ZABITA KHAN Versus SALEH MUHAMMAD

ORDER

ASLAM RIAZ HUSSAIN, J. ‑‑Zabita Khan etc. petitioners seek leave to appeal against the judgment of the Peshawar High Court dated 22‑2‑1984, dismissing their Civil Revision regarding execution proceedings arising out of suit for redemption of mortgage filed by them. Faqirullah mortgaged his land with Saleh Muhammad etc,. (respondents). Faqirullah filed a suit for redemption of mortgage against Saleh Muhammad in the Court of Civil Judge Sawabi. The suit was finally decreed in his. favour on 29‑3‑1903. Later on Faqirullah assigned the decree in favour of Zabita Khan etc. (present petitioners) who had purchased the land in dispute in 1960. Zabita Khan etc. initiated execution proceedings against the respondents but their application was dismissed on 20‑11‑1970 by the learned Civil Judge, Swabi on the ground that they were not entitled to get the execution of the decree passed in favour of Faqirullah Khan and were directed to file a regular suit for possession of the suit land, Zabita Khan etc., thereupon, filed a suit for possession against Saleh Muhammad and others on 9‑2‑1971, in the Court of the learned Civil Judge, Swabi, who decreed it on 19‑10‑1972. On appeal the learned District Judge, Mardan set aside. The judgment and decree of the learned Civil fudge holding that the suit was barred under section 47 of the Civil Procedure Code. A revision against the said judgment was filed by the petitioners in the High Court at Peshawar which was dismissed on 12‑11‑1973.

2. The petitioners, therefore, again filed an application for the execution of the decree passed in favour of Faqirullah Khan dated 29‑3‑1963 but the respondents/judgment‑debtors objected to the application on the ground that it was barred by time. The executing Court upheld the objection and refused execution by order dated 25‑1‑'1975.

Dissatisfied with the said order the petitioners filed an appeal in the Court of District Judge, Mardan who concurred with the view taken by the learned executing Court and dismissed the appeal. The petitioners then assailed this order before the High Court through a Civil Revision, which in turn was dismissed as barred by time on the ground that it had been filed on 4‑1‑1979 after lapse of about 3‑1/2 years.

Hence the present petition for leave to appeal.

3. Learned counsel for the petitioners submitted that in the circumstances of this case the delay in filing the civil revision should have been condoned by the High Court. He submitted that after the dismissal of his appeal by the learned I District Judge, on 25‑1‑1975, he had entrusted his case for filing of a revision, to Mr. Sardar Khan, Advocate Peshawar High Court, but for certain reasons the later did not file the revision within time. He had therefore to engage another counsel for that purpose. He submitted that after having purchased the land in dispute and after the suit had been decreed in favour of the petitioners they had been running from pillar to post, they first filed an application in the executing I Court which directed him to file a civil suit for possession and when he filed the civil suit he was again required to file execution proceedings, that from the time they purchased the land from Faqirullah Khan, the petitioners have been continuously pursuing their remedy in one Court or the other and the very fact that they had gone from one Court to another either in execution or through civil suit or appeal or civil revision shows that they have never been negligent and had all along, diligently pursued the remedy in accordance with the advice given to them either by the Court or by their counsel. He explained that delay in filing the civil revision was not due to negligence on the part of the petitioners. He showed an affidavit filed by the petitioners to the effect that he had-entrusted the matter to Mr. Sardar Khan, Advocate for the purpose for filing civil revision in the High Court, but naturally the latter has not given him an affidavit supporting this assertion although he has admitted having dealt with the matter at the relevant stage:

Learned counsel vehemently urged that petitioners, case was squarely covered b the provision of Section 14 and relied on Nazir Muhammad and covered by another v. Mst. Shahzada Bcgum (P L D 1974 SC 22) and Manager Jammu and a Kashmir State Property in Pakistan v. Khuda Yar and another (P L D 1975 SC 678, to argue that technicalities should not be allowed to hinder the dispensation of justice in a case of this nature where petitioners have never been at fault or negligent.

4. We feel that in the peculiar circumstances of this case the matter needs further consideration.

Security for costs in the sum of Rs.1,000

To be heard on the same record with permission to file additional documents.

M.A.K./Z‑43/S Leave granted