on 7-8-1993---Validity---Copy of Part Potwar of mutation without signatures of Revenue Officer would carry no weight---Rapt Rozenamcha Waqiati maintained by Patwari showed that on 27-8-1993, no mutation was sanctioned by Revenue Officer---Statement of Revenue Officer about sanctioning of suit mutation on 7-8-1993 could not be shaken during cross-examination---Suit was, held, to be barred by limitation. Shafqat Mehmood for Petitioner. Syed Kaleem Ahmad Khursheed for Respondents. Date of hearing: 17th January, 2006. JUDGMENT MUHAMMAD MUZAMMAL KHAN, J.---Instant civil revision assailed the appellate judgment/decree, dated 24-3-1998, whereby two appeals by the parties were decided and appeal filed by the petitioner was dismissed whereas the other filed by the respondents war accepted and suit of the petitioner was dismissed by reversing the judgment/decree of the trial Court, dated 5-11-1997. 2. Succinctly, relevant facts are that one Irshad Hussain sold hit land measuring 26 Kanals, 16 Marlas in favour of the respondents through Mutation No.1502 dated 7-8-1993 for consideration of Rs.95,000. The petitioner filed a suit for possession through pre-emption on 19-12-1993 with the assertion that he came to know of the sale on 6-12-1993 in presence of Qasim Ali and Muhammad Akbar when he instantly exclaimed his intention to pre-empt the same as his pre-emptive right was superior qua the respondents and in this manner, he alleged to have performed Talb-i-Muwathibat. The petitioner further pleaded that he also performed Talb-i-Ishhad on the same day by sending notice under registered cover, duly attested by two truthful witnesses and thereafter fulfilled the requirement of Talab-e-Khsumat by filing suit. Superior pre-emptive right was claimed being Shafi Sharik Shafi Khalit, and Shafi Jar i.e. being co-sharer in the Khata in question, having common means of water/path-ways to the suit-land and owner of adjacent land. 3. The respondents being defendants in the suit contested the same by filing their written statement, wherein they raised certain preliminary objections, like suit being barred by limitation, absence of cause of action in favour of the petitioner, estoppel and incorrect valuation of the suit for the purposes of court-fee besides denying superior pre-emptive right of the petitioner. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge who was seized of the matter, after doing the needful, held that both the petitioner and the venders had equal pre-emptive right thus, decreed the suit of the petitioner to the extent of 1/2 share of the suit-land vide his judgment/decree dated 5-11-1997. 4. Both the parties were not satisfied with the decision of the trial Court, hence they filed their distinct appeals before the learned Additional District Judge where the petitioner remained unsuccessful, as his appeal was dismissed but appeal of the respondents was accepted and suit of the petitioner was dismissed on the ground that the same was barred by limitation vide appellate judgment/decrees dated 24-3-1998. The petitioner, thereafter, filed instant revision petition, which was admitted to regular hearing and after completion of record has now been placed for final determination. The respondents in response to notice by this Court, have appeared and were represented through their counsel. 5. The learned counsel appearing on behalf of the respondents raised a preliminary objection that the civil revision is barred by limitation as the same was filed beyond the prescribed period of limitation of 90 days, as per section 115, C.P.C. He further emphasized that the suit of the petitioner was prima facie barred by limitation, having been filed after lapse of four months from the date of sanction of mutation in favour of the respondents, hence, no illegality/irregularity having been committed by the First Appellate Court, findings thus, returned are not amenable to revisional jurisdiction of this Court. 