Ch. Muhammad Arshad Vs Rashid Hameed Warraich

Stereo. H C J D A-38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Civil Revision No.12456 of 2023

Ch. Muhammad Arshad Versus Rashid Hameed Warraich

JUDGMENT

Date of hearing: 22.06.2026.

Petitioner by: Ms. Safina Safdar Bhatti, Advocate. Respondent by: M/s. Arshad Jehangir Jhoja and Habeeb-ur- Rehman, Advocates.

MUHAMMAD SAJID MEHMOOD SETHI, J.- Through this civil revision, the petitioner has called in question the judgment dated 02.02.2023 passed by the learned Additional District Judge, Bhalwal whereby his appeal against Trial Court’s judgment and decree dated 28.06.2022 was dismissed as barred by limitation.

2.Briefly stated, the respondent instituted a suit for specific performance on the basis of an agreement to sell dated 07.09.2017 along with perpetual injunction, which was contested by the petitioner through written statement. After framing issues, recording evidence and hearing arguments of the parties, the learned Trial Court vide judgment and decree dated 28.06.2022 decreed the suit in favour of the respondent. Feeling aggrieved, the petitioner preferred an appeal along with an application under Section 5 of the Limitation Act, 1908 seeking condonation of delay. The learned Appellate Court, after examining the question of limitation, dismissed the appeal as time- barred through judgment dated 02.02.2023. Hence, the present revision petition.

3.Learned counsel for the petitioner submits that the learned Appellate Court fell into error while computing limitation. She argues that the petitioner cannot be penalized for the procedural mistakes committed by his previous counsel, who initially pursued an incorrect remedy. She further contends that the learned Trial Court subsequently modified its judgment and decree through order dated 29.09.2022, therefore a fresh period of limitation became available to challenge the

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decree. Learned counsel further argues that the findings recorded by the learned Trial Court on the merits of the suit are contrary to the evidence available on record and suffer from misreading and non- reading of evidence. In support, she has referred to Secretary to Government (West Pakistan) Now N.-W.F.P. Department of Agriculture and Forests, Peshawar and 4 others v. Kazi Abdul Kafil (PLD 1978 Supreme Court 242), Khan Bahadur Khan v. Khan Malook Khan (PLD 2022 Supreme Court 482), Zafar Iqbal and others v. Mst. Nasim Akhtar and others (PLD 2012 Lahore 386), Manzoor Hussain v. Haji Khushi Muhammad (2017 CLC 70), Atta Mohammad (deceased) through L.Rs. and others v. Hassan Nawaz (2019 CLC 1392) and Haji Bashir Ahmad Ch. v. Bashir Ahmad (deceased) through L.Rs. and others (2021 CLC 1696).

4.Conversely, learned counsel for the respondent supports the impugned judgment and submits that the appeal was hopelessly barred by time. He contends that the petitioner failed to furnish any legally sufficient explanation for the delay. He adds that the correction order dated 29.09.2022 merely rectified an accidental omission and did not create a fresh cause of action or a fresh decree, and that no jurisdictional defect or material irregularity has been pointed out warranting interference in revisional jurisdiction. In support, he has referred to Government of N.-W.F.P. and others v. Akbar Shah and others (2010 SCMR 1408), Muhammad Islam v. Inspector-General of Police, Islamabad and others (2011 SCMR 8), Raja Khan v. Manager (Operation) Faisalabad Electric Supply Company (WAPDA) and others (2011 SCMR 676), Pak Leather Crafts Limited and others v. Al-Baraka Bank Pakistan Limited (2022 SCMR 1868), Federation of Pakistan through the Secretary, Ministry of Law and Justice, Islamabad and others v. Supreme Judicial Council through Secretary, Supreme Court Building, Islamabad and others (PLD 2024 Supreme Court 698), Regional Police Officer, Dera Ghazi Khan Region and others v. Riaz Hussain Bukhari (2024 SCMR 1021), Riasat Ali and 2 others v. Mahmood Ahmad (1993 CLC 120) and Millat Tractors Ltd. v. Rahim Bakhsh (PLD 1995 Lahore 377).

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5.I have heard the learned counsel for the parties at considerable length, examined the record, and given thoughtful consideration to the submissions advanced.

