Muhammad Ahmad Vs Muhammad Shafi Shakir through LRs etc

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

C.R. No. 62808 of 2024

Muhammad Ahmad vs.

Muhammad Shafi Shakir (deceased) through his LRs etc. S.No. of Date of Order with signature of Judge and that of parties or Order/ order/ counsel where necessary Proceeding proceeding 13.10.2026 Mr. Shafiq Ahmad, Advocate for petitioner. Mr. Qamar Hanif Ramay, Assistant Attorney General for Pakistan.

M/s Qamar Zaman Qureshi and Barrister Hassan Khalid Ranjha, Additional Advocate Generals Punjab. M/s Mazhar Hussain Tahir, Malik Khalid Tanveer, Abdul Manan Sipra, Rana Athar Raza Khan, Fayyaz Sandhu, Barrister Muhammad Sohail Babar Khan, Barrister Saeed Hussain Nagra, Sh. Faisal Sikandar Iqbal, Muhammad Shahid Malik, Sarmad Ahmad Ghani, Mahar Salman Qutab, Syed Qaiser Gillani, Faisal Anwar Minhas, Ijaz Ahmad, Muhammad Naeem Mazhar, Ch. Imtiaz ullah Warraich, Ch. Muhammad Naseer, Shehryar Farhan Beg, Barrister Karim Ullah Sraw, Ms. Maryam Khan Khosa, Ms. Zubera Bashir Chaudhry, Ms. Moniba Nadeem, Muhammad Waleed Waheed Chaudhry, Asif Raza Rasheed, Barrister Shahid Masood Khan, Syed Imran Ehsan, Muhammad Badar Butt, Abdullah Haroon, Muhammad Saeed Bin Noman, Dr. Muhammad Azeem Raja, Syed Ali Allow-u-Din, Muhammad Afzal, Mateen ul Haq Ch., M. Haris Jutt, Shafique Ahmad Bhutta, Zahid Saeed, Omer Riaz Chaudhary, Ms. Musarrat Rehman Advocates and Ms. Asifa Ahmad, Advocates.

MUZAMIL AKHTAR SHABIR, J. The petitioner, Muhammad Ahmad (‘Petitioner’), who was the plaintiff of the suit, is aggrieved of judgment and decree dated 16.05.2023 (‘impugned decree’) passed by learned Civil Judge Pakpattan Sharif, whereby his suit for specific performance of agreement to sell alongwith permanent injunctions filed against the respondents, Muhammad

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Shafi Shakir (deceased) through legal heirs i.e. his daughters namely Bushra Ansari (respondent no.1) and Nusrat Ansari (respondent no.2) (‘respondents’) has been dismissed under Order XVII Rule 3 Code of Civil Procedure, 1908 (‘CPC’) for want of evidence and is also aggrieved of order dated 13.06.2024 (‘impugned order’) passed by the learned District Judge, Pakpattan, whereby the appeal filed by him to challenge the aforesaid judgment and decree has been dismissed as time barred.

2.Learned counsel for the petitioner states that the impugned decree passed by the trial court and impugned order passed by the appellate court are against the facts of case and law on the subject and by setting the same aside one opportunity be provided to the petitioner to lead evidence.

3.The brief facts of the case as narrated in the plaint are that predecessor of defendants was owner in possession of land measuring 1-Kanal bearing Khewat No.120/116, Khatoni No.529 to 580, total Qitaat 134, share as 20/16395 of total Khata measuring 819K-15M, specific Khasra No.56/25/1 (here-in-after be termed as ‘suit property’); that on 15.10.2007, Muhammad Shafi Shakir (deceased) predecessor in interest of the respondents, who being his daughters were impleaded as defendants in the suit, entered into agreement to sell with petitioner regarding suit property in presence of witnesses for total sale consideration of Rs.1,20,000/- and the deceased received the whole consideration amount from the petitioner and possession was delivered and agreement to sell No.145 dated 15.10.2007 was also executed in this regard. It is claimed that the predecessor of respondents was ill due to which sale deed was not