6. The learned counsel for the petitioner refuted the preliminary objection, as well as the other stance of the respondents and urged that civil revision was filed on 14-9-1998 on re-opening of this Court, after summer vacations as period of limitation expired during the period when this Court was closed. According to him, section 4 of the Limitation Act, 1908, was fully attracted which envisaged that when the Court is closed, any cause period of limitation of which had lapsed in the meanwhile, could be filed/instituted on re-opening of the Court. The learned counsel for the petitioner in support of his stance referred to the judgment in the case of Most Almay v. Hashanah 1989 MLD 3831. It was further contended on behalf of the petitioner that Mutation No.1502 which was sought to be pre-empted was sanctioned on 27-8-1993, whereas suit on behalf of the petitioner was filed on 19-12-1993, thus, the same was within the prescribed period of limitation of four months. According to his submissions, Appellate Court misread the record to conclude that Mutation No.1502 was attested on 7-8-1993. 7. I have heard the learned counsel for the parties at considerable length and have minutely examined their respective submissions. The primary question, which hinges for determination is as to whether during the summer vacations of this court in the year 1998, period of limitation expiring during this time, would stand extended at the strength of the provisions of section 4 of the Limitation Act, 1908 and as to whether the petitioner was really handicapped to file civil revision on account of close of this Court due to summer vacations? In order to resolve the controversy a glance over Notification No.197-A/XVIT-13, dated 14-5-1998 issued under the orders of the then Honourable Chief Justice A will be of much help thus, the same is reproduced for convenience purpose i.e. Lahore High Court, Lahore No.197-A/XVII-13, dated Lahore the 14th May, 1998 It is hereby notified for general information that the Lahore High Court (Principal Seat) and its Benches at Bahawalpur, Multan and Rawalpindi will be closed for Civil Business on account of Summer Vacations from Monday the 13th July, 1998 to Saturday the 12th September, 1998. During the period of vacations petitions will be received daily from such persons as may choose to present them, except Sundays and Public Holidays. All such petitions and other miscellaneous petitions as cannot be disposed of at once, will be heard on the re-opening of the Court after vacation on such dates as may be fixed. By order of the Honourable Chief Justice. (Naseer Ahmad Nasir) Deputy Registrar (Accounts) for Registrar. 8. The above-reproduced notification clearly depicts that summer vacations of this Court for the year 1998 started from 13th July up to 12th September, and the first opening day was 13th September, 1998. The other thing, which is obvious from it, is that Registry of this Court remained open throughout the summer vacations, for receipt of all kinds of petitions daily from such persons as may choose to present those on all working days. I have no ambiguity that this Court had made arrangements for receipt of petitions involving question of limitation, in spite of closure of this Court for regular work during the summer vacations and when such alternate arrangement having been made for the purposes of section 4 of the Limitation Act, 1908, the Court will be deemed to be open with the only difference that cases which were not of urgent nature, were not fixed for hearing during vacations and were to be heard on re-opening thus the period of limitation cannot be enlarged under the cover thereof, for the simple reason that this Court for the purposes of institution of some lis, was not closed. This question and applicability of section 4 of the Act (ibid) earlier fell for determination/ interpretation of superior Courts and in the case of Fateh Ali Khan v. Subedar Muhammad Khan 1970 SCMR 238 contention that Court was closed for long vacations and, therefore, extension of time could be claimed under section 4 of the Limitation Act, 1908 was repelled by the Honourable Supreme Court, on the ground that Registry of Court remained open during vacations to receive petitions etc. Same view was reaffirmed by the Honourable Supreme Court in the case of Lehar Khan v. Amir Hamza and others 1999 SCMR 108. This Court in the case of Khushi Muhammad v. Muhammad Sharif and others 1995 MLD 1042 and I myself in the case of Rehana Kausar v. Faqir Muhammad and another 2004 CLC 1202 followed the same view that where arrangements for filing of appeals/petitions had been made by keeping the registry open, section 4 of the Limitation Act, 1908 will not be available for enlargement/extension of period of limitation. In the instant case 1st Appellate Court delivered judgment on 24-3-1998, copies of which were applied by the petitioner