Adeel Khaleel vs Shahid Hassan etc.

Stereo.HCJDA 38.

Judgment Sheet

LAHORE HIGH COURT

RAWALPINDI BENCH RAWALPINDI

JUDICIAL DEPARTMENT

WRIT PETITION NO.3048 of 2018

ADEEL KHALEEL

Versus SHAHID HASSAN and 10 others

JUDGMENT

Date of hearing: 16.04.2025 Petitioner: Mr. Ajam Naz Malik, Advocate.

Respondents No.1 to 3 by: M/s Abdul Rauf Qureshi and Usama Bin Salam, Advocates.

Respondents No.4 to 8 by: Nemo.

MIRZA VIQAS RAUF, J. This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 originates from the judgment dated 9th November, 2017, whereby learned Additional District Judge, Rawalpindi proceeded to dismiss the revision application filed by the petitioner, being barred by time.

2.Facts in brief forming background of this petition are that the petitioner instituted a suit for specific performance on the basis of agreement to sell dated 26th July, 2004 with regard to house bearing No.E-109 measuring 12 Marla situated in E-Block Satellite Town, Rawalpindi. Suit was contested by respondents No.1 to 8 (hereinafter referred to as “respondents”), however, it was decreed by way of judgment dated 9th September, 2011 and the petitioner was directed to deposit the remaining sale consideration amounting to Rs.36,21,000/- within one and a half months from the date of passing

of decree failing which suit shall stand dismissed. The petitioner then moved an application for appropriate orders with the contention that remaining sale consideration is Rs.31,21,000/- and not Rs.36,21,000/- as determined by learned Civil Judge and as such he be allowed to deposit the said amount. The application was resisted by the respondents and ultimately it was dismissed by way of order dated 20th January, 2014. Feeling dissatisfied, the petitioner filed a revision application under Section 115 of the Code of Civil Procedure (V of 1908) (hereinafter referred to as “C.P.C.”) before learned Additional District Judge, Rawalpindi but it was dismissed, being barred by time through impugned judgment.

3.Learned counsel for the petitioner contended that application for deposit of remaining sale consideration was though moved well within time but it has been dismissed on extraneous grounds. It is argued with vehemence that failure to deposit the remaining sale consideration was not willful and as such application moved by the petitioner could not have been dismissed. Learned counsel emphasized that against the order of dismissal of his application, the petitioner filed a revision application before learned Additional District Judge, Rawalpindi but it has been dismissed, being barred by time. While making reference to Section 115 of the C.P.C. learned counsel submits that no time frame is provided for filing a revision application before learned District Judge and as such revision application has wrongly been dismissed.

4.Conversely, learned counsel for respondents No.1 to 3 seriously resisted this petition and submitted that the conduct of the petitioner is contemptuous and as such he is not entitled for any equitable relief.

5.Heard. Record perused.

6.Suit of the petitioner was founded on agreement to sell dated 26th July, 2004. Suit was though contested by the respondents but it was decreed by way of judgment dated 9 th September, 2011. The relevant extract from the same is reproduced below :-

“19. In view of my findings on above issues, the suit of the plaintiff is hereby decreed in terms that the plaintiff is entitled to get the transfer of share of the defendants No. 1 to 3 clearly to the extent of 08 marlas and they being legal heirs in proportion to 21/40 vis-à-vis other legal heirs in remaining 04 marlas. In this scenario considering the deficiency in suit property, in context of terms and conditions of an agreement to sell dated 26.07.2004, the share of defendants No.1 to 3 is hereby made good by re-adjusting the consideration amount, now which is fixed at Rs.41,41,000/- by deducting/reducing the original consideration amount which was previously fixed Rs.49,20,000/-. Now the plaintiff is bound to deposit the remaining consideration amount Rs.36,21,000/- within one and a half months from the date of passing of decree, however, to get the peaceful possession of the suit property, the plaintiff is hereby stepped into the shoes of defendants No.1 to 3 being co- sharer and as far as the possession of the suit property is concerned, the plaintiff is entitled to obtain the possession of the same after getting it partitioned in accordance with law. If the plaintiff fails to deposit the remaining consideration amount within target date the instant suit will stand as dismissed. Whereas, the application u/o 39 rule 2 (3) CPC is hereby dismissed. No order as to costs. File be consigned to the record room.”

