Umer Khan Vs Member Board of Revenue etc

JI'DGUEITT SHEET

IN THE PESHAtrIAR HIGH COURT,

BANIVU BEITCH.

lJudicial Department;

W.P No.316-812022 Umer Khan & others u) Vs.

Member Board of Revenue & others.

JT]DGMENT

Date of hearine: 27.4.2023

For Petitioner: Syed Hamood-ur-Rahman. Advocate.

For Respondents: Mr. Aman Ullah Jan Khattak. Advocate.

****tftt*

FAZAL SUBHAN. J. Umer Khan and others have filed this writ petition against the respondents under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (constitution) read with section 52 of Khyber Pakhtunkhwa Tenancy Act, 1950 and prayed as following:

"On acceptance of this unit petition, this Hon'ble Court may very graciously be pleased to set aside order dated 17.3.2022, returning case No.3 161202|2llvIBR-I, titled Umer Khan etc Vs. Syed Ali Akbar Shah etc by respondent No.l and to direct that, the case be decided on merits according to law, by respondent No.l being the proper forum."

) Concisely facts of the case are that

respondent Syed Ali Akbar Shah etc instituted a suit for eviction of the present petitioners from the property bearing Khata No.977, Katoni No.2567, Khasra Nos.

1320,1326, 1330,133 1,1324,1329,1322, I 333 and I 356 to the extent of 163-kanal 8 marla out oftotal area 186- kanal l8-marla or whatever area is found as their entitlement to revenue record, situated at village Mumbati Barakaai Tehsil & District Bannu (hereinafter called disputed property), claiming that the petitioners are tenant at will and holding the disputed property on behalf ofthe respondents, who have failed to pay their share of produce/mesne profit hence they are liable to eviction from the disputed property.

? 3 After institution of suit before the learned Additional Assistant Commissioner, Bannu, notices were issued to the present petitioners who appeared and file their written statement, raising legal and factual objections and at the same time denying the relationship of landlord and tenants between the parties. From the divergent claims of the parties issues were framed, whereafter both the parties availed the opportunity of producing their respective evidence. The respondents

produced Qamar Ali Patwari Halqa, Musharaf Khan ADK, Syed Waqar Ali Shah for himself and as attomey for rest of the respondents and Syed Atif Ali Shah, whereas the present petitioners produced and examined Hanif Ullah Khan Patwari Halqa, Umer Nawaz Khan, Muhammad Bostan, Naqeeb [Jllah Khan, Zemmadar Khan and Naip Khan. After recording evidence and hearing arguments from both sides, the Additional Assistant Commissioner-Il, Bannu vide its judgment dated 06.3.2019 accepted the suit ofthe respondents and passed an eviction order against the petitioners and the petitioners, thereafter, filed appeal before the Collector/ Deputy Commissioner, Bannu, however, the same was dismissed on 15.01,2021. Against the said judgment the petitioners filed appeal No.l69l2019 which was partly accepted and the case was remanded to the appellate Court of Additional Deputy Commissioner, Bannu for decision of appeal on merit. Being not satisfied with the said order/judgment the petitioners filed revision petition under section 56 of the Khyber Pakhtunkhwa Tenancy Act, 1950 and after hearing both the sides the leamed Member-I Board of Revenue disposed of the revision petition with the following observations:-

"Keeping in view the above mentioned facts, points of law and findings arrived at, the instant revenue revision petition before this Court is hereby disposed off and the present petitioners are directed to approach the proper forum i.e. Additional Commissioner, Bannu Division at Bannu, against the impugned order dated 15.01.2021 of Additional Deputy Commissioner, Bannu."

4 Still not in agreement with the findings of the Member Board of Revenue/ respondent No.l, the petitioners have filed the instant writ petition.

5 Arguments of leamed counsel for petitioners and that of learned counsel for respondents heard and record perused.

6 From the record it transpires that respondent No.5 to 13 instituted a suit for eviction of the present petitioners from the suit property on the ground of being non-payment ofshare in the produce and damage caused to the property. After recording pro and contra evidence in the case, the Additional Assistant Commissioner granted a decree in favour of respondents which was challenged in appeal but it was dismissed on technical

ground i.e. on the ground of limitation. Order of the Additional Assistant Commissioner, Bannq, reveals that while considering the fact that the petitioners applied for copy of the judgment on 06.3.2019 but they were provided copies on 25.3.2019 and they filed appeal on 11.4.2019 and, therefore, time spent in getting copies have to be excluded while computing the period of limitation. Section 12(2) of the Limitation Act, 1908, (Act) is reproduced for the sake of convenience:- "12 Exclusion of time in legal proceedings.- (l).............

(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 complaint 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."

The 'time requisite" mentioned in section l2(2) of the Act, has been elaborately explained in the case of "Mst.

Aneela Zehra-Ys-Kaleem Haider ansl l0 othe,rs". reported in (2021CLC 73) as:-

*It can safely be added that the time consumed in obtaining the copy needs to be excluded unless circumstances proves, prima facie, negligence on part of the litigant and such litigant attempts to substitute his own negligence under shade of said provision. It, however, needless to clarifr that time requisite would mean the 'interval between date of application for supply of copy and date when copy is ready for delivery'. This term, however, shall have no nexus with act of litigant in collecting / receiving the same."

7 In case of "Jamila Khatoon and another-Vs- Mst- Taiunnisa and ertt PLD 19 84 Se 208 the word "time requisite" has been elaborately discussed as:- "7. ..... This rule only relates copies ready for delivery to be included in a list on the notice board and since prior to 28.11.1975 the copy was not ready for delivery for want of stamp, it could not be included in the lit under tis rule. Otlerwise, apparently the appellant seems to have been aware on the aforesaid date when he supplied the stamps to the office, that the copy will be ready for delivery as soon as certification was made thereon, which is clear from the fact that he received the delivery of the copy within three days on 1.11.1975. It has been held by this Court in

the case of Fateh Muhammad v. Malik Qadir Bakhsh (l) that time requisite for obtaining copy means only the interval between the date of application for supply of copy and the date when it is ready for delivery, but 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 circumstances over which he has no control and which could not by due diligence be avoided, can form part of time "requisite" for obtaining the copy",

8 From the careful perusal of the above referred provision, it is clear that the time spent for getting copies of the judgment has to be excluded from being counted for the purpose of limitation and, therefore, the order passed on 10.122019 by the Additional Assistant Commissioner, and upheld by the Member-I Board of Revenue is legally and patently correct and as the petitioners have been unable to point out any illegality, inegularity or jurisdictional error therein, hence this revision petition being meritless, stands dismissed.

{,Cr., ) ' i.rl Announced.

oliw 27.4.2023 Ihsan JUDGE rl\!ililtl Nll ir |, (s.B) Hon'ble Mr. Justice Fazsl Subhan.