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registered in favour of petitioner and it was agreed that after recovering from disease, the predecessor of respondents would register sale deed in favour of petitioner but later on he died. In life of predecessor, the respondents admitted the claim of petitioner and promised to transfer the suit property in his name but subsequent to his death, they denied to abide by the agreement and with mala-fide intention refused to execute the sale deed. Consequently, the petitioner filed suit for specific performance of agreement to sell. Initially the respondents were summoned but they did not appear before the court and were proceeded against ex- parte and suit of petitioner was decreed ex-parte on 25.02.2016. Thereafter, respondents moved application u/s 12(2) CPC for setting aside ex-parte proceedings dated 30.01.2015 and ex-parte judgment and decree dated 25.02.2016, which was accepted subject to payment of cost Rs.5000/- vide order dated 13.05.2019. The respondents filed written statement and written reply. They raised certain preliminary objections and contested the suit on preliminary as well as factual grounds and denied execution of the agreement to sell, delivery of possession and receipt of consideration. Out of divergent pleadings of the parties, 8 issues were framed. On failure of the petitioner to produce evidence despite various opportunities his right to produce evidence was closed and suit was dismissed resulting in passing of the impugned decree. The petitioner filed an appeal against the same, which through the impugned order has been dismissed as time barred. Both the impugned decree passed by the trial court and order passed by the appellate court are under challenge through the instant revision petition.

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4.The points for consideration before this Court are whether the appeal has rightly been dismissed as time barred and whether sufficient opportunities were provided to the petitioner to lead evidence before closing his right and dismissing his appeal as time barred.

5.This Court shall first address the question of limitation. As per Article 152 of first schedule of the Limitation Act, 1908, an appeal against decree passed by the Civil Court has to be filed before the District Judge within 30-days of passing of the decree. The relevant provision is reproduced below for clarity: The Limitation Act, 1908 First Schedule Second Division: Appeals Description of appeal Period of Time from which limitation period begins to run

152.Under the Code of Civil Thirty Days The date of decree Procedure, 1908, to the Court or order appealed of District Judge. from.

6.It is important to note here that the said period of limitation of thirty days for filing an appeal before the District Judge is subject to the provisions of Section 12 of the Limitation Act, which provides as under: ‘12. Exclusion of time in legal proceedings.– (1) In computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded.

(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 judgment complained 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 be excluded.

(3)Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded.

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(4)In computing the period of limitation prescribed for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.

(5)For the purposes of sub-sections (2), (3) and (4), the time requisite for obtaining a copy of the decree, sentence, order, judgment or award shall be deemed to be the time intervening between the day on which an application for the copy is made and the day actually intimated to the applicant to be the day on which the copy will be ready for delivery.’

7.It is important to note here that the impugned judgment and decree was passed on 16.05.2023 and as month of May has 31 days, the period of 30 days prescribed for filing appeal was to expire on 15.06.2023 whereas the petitioner applied for obtaining the certified copies of the same on 15.06.2023 which was the last day. The certified copies were prepared and completed on 22.07.2023 and were ready for delivery, which were received by the petitioner on 09.04.2024 and appeal was filed on the same day. The claim of the petitioner is that the appeal was filed within time from the date of receipt of certified copy and the delay, if any, in filing the appeal was based on technicalities and was liable to be condoned. However, it is a fact that the certified copies of the impugned decree were received by the petitioner with a delay of about 08-months of passing of decree and seven months after application for obtaining certified copies was filed. The appeal was filed on the same date when copies were received. The petitioner alongwith appeal also filed an application under Section 5 of the Limitation Act, 1908 for seeking condoning the delay in filing appeal but said application does not mention that what was the date given to the petitioner for preparation and collection of certified copies of the impugned

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judgment and decree and also does not mention any reason to show that when the copies had been prepared on 22.07.2023, why the same had not been received before 09.04.2024.

8.It is not out of question to mention here that limitation provided under Article 152 of The Limitation Act, 1908, where-under appeal has to be filed within 30- days, is subject to the provisions of Section 12 of the said Act, which provides for exclusion of certain time from the period of limitation. In terms of Sub-Section (1), the day from which period of limitation is to be reckoned is to be excluded. In terms of Sub-Section (2), the day on which judgment was pronounced along with time requisite for obtaining certified copies of the same is to be excluded. Sub-Section (5) provides that the time requisite for obtaining a copy of the decree or judgment shall be deemed to be the time intervening between the day on which an application for the copy is made and the day actually intimated to the applicant to be the day on which the copy will be ready for delivery.