(Underlining supplied for emphasis) It is apparent from the above that suit instituted by the petitioner was decreed conditionally whereunder he was bound to deposit remaining sale consideration amounting to Rs.36,21,000/- within one and a half months from the date of passing of decree, which time limit ended on 24th October, 2011. The petitioner on the other hand, moved the application for appropriate order on 28 th October, 2011 canvassing therein that the remaining amount of sale consideration is Rs.31,21,000/- and as such while accepting the application, he be allowed to deposit the said amount.

7.Needless to mention that in terms of the judgment dated 9 th September, 2011 the petitioner was obliged to deposit the remaining sale consideration amounting to Rs.36,21,000/- till 24th October, 2011. Had there been any dispute with regard to the remaining sale consideration, the petitioner must be vigilant enough to move for the rectification of the judgment swiftly but he remained waiting till the time to deposit expire. It is an oft repeated principle of law that when a decree is conditional and it stipulates the condition as well as the consequence of non-fulfillment of such condition the court would become functus officio on the target date. Guidance to this effect can

be sought from MUHAMMAD WAHID and another versus NASRULLAH and another (2016 SCMR 179). The relevant extract from the same is reproduced below :-

“10. We have heard the learned Counsel for the parties at length and have perused the record. It is an admitted fact that the trial Court had passed the ex parte decree on 13.7.2008 with a direction to the Appellants to deposit the remaining sale consideration in Court within 40 days, failing which the suit filed by them shall stand dismissed. Admittedly, the Appellants had made application for extension of time for deposit of balance sale consideration on 14.10.2008 after lapse of 40 days. Such Application, in the given circumstances, could not have been granted by the trial Court in exercise of its powers under section 148, C.P.C., as on the said date the trial Court had became functus officio by virtue of its judgment/decree dated 31.7.2008. The issue that the trial Court had passed a preliminary decree on the said date which became final on 31.10.2008, has no nexus with the condition incorporated in the decree of the trial Court which had specifically stated that in case of non-deposit of balance sale consideration within the stipulated time, the suit shall stand dismissed. Such a decree could have only been challenged by the Appellants in appeal and the Appellate Court was competent to allow an Application of the nature if justifiable grounds were found in such an Application seeking extension of time for deposit of balance sale consideration. The jurisdiction with the trial Court was available only within the stipulated period of 40 days, and the moment this period of 40 days was over, it ceased to have jurisdiction and had become functus officio, in view of the condition incorporated in the decree.”

8.It is, however, contention of learned counsel for the petitioner that decree was since drawn on 28th September, 2011, so application of the petitioner was well within time; suffice to observe that from the bare perusal of the judgment it is manifestly clear that the time for deposit of remaining sale consideration starts from the date of passing of the decree and not from the date when the decree sheet was drawn. Even otherwise if we consider the date of preparation of the decree in this eventuality, and the application of the petitioner would be treated as well within time, he was then obliged to deposit the amount of Rs.31,21,000/- being the remaining consideration as per his estimation to show his bonafide but it was not done either before the trial court or the revisional court.

9.After dismissal of his application, the petitioner challenged the order before learned Additional District Judge through a revision application, which was barred by time and accompanying an application seeking condonation of delay wherein he has taken the stance that there is no period of limitation prescribed for prosecution of the revision application in the Limitation Act, 1908 as is held in the cases of MUHAMMAD MIAN versus Syed SHAMIMULLAH and 2 others (1995 SCMR 69), HAJI MUHAMMAD versus JEHAN KHAN and 3 others (1995 SCMR 197) and RIASAT ALI versus MUHAMMAD JAFFAR KHAN and 2 others (1991 SCMR 496) and the revision application even though filed after the period of ninety days can be entertained, if the court is satisfied that sufficient reason has been assigned for the delay and it can condone the same. To this effect it is noticed that the revisional powers were conferred upon the High Court for the first time by virtue of Section 35 of the Act, 1861 and through the Law Reforms Ordinance (XII of 1972), Section 115 as it then was, has been re- numbered as sub-section (1), and sub-sections (2), (3) & (4) were added. Second proviso to sub-section (1) was added through the Code of Civil Procedure (Amendment) Act (VI of 1992) whereunder it was made obligatory that a revision 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 six months. Thus the reliance of learned counsel for the petitioner on the case of Muhammad Mian supra is totally misplaced, as the said case relates to the era prior to insertion of above referred proviso to Section 115 of the C.P.C. So far judgment in Haji Muhammad supra case is concerned, that is rested on entirely different facts and it is not applicable to the present case at all. Even the case of Riasat Ali supra relates to the era prior to insertion of second proviso to sub- section (1) and as such principles laid down therein are not attracted to the present case.