on 14-4-1998, were prepared on 18-5-1998 and were delivered to the petitioner on 21-5-1998. He could file the civil revision after excluding time spent in getting certified copies under section 12 of the same Act, on or before 25-7-1998 but he filed it on 14-9-1998, after lapse of one month and twenty days and there is no explanation for such an inordinate delay. Memorandum of revision revealed that it was prepared/drafted on 14-9-1998 and was filed, the same day which proved that no effort was made an no step was taken to file the same within the prescribed time thus, the same is held to be barred by limitation. In presence of above referred judgments by the apex Court of this country and my own judgment, I felt myself unable to give any credence to the precedent case relied by the learned counsel for the petitioner. Though the civil revision being barred by time, merits of the case may not have been touched or considered yet in order to satisfy judicial conscience of the Court, the other submission of the learned counsel for the respondent, to the effect that petitioners suit for possession through pre-emption was barred by limitation, was also looked into. Sale subject of suit was effected through Mutation No.1502. Section 30(b) of the Punjab Pre-emption Act, 1991 provided limitation for a suit to enforce right of pre-emption under the Act, as four months from the date of the attestation of mutation if the same is made otherwise than through registered sale-deed. Mutation No.1502 (Exh.D.1) which was entered on the basis of Rapt Rozenamcha Waqiati dated 2-8-1993, was sanctioned by the Revenue Officer concerned on 7-8-1993 Exh.D.1 is certified copy of the Part Sarkar of the mutation sanctioned on 7-8-1993 whereas its copy produced as Exh.P.8 is copy of the Part Patwar and its recital of sanctioning mutation on 27-8-1993 by the Patwari, without signatures o£the Revenue Officer, carries no weight. I have checked up copy of Mutation No.1502 (Exh.D.1) from the brief of the learned counsel for the petitioner, as well, which also shows that mutation was sanctioned on 7-8-1993. Respondents have also produced copies of Rapt Rozenamcha Waqiati maintained by the Patwari as Exh.D.IX and Exh.D-X. In document Exh.D.-IX at Serial No.401 visit of Naib Tehsildar/Revenue Officer .for sanctioning of mutations, is entered whereas in document Exh.D.X. at Serial No.476 it is mentioned that on 27-8-1993, no mutation was sanctioned by the Revenue Officer for the Circle. Both these documents clearly proved that no mutation was sanctioned on 27-8-1993 by the Revenue Officer thus, stance of the petitioner of sanctioning mutation on this date, stood belied. 9. Trial Court had framed Issue No.6 regarding limitation, as to whether the suit is time-barred? Respondents besides producing certified copy of the original mutation (Exh.D.1), had examined Abdul Aziz, Naib Tehsildar as D.W.1 who categorically deposed that mutation in question was sanctioned on 7-8-1993. This witness not only proved Exh.D.1 but also proved his order of sanctioning mutation dated 7-8-1993, there over. The Revenue Officer was subjected to lengthy cross-examination but veracity of his statement could not be shattered. Respondents by producing this evidence discharged the onus of proof of Issue No.6 placed on their shoulders but petitioner brought nothing in rebuttal and felt satisfied by producing copy of Part Patwar of the mutation (Exh.P.8) which, as discussed above, was proved to be factually incorrect. Scan of evidence on the file revealed that Mutation D No.1502 subject of suit for pre-emption was sanctioned on 7-8-1993 whereas the petitioner filed the suit for possession through pre-emption on 19-12-1993 thus, the same was instituted beyond the period of limitation, as discussed above, hence could not have been decreed but the trial Court incorrectly relying on Exh.P.8, wrongly decreed the same. Appellate Court in correct appreciation of evidence, rightly concluded the lis and committed no illegality/irregularity amenable to revisional jurisdiction of this Court. 10. For the reasons noted above, instant revision petition and suit of the petitioner for possession through pre-emption were barred by limitation hence, this petition being meritless, is dismissed with costs, throughout. S.A.K./M-34/L Revision dismissed.
Posted on: Sat, 18 Oct 2014 13:59:16 +0000
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