ABID HUSSAIN and others vs AZIZ FATIMA and others

ORDER

1. ' MAMOON KAZI, J.--The brief facts of the case are that a suit was filed by respondent No,1 against the petitioners and respondents Nos.2 and 3 challenging validity of Mutation. No,876, dated 25-9- 1958, in respect of a piece of land situated in Mauza Latkaran, Tehsil and District Mnzaffargarh, which was decreed in favour of respondent No,1 on 26-6-1989. Respondents Nos.2 and 3 did not contest the suit but the petitioners filed an appeal against the judgment of the Civil Judge which was also dismissed and consequently a revision was filed by the petitioners before the Lahore High Court against the judgment of the appellate Court, dated 24-11-1990. The revision was filed on 2-3- 1991, but the same was returned to the petitioners' counsel on 16-3-1991 for removal of certain objections. However, the counsel retained the record of the revision till 27-2-1993, when it was refiled before the Court. Before the Court, the counsel failed to offer any plausible explanation in respect of the delay caused in refiling the revision. Although, according to him, the record of the case was kept by him in order to enable the parties to arrive at a compromise, but when the same was not possible, the revision was filed again. The learned Judge in Chambers, who heard the revision, was, however, not impressed and, therefore, the revision was dismissed as "hopelessly time-barred". The learned Judge further found that there were concurrent findings of fact given by the Court below.

2. ' Before us the main contention of the learned counsel for the petitioners has been that no period of limitation has been prescribed by the law for filing a revision under section 115 of the Civil Procedure Code and provisions of section 115 can be invoked by a party as a matter of right and not only as a privilege and, therefore, it was imperative for the learned Judge of the High Court to consider the merits and circumstances of the case which led to delay in removing the objections. Support has been sought from an earlier judgment of this Court in Karamat Hussain and others v. Muhammad Zaman and others (PLD 1987 SC 139). In this case, with reference to the revisional powers of the High Court under section 115 of the Civil Procedure Code, it was observed (page 144 of the report) as under:-- "True, the exercise of this jurisdiction by the High Court is discretionary but that does not mean that a revision is not a right but only a privilege. A privilege is some particular benefit or advantage conferred on a person or a class of persons which other citizens do not enjoy; while a right is some benefit conferred on a person by virtue of a given law. Here, the provisions of section 115 of the C.P.C. Confer on every person who has litigated before a Court subordinate to the High Court the right to assert before the latter that the decision rendered by the subordinate Court against him is liable to correction under its revisional jurisdiction. Indeed where the conditions for the exercise of revisional jurisdiction are satisfied the High Court should itself interfere. Of course, it may in certain circumstances, in exercise of its judicial discretion, refuse to exercise its discretion in favour of the petitioner such as where the petitioner has approached the Court, without reasonable cause, with undue delay or his conduct has been contumacious or because of the existence of some other special circumstances which disentitle him from relief. But the mere fact that the exercise of revisional jurisdiction is discretionary does not mean that it is a privilege. Even the writ jurisdiction conferred upon the High Courts by the Constitution is discretionary. But the right to apply for a writ is certainly not a privilege. On the contrary, it is one of the most valuable rights that can be conferred upon a citizen."

3. No doubt, as is clearly evident from the above observations, a revision is not merely a privilege when a decision of the subordinate Court is liable to correction and all other conditions for the exercise of such jurisdiction are satisfied but, as can be further spelt out from the observations, the High Court may decline to grant relief to the petitioner under circumstances such as where the petitioner has approached the Court without a reasonable cause or his conduct has been contumacious or the revision has been filed after undue delay or some other similar circumstances exist which disentitle him to such relief. Therefore, it would be erroneous to assume that such power must be exercised under all circumstances notwithstanding the fact that the petitioners' own conduct has been contumacious or the circumstances of the case do not justify exercise of such power. Even the language employed in section 115, C.P.C. Nowhere suggests that the Legislature intended to lay down any different perameters for the exercise of such jurisdiction.

4. In the present case, as was pointed out earlier, the petition was kept for nearly two years before it was refilled on 27-2-1993 before the Court. The reasons for the delay assigned before the Court were far from sufficient to invite indulgence by the Court. Even if it was the counsel's negligence, the petitioner was no less liable. No doubt no period of limitation has been provided by the law for filing a revision before the High Court, but this difficulty was ultimately resolved by this Court by granting its approval to the practice earlier adopted by the Lahore High Court of fixing the period of ninety days for filing a revision before the High Court. Reference in this regard may be made to the judgment of this Court in Riasat Ali v. Muhammad Jaffar Khan and others (1991 SCM R 496).

5. However, the rule which was referred to in the judgment as a rule of thumb, was partially diluted as would appear from the following observations made in the said judgment:-- 'However, this Court in Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar (PLD 1975 SC 678) has held that revision petitions even though filed beyond the period of 90 days can be entrained, if the Court is satisfied as to the reasons for the delay. It should not be forgotten that the scope of the revisional powers, though hedged by conditions, is nevertheless vast and corresponds to a remedy of certiorari and the supervisory jurisdiction can be invoked by the Court suo motu and the Court can also make 'such order in the case as it thinks fit'."

6. ' However, this does not mean that this Court intended to extend such period of ninety days without placing any onus upon the petitioner to explain the delay. Since the circumstances of the present case did not admit of any concession which could be shown by the High Court in favour of the petitioners in this behalf, it appears that the discretion exercised by the learned Judge of the High Court was proper and thus no exception can be taken to the same.

7. ' In the result, leave is refused and the petition is dismissed.