10.There is no cavil that mere limitation would not come in the way of revisional court to exercise its jurisdiction where it appears

from the record that the proceedings brought before it are tainted with such patent illegalities or material irregularities defeating the ends of justice but at the same time limitation cannot be considered merely a formality. The prime object of law of limitation is to help the vigilant and not the indolent. A court cannot come to the rescue of a litigant having gone into deep slumber and became forgetful of his right. Reliance to this effect can be placed on LAHORE DEVELOPMENT AUTHORITY versus Mst. SHARIFAN BIBI and another (PLD 2010 Supreme Court 705).

11.Adverting to the contention of learned counsel for the petitioner that no limitation is provided in Section 115 of the C.P.C. for a revision application before the District Court; it is observed with all clarity that with the addition of sub-section (2) through the Law Reforms Ordinance (XII of 1972) and the Civil Laws (Reforms) Act (XIV of 1994) alongwith the High Court amendments, the District Court was also vested with the revisional powers as is conferred upon the High Court by virtue of sub-section (1) in respect of any case decided by a court subordinate to such District Court in which no appeal lies and the amount or value of the subject matter whereof does not exceed the limits of the appellate jurisdiction of the District Court. For the purpose of limitation, second proviso to sub- section (1) of Section 115 of the C.P.C. would undoubtedly comes into play and as such contention of learned counsel is highly ill- founded.

12.In the above backdrop the propriety of the impugned judgment passed by learned Additional District Judge, Rawalpindi is when analyzed, it is noticed that the revision was filed after passing of about more than a year, which was adjudged as barred by time and rightly so. Even otherwise it clearly evinces from the record that the petitioner has remained indolent in prosecuting his cause right from the passing of the decree as is noted hereinabove. The petitioner is thus precluded to ask the court to come to his rescue on the principles of equity. Needless to observe that equity favours the vigilant and not the indolent.

13.It is trite law that when a question of fact or even of law is decided by the courts of competent jurisdiction concurrently it should not to be interfered in extraordinary jurisdiction of the High Court unless some patent illegality is floating on the surface of record. The petitioner is seeking writ of certiorari in terms of Article 199(1)(a)(ii) of the Constitution of the Islamic Republic of Pakistan, 1973. The petitioner has badly failed to point out any illegality or material irregularity in the impugned judgment and order, warranting interference by this Court in exercise of constitutional jurisdiction. This Court, while invoking its constitutional jurisdiction always exercises restraint in interfering with the judgment or order passed in exercise of revisional jurisdiction unless some perversity or patent illegality is floating on the surface of record. The constitutional jurisdiction can only be exercised in such an eventuality if the impugned order or judgment suffers with certain legal infirmities or patent illegalities, resulting into failure of justice. Reference in this regard can be made to CHIEF EXECUTIVE MEPCO and others versus MUHAMMAD FAZIL and others (2019 SCMR 919) and MUHAMMAD HUSAIN MUNIR AND OTHERS versus SIKANDAR AND OTHERS (PLD 1974 Supreme Court 139).

14.The nutshell of above discussion is that this petition is without any substance, as such it is accordingly dismissed with no order as to costs.

(MIRZA VIQAS RAUF)

JUDGE

APPROVED FOR REPORTING

JUDGE

Shahbaz Ali*