MUHAMMAD HANIF vs COLLECTOR/DEPUTY COMMISSIONER, KASUR AND 2

ORDER

On an application made by respondent No: 2, Mst. Hameeda Bibi, hereinafter referred to as the respondent, the Arbitration Council of Ward No. 10, Pattoki, Tehsil Chunian, District Kasur, issued a certificate requiring the petitioner, Muhammad Hanif, to pay Rs. 13,500 as maintenance to her. The certificate was challenged by him by filing a revision petition before the Collector, Kasur, but the petition was dismissed on the ground of limitation. The petitioner has, therefore, invoked Constitutional jurisdiction of this Court to assail the order of the learned Collector.

2. The certificate was issued on 17th January, 1981, but the revision petition was presented on 8th March, 1981. According to rule 16 of the West Pakistan Rules under the Muslim Family Laws Ordinance, 1951, the revision petition should have been submitted within thirty days of the certificate but it was filed about two months thereafter. Thus, the said petition was, obviously, time barred. The petitioner had made an application under section 5 of the Limitation Act, 1908, for condonation of delay but it was observed by the learned Collector that section 5 of the Limitation Act was not applicable to the revision petition.

3. It was contended by learned counsel for the petitioner that since there was no provision in the Muslim Family Laws Ordinance, 1961, making section 5 of the Limitation Act inapplicable to revision petitions taken to the Collector, the application of section 5 of the said Act to such petitions was not excluded.

4. Section 5 of the Limitation Act reads as follows :- "5. Any appeal or application for a revision or a review of judgment or for leave to appeal or any other application to which this revision may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period."

5. The other provisions of the above Act which have bearing on the point in issue are contained in subsection (2) of section 29 thereof and are to the following effect :- "(2) Where any special or local law prescribed for any suit, . Appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law-

(a) the provisions contained in section 4, sections 9 to 19, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and

(b) the remaining provisions of this Act shall not apply."

6. The words "by or under any enactment" appearing in section 5 of the Limitation Act indicate that that section does not apply to all enactments but its application can be extended to the provisions of any A enactment. In the case of special laws, application of section 5 of the Limita--tion Act has also been excluded by clause (b) of subsection (2) of section 29 of the said Act. The cumulative affect of these provisions of the Limitation Act is that section 5 thereof would not apply to a special enactment unless such an enactment contains an express provision extending thereto the application of section 5.

7. The Muslim Family Laws Ordinance is also a special enactment but, it does not embody any provision making section 5 of the Limitation Ac applicable to it. The mere fact that the said Ordinance does not expressly exclude application of section 5 of the Limitation Act to proceedings under the said Ordinance would, by itself, not extend the application of section 5 of the Limitation Act to such proceedings. Non-existence of any provision in the said Ordinance excluding application if section 5 of the Limitation Act would have been of some consequence of section 5 had also been mentioned in clause (a) of subsection (2) of section 29 of the Limitation Act but since that has not been done, the non-existence of the aforementioned provision is of no avail to the petitioner. I am, therefore, clear in my mind that section 5 of the Limitation Act was not available to the petitioner for seeking condonation of delay in the submission of his revision petition under the said Ordinance. As the petition was, undoubtedly, time barred, order of the learned Collector dismissing the petition on the ground of limitation is unexceptionable.

8. This writ petition, accordingly fails. It is dismissed in limine.