9.In terms of the aforementioned Section, in order to seek exclusion of time requisite for obtaining certified copies of impugned judgment and decree, the petitioner was required to show the day on which he filed application for obtaining the certified copy and the day actually intimated to him as the day on which the copy will be ready for delivery but the same has not been done, rather the only ground mentioned in the application for condonation of delay is that if delay is not condoned, he shall suffer an irreparable loss, whereas he had to explain delay of each and every day.

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10.In similar circumstances the Supreme Court in Mian Muhammad Sabir versus Malik Muhammad Sadiq (PLD 2008 SC 577), has held as under: ‘5. We have heard the learned counsel for the parties and examined the material available on record. Even according to the narrative furnished by the learned counsel, (viz. the appellant applied for the certified copy on 12-2-1998, it was prepared and ready for delivery on 21-2-1998 and the petition was filed on 30-10-1998) the petition was barred by 8 months and 9 days. The stance of the learned counsel is that if the time is computed from date of delivery of the certified copy of the impugned judgment, then the petition is within time. Learned counsel when asked as to why chit/receipt issued by the copying branch was not placed on record stated that he is not aware as to whether chit or receipt was issued by the copying agency or not as the certified copy was applied by the appellant. The learned counsel has also not been able to disclose about the date, which was given by the copying agency or indicated on the receipt issued by the copying agency to obtain certified copy. It is a matter of common knowledge that when a person applied for certified copy, the copying agency issues a receipt/chit indicating tentative date of preparation of certified copy and on that date an applicant is obliged to enquire from the copying agency as to whether the requisite copy is prepared or not. Interestingly, the appellant in his application for condonation of delay even did not mention the date given by the copying agency to the appellant for obtaining the certified copy of the judgment. This Court in a case reported as Fateh Muhammad and others v. Malik Qadir Bakhsh (1975 SCMR 157) has held 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 and that the time between the date on which the copy was ready for delivery, and the date on which the applicant chooses to take delivery thereof is not a portion of time "requisite" for obtaining a copy. Even section 12(5) of the Limitation Act is of no help to the appellant as he failed to produce the chit/receipt issued by the

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copying agency showing the date for preparation of certified copy, inasmuch as, no such date has been indicated in the application for condonation of delay. Had the appellant produced a chit issued by the copying agency and the copy was not ready on the date indicated in the chit, then the appellant could have taken shelter under section 12(5) of the Limitation Act. This Court under the similar facts and circumstances of the case reported as Zulfiqar Ali v. Superintendent of Police and others (2003 SCMR 1562) refused to condone the delay of nearly 50 days while in the present case the delay is of 249 days. The case of Zulfiqar Ali (ibid) applies to the facts and circumstances of the case in hand on all fours.

6.There is another aspect of the case. The appellant applied for certified copy on 12-2-1998 and he waited for a period of nearly eight months to inquire about the copy, as he obtained the copy on 1-10-1998. The appellant after applying for the certified copy of the judgment went into a deep slumber and did not enquire from the copying agency about the fate of his application for the grant of certified copy for approximately eight months. Even if it be presumed that no chit/receipt was issued by the copying agency, the appellant was a prudent person should have acted with reasonable promptitude and diligent and should have approached the copying agency inquiring about certified copy within a reasonable time. The appellant was extremely negligent in securing the certified copy of the judgment and did not bother to inquire from the copying agency about the preparation of certified copy for nearly 8 months, which was ready for delivery on 21-2-1998. Learned counsel for the respondents has rightly referred para-3 of the application for condonation of delay, in which the appellant stated that he visited the copying branch several times for collecting the certified copy but was told that the same has not yet been prepared. Suffice it to say that the said assertion, on the face of it seems to be erroneous. Had the appellant visited the copying agency after 21-2-1998 he would have definitely got the certified copy as according to him it was prepared on the said date. It leads to the irresistible conclusion that the appellant never visited copying agency during the period from 21-2-1998 to 1-10-1998.