6.The principal question requiring determination in the present revision petition is whether the learned Appellate Court committed any jurisdictional error or material irregularity in dismissing the petitioner's appeal as barred by limitation. Unless the finding on limitation is shown to be contrary to law, the merits of the original decree would pale into insignificance, for a time-barred appeal cannot be entertained merely because arguable questions on merits may otherwise exist. Guidance has been sought from the decision of the august Supreme Court rendered in Collector, Land Acquisition, Chashma Right Bank Canal Project, WAPDA, D.I. Khan and others v. Ghulam Sadiq and others (2002 SCMR 677), wherein appeal filed by the petitioner was dismissed by the august Court on the point of limitation by holding that infirmity in decision on merits loses all its significance when lis is time barred. Relevant portion is provided below:

“3. ...The plea that the decision on merits suffered from any alleged infirmity loses all its significance when considered in juxtaposition with letter and spirit of the law requiring Court/forum concerned to dismiss application/petition/appeal if the same is beyond time within the contemplation of section 3 of the Limitation Act, 1908...”

Similar view was taken by august Supreme Court in Muhammad Khawaja v. Bahadur and 25 others (1991 SCMR 1538), wherein august Court had refused to render its decision on merits by holding that the merits would have to be considered after the petitioner could cross the hurdle of limitation.

7.The relevant facts concerning limitation are not disputed. The judgment and decree sought to be challenged were passed on 28.06.2022. Certified copies thereof were applied for on 01.07.2022. The Copying Agency notified 07.07.2022 as the date of delivery. The copies, however, were admittedly obtained only on 02.09.2022, while the appeal was instituted on 27.09.2022. The entire controversy, therefore, revolves around whether the period between 07.07.2022 and 02.09.2022 was liable to be excluded while computing limitation.

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The learned Appellate Court answered the question in the negative and, in the opinion of this Court, rightly so. Section 12 of the Limitation Act, 1908 permits exclusion only of the time genuinely requisite for obtaining certified copies. Once the Copying Agency intimates that the copies are ready for delivery, the applicant is expected to act with due diligence. Any delay occurring thereafter to his own inaction, indifference, negligence or lack of vigilance, cannot be excluded from computation of limitation. Reliance is placed upon Fateh Muhammad and others v. Malik Qadir Bakhsh (1975 SCMR 157). Relevant part is provided below:

“It is well settled that the time requisite for obtaining copy of order within the meaning of section 12 of the Limitation Act, 1908 means only the interval between the date of application for supply of copy and the date when it is ready for delivery. Even during this interval, due diligence on the part of the litigant is required by law, and no delay, unless such as was caused by circumstance over which he had no control and which he could not by due diligence be avoided, can form part of time "requisite" for obtaining the copy. The time between the date on which he the copy is ready for delivery, and the date on which the applicant chooses to take delivery thereof is not a portion of the time "requisite" for obtaining a copy.”

8.The petitioner admittedly failed to collect the copies on the notified date. More importantly, no plausible explanation was furnished before the learned Appellate Court explaining why the copies remained uncollected for almost two months after they had become available. The record is conspicuously silent regarding any circumstance beyond the petitioner's control which prevented timely collection of the copies. In the absence of such explanation, the learned Appellate Court was fully justified in treating the period after 07.07.2022 as attributable to the petitioner himself.

9.The law of limitation is founded upon public policy. It is intended not merely to penalize indolence but also to secure certainty and finality in litigation. Although Courts ordinarily lean in favour of deciding matters on merits, such inclination cannot be stretched to render the statutory periods of limitation otiose. Equity aids the vigilant, not those who sleep over their rights. A litigant seeking condonation of delay must establish sufficient cause through a reasonable, bona fide and satisfactory explanation covering the entire period of delay. Mere assertions, unsupported by cogent material, do

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not constitute "sufficient cause" within the contemplation of law. The august Supreme Court, while elucidating the object and purpose of the law of limitation in Sindh Irrigation and Drainage Authority v. Province of Sindh and another (2026 SCMR 190), observed as under:

“9. ..... The purpose of limitation set down in the Limitation Act, 1908 is not meant to obliterate or devastate the rights of the parties but in all intent and purposes, it is to make sure that parties do not resort to lagging or sluggish trickeries and the bright idea is to keep alive every legal remedy for a period specified by the legislature under the Limitation Act, 1908 and within such period, a legal remedy can be availed for the recompense and reparation of the grievance...The law of limitation is founded on public policy with the common sense and wisdom of attaining finality to the judgments. The Latin phrase "interest reipublicae ut sit finis litium" accentuates that "it is in the interest of the state that there be an end to litigation".”

