MUHAMMAD AFZAL Versus MUHAMMAD HAYAT

NASIM HASAN SHAH, J: ‑‑ The appellants herein filed an appeal against the order of the Sub‑Divisional Canal Oficer on 16‑8‑1983 in respect of the right of Nigal water before the Divisional Canal Officer. The learned Divisional Canal Officer accepted the appeal vide order dated 25‑10‑1983. Respondent No.1 challenged the said order of the Divisional Canal Officer through a declaratory suit which was dismissed by a learned Civil Judge 1st Class, Sargodha vide judgment and decree dated 10‑1‑1988.

2. Feeling dissatisfied, the respondents filed an appeal which was heard by an Additional District Judge. The learned Additional District Judge accepted the appeal on the short ground that the appeal against the order of the Sub -Divisional Canal Officer dated 16‑8‑1983 filed by the appellants before the Divisional Canal Officer was barred by time. The judgment of the Additional District Judge was passed on 2‑5‑1988. The appellants filed a revision petition but the same was dismissed by a learned Single Judge of the Lahore High Court on 21‑3‑1990. Hence this appeal, by leave of this Court.

3. The learned Judge in the High Court appears to have rejected the revision petition on the ground that although in Para 3 of the plaint in the suit filed by the respondents it was averred as follows:

4. The aforesaid para 3 of the plaint was not specifically denied in the written statement filed by the defendats (appellants herein).

5. The learned Judge in the High Court has considered that the omission in this respect tantamounted to an admission. Hence the order of the learned Additional District Judge holding that the appeal of the appellants before the Divisional Canal Officer was barred by time was correct.

6. Before us, the learned counsel for the appellants has pointed out that there was no issue framed by the learned trial Judge (Senior Civil Judge, Sargodha) about limitation. The correct facts were that the appeal filed by the appellants against the order of the Sub‑Divisional Canal Officer dated 25‑7‑1983 was well within time. The application for copies of the order passed by the Sub‑Divisional Canal Officer was submitted on 25‑7‑1983 while the requisite copies were supplied on 13‑8‑1983; the appeal was filed before the Divisional Canal Officer on 16‑8‑1983, only three days after the copies were supplied. Therefore, the assertion that the appeal was barred by time was totally misconceived. In so far as no issue was framed on the point of limitation no evidence was led on this aspect of the matter. In these circumstances, finding of the Additional District Judge that the appeal filed by the appellants against the order of the Sub‑Divisional Canal Officer before the Divisional Canal Officer was barred by time was based on "no evidence" and was totally unjustified.

7. There seems to be force in these submisions. The learned Additional District Judge appears to have been influenced by the fact that the order of the Sub‑Divisional Canal Officer was passed on 25‑7‑1983 while the appeal before the Divisional Canal Officer was filed on 16‑8‑1983. Since the period of limitation for filing the appeal if 15 days, the appeal was out of time. The learned Judge unfortunately failed to consider the aspect as regards the number of days that were spent on obtaining the copies, for which deduction had to be made in law. Presumably, the learned Judge in the High Court did not examine this aspect of the matter on the consideration that as there was no express denial to the averment made in Para 3 of the plaint, the plea raised, stood proved the learned Judge failed to consider that there was no issue on the point of limitation and in such circumstances no finding could be given merely on the basis of the pleadings of the parties and in the absence of positive evidence being led by the parties on the said point. The enormity of this error becomes manifest when we find that the copy of the order to the Sub‑Divisional Canal Officer supplied to the appellants (and shown to us) reveals that an application for grant of copies was submitted on 25‑7‑1983, the date on which the order was made and the copies therefore supplied on 13‑8‑1983, only three days before the appeal was filed before the Divisional Canal Officer i.e. on 16‑8‑1983. Obviously without recording evidence on this point, any finding given thereon could not but be flawed. The judgment of the Additional District Judge dated 22‑5‑1988 and that of the High Court dated 21‑3‑1990 cannot, therefore, be sustained. They are, accordingly, hereby set aside.

8. The case shall be remanded to the District Judge, Sargodha, with the direction that he shall frame an issue on the question of limitation after summoning the parties and allow them to lead evidence thereon and re-decide the appeal on the merits of the case.

9. This appeal is allowed in the above terms, leaving the parties to bear their own costs.

AA./M‑1847/S Case remanded.