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7.Seeing from any angle, the appellant has not been able to sufficiently explain the inordinate delay of 8 months and 9 days within the parameters of law. Thus, the petition was grossly barred by time and we see no sufficient cause to condone this inordinate delay.

8.For foregoing reasons, the petition was barred by time which is hereby dismissed and leave granting order is rescinded.’

11.The facts of the instant case are similar to the facts of the case in the judgment referred to above and are on all fours and same principles of law would be applicable to it as the petitioner has failed to produce the chit/receipt issued by the copying agency showing the date for preparation of certified copy, inasmuch as, no such date has been indicated in the application for condonation of delay. Had the petitioner produced a chit issued by the copying agency and the copy was not ready on the date indicated in the chit, then the petitioner could have taken shelter under section 12(5) of the Limitation Act, 1908. Furthermore, the petitioner applied for certified copy on 15.06.2023 and he waited for a period of nearly eight months to inquire about the copy and he obtained the copy on 09.04.2023. The petitioner after applying for the certified copy of the judgment went into a deep slumber and did not enquire from the copying agency about the fate of his application for the grant of certified copy for approximately eight months. Even if it be presumed that no chit/receipt was issued by the copying agency, the petitioner was a prudent person should have acted with reasonable promptitude and diligence and should have approached the copying agency inquiring about certified copy within a reasonable time. The petitioner was extremely negligent in securing the certified copy of the judgment and did not bother to inquire from the copying

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agency about the preparation of certified copy for nearly 8 months, which was ready for delivery on 22.07.2023. Had the petitioner visited the copying agency after 22.07.2023 he would have definitely got the certified copy as according to record it was prepared on the said date. It leads to the irresistible conclusion that the petitioner never visited copying agency during the period from 15.06.2023 to 09.04.2024. Seeing from any angle, the petitioner has not been able to sufficiently explain the inordinate delay of nearly 8 months within the parameters of law. Thus, the appeal filed by him was grossly barred by time and there is no sufficient cause to condone this inordinate delay.

12.In view of the facts narrated above read with principles laid down in the afore-referred judgment, the petitioner has failed to make out a case for condoning delay in filing the appeal and it is held that the learned appellate court had rightly dismissed the appeal as time barred.

13.The next question that arises in this revision is that as this Court has held that appeal had been rightly dismissed as time barred, whether this Court can look into the legality of order passed by the trial court. The answer to the said question is that this Court under section 115 CPC is empowered to exercise suo motu power of revision to look into the legality and exercise of jurisdiction by the trial court, even if the appeal filed before the appellate court was barred by time. Reliance is placed on Federal Board of Intermediate and Secondary Education through Chairman versus Azam Ali Khan (2017 YLR 906 Islamabad) and Town Municipal Administration, Town-1, Peshawar versus Rifat Hussain (2003 CLC 1370 Peshawar) wherein despite the fact

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that appeal was dismissed as time barred, suo motu revision was exercised to correct the jurisdictional defect in the orders of trial court. The power of suo motu revision vested by law in this Court cannot be curtailed or lightly taken away for the reason that no time limit has been prescribed for exercise of such power. Reliance is placed on Muhammad Swaleh and another versus Messrs United Grain & Fodder Agencies (PLD 1964 SC 97), Waqas Shahzad versus Inspector General Police Punjab, Lahore and others (2024 SCMR 605), Hafeez Ahmad versus Civil Judge, Lahore and others (PLD 2012 SC 400), Mst. Banori versus Jilani through Legal Heirs and others (PLD 2010 SC 1186) and Lahore Development Authority through Director General versus Farah Inam and 5 others (2025 MLD 182 Lahore). It is pertinent to mention here that suo motu powers of revision could be exercised to correct the jurisdictional defect in the order of trial court, even if the affected party had not called the same in question before the appellate court by filing an appeal. Reliance is placed on Manager, Jammu & Kashmir State Property in Pakistan versus Khuda Yar and another (PLD 1975 SC 678) and Messrs United Bank Limited versus Yousuf Haji Noor Muhammad Dhadhi (1988 SCMR 82). In the former judgment (Khuda Yar’ case) it is provided that although ordinarily, Courts have declined to exercise the revisional jurisdiction where an alternative remedy is available, yet this is not an inflexible rule to be rigidly followed and a departure could be justifiably made if required by the circumstances of the case. 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