10.The petitioner's principal explanation for delay is that his previous counsel initially pursued an incorrect remedy by filing a revision petition instead of an appeal. The record reveals that the revision petition was instituted on 19.09.2022 and withdrawn on 26.09.2022, whereafter the appeal was filed on 27.09.2022. Far from assisting the petitioner, this circumstance demonstrates that he was fully aware of the judgment and decree sought to be challenged. The impediment was not lack of knowledge of the decree but an erroneous choice of remedy.

11.It is a settled principle that negligence of counsel, mistaken legal advice, procedural misunderstanding or ignorance of law do not automatically furnish sufficient cause for condonation of delay. Were such pleas to be accepted as a matter of course, the law of limitation would become wholly unworkable. This principle was reiterated by the august Supreme Court in Khushi Muhammad through L.Rs. and others v. Mst. Fazal Bibi and others (PLD 2016 Supreme Court 872), in following words:

“37. ..... Mere incompetence of the counsel, inadvertence, negligence or ignorance of law attributable to him and/or overlooking of the record by the counsel cannot constitute sufficient cause ipso facto, .....”

The petitioner was required to demonstrate circumstances showing that despite acting with due diligence he was prevented from

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approaching the proper forum within time. No such circumstances have been brought on record.

12.Learned counsel for the petitioner has laid considerable emphasis upon the correction order dated 29.09.2022 and has argued that a fresh period of limitation commenced therefrom. The contention is devoid of substance. The record shows that during pendency of the suit the plaintiff had already deposited the balance sale consideration amounting to Rs.2,500,000/- pursuant to an order of the Court. While decreeing the suit, the learned Trial Court inadvertently repeated a direction requiring deposit of the same amount. The subsequent order dated 29.09.2022 merely removed this duplication and corrected an accidental error. The findings on the issues, the decree for specific performance, the rights of the parties and the substantive adjudication remained wholly untouched.

A distinction must be maintained between a substantive modification affecting the rights of parties and a mere correction of an accidental or clerical error. The former may, in appropriate circumstances, furnish a fresh cause for challenge, whereas the latter does not. Since the correction order neither altered nor varied the adjudication on merits, it did not create a fresh decree nor furnish a new starting point of limitation. The learned Appellate Court was therefore correct in holding that limitation continued to run from the original judgment and decree dated 28.06.2022.

13.Equally untenable is the argument that the learned Trial Court lacked jurisdiction to pass the correction order. The correction proceedings had been initiated shortly after pronouncement of judgment and related exclusively to an accidental omission apparent on the face of the record. No prejudice whatsoever has been demonstrated to have been occasioned to the petitioner by rectification of an error which merely brought the decree in conformity with the admitted factual position already existing on the record.

14.Once the appeal was found to be barred by limitation, the learned Appellate Court was under no legal obligation to enter into the merits of the controversy. A Court cannot adjudicate upon the merits of an appeal which is itself incompetent due to lapse of limitation. The approach adopted by the learned Appellate Court was therefore

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entirely consistent with settled principles governing appellate jurisdiction.

15.Even otherwise, this Court finds no exceptional circumstance warranting revisional interference. The learned Trial Court's findings were founded upon oral as well as documentary evidence including the agreement to sell, testimony of the marginal witnesses, the deed writer, banking record and revenue documents. The petitioner's defence that he had voluntarily signed blank stamp papers was disbelieved for reasons recorded in the judgment. Whether such findings are right or wrong on facts is not the issue before this Court. Revisional jurisdiction is not intended to provide a fresh appraisal of evidence or a second opportunity to challenge findings of fact. Unless a finding suffers from patent illegality, perversity or jurisdictional defect, interference is not warranted.

16.The learned Appellate Court correctly computed limitation, rightly rejected the grounds urged for condonation of delay, and properly concluded that the correction order dated 29.09.2022 did not furnish a fresh starting point of limitation. The impugned judgment neither suffers from misreading or non-reading of evidence nor discloses any jurisdictional defect or material irregularity calling for interference under Section 115, C.P.C.

The case law relied upon by learned counsel for the petitioner is distinguishable on facts, as it was rendered in a different factual matrix and legal context, and is therefore not applicable to the circumstances of the present case.

17.Consequently, this civil revision petition is dismissed. No order as to costs.

(Muhammad Sajid Mehmood Sethi) Judge

APPROVED FOR REPORTING

Judge

*A.H.S.*