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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. Whereas in the latter judgment (case of United Bank Limited), while relying upon the former judgment the Supreme Court set aside the order of High Court whereby it had dismissed the revision petition for the reason that the appeal against the order of trial court had not been filed before the Appellate Court, whereby the trial court had dismissed the suit filed by United Bank Limited under Order XI Rule 21 CPC for non- compliance of order to submit affidavit of documents on the ground that the appellants neither filed an affidavit of documents nor offered inspection of the same. The Supreme Court held that as affidavit had been filed, the order of trial court was not based upon proper exercise of jurisdiction, hence under the given circumstances of the case, the High Court should have entertained the revision and by setting aside the impugned orders remanded the matter to the trial court for decision afresh.

14.In view of what has been discussed above, it is held that this Court is empowered to check the legality of the order of the trial court by examining question relating to jurisdictional defects, if any despite the fact that appeal has been dismissed as time barred.

15.As regards the question of provision of sufficient opportunity to record evidence, from the record it is noted that respondents who are daughters of deceased Muhammad Shafi Shakir categorically denied that their father had entered into agreement to sell with the petitioner and received consideration and transferred

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possession of the property and 8 issue were framed accordingly. The petitioner was provided several opportunities to lead evidence but he failed to produce the same. The learned trial court observed that onus to prove issues No.1 to 3 was placed upon the petitioner (plaintiff), however, despite availing several opportunities in said regard on 14.11.2019, 17.12.2019, 12.11.2020, petitioner failed to lead any evidence in the suit. On 12.11.2020, petitioner filed application for submission of list of witnesses which was accepted on 07.09.2021 with costs of Rs.3000/- and petitioner was directed to produce evidence but despite availing two further opportunities, he failed to record the same and on 29.09.2021, no one appeared on behalf of petitioner resultantly suit was dismissed due to non-prosecution. Later on, suit was restored on application of petitioner vide order dated 05.09.2022 but again petitioner despite availing several opportunities on 15.12.2022, 04.01.2023, 18.04.2023, failed to lead any evidence in the suit. The petitioner had again made a request for adjournment on 16.05.2023 but the same was turned down as no plausible justification whatsoever for non-production of evidence was provided and the right to produce evidence was closed and suit was dismissed under Order XVII Rule 3

CPC.

16.In view of the above narration of facts it is concluded that sufficient opportunity was provided to the petitioner to lead evidence but he failed to discharge the onus placed on him by producing evidence and therefore the right to produce evidence was rightly closed and in

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view thereof it is observed that no ground was made out for providing further opportunity to the petitioner to lead evidence. For reaching the said conclusion reliance is placed on Moon Enterprises CNG Station Rawalpindi versus Sui Northern Gas Pipelines Limited through General Manager, Rawalpindi and another (2020 SCMR 300), Imran Ahmad Khan Niazi versus Mian Muhammad Shahbaz Sharif (2023 SCMR 636), Duniya Gul and another versus Niaz Muhammad and others (PLD 2024 SC 672), Muhammad Asim versus Dr. Abdul Hamid Jan and others (2025 SCMR 624) and Muhammad Akram versus Shafaqat Ali (2025 SCMR

17.No misreading or non-reading of record or illegality or jurisdictional defect has been pointed out in the impugned order passed by the learned appellate court, whereby appeal filed by the petitioner has been dismissed as time barred and no ground has been made out to interfere in the order passed by the learned trial court, whereby right of the petitioner to produce evidence has been closed, therefore there is no plausible ground for this Court to warrant interference in the well-reasoned order and judgment & decree impugned herein.

18.For what has been discussed above, this petition being devoid of merits is dismissed.

(MUZAMIL AKHTAR SHABIR)

JUDGE

Naveed*

APPROVED FOR REPORTING