CANTONMENT BOARD, RAWALPINDI vs MUHAMMAD SHARIF through Legal

ORDER

' MANZOOR HUSSAIN SIAL, J.---The Cantonment Board, Rawalpindi, petitioner herein, seeks leave to appeal against judgment dated 7-7-1994 passed by the Lahore High Court in L.PA. No,502 of 1964.

2. The facts, in brief, giving rise to this petition are that Muhammad Sharif, predecessor-in-interest of the respondents on 18-3-1959 instituted suit for possession of land measuring 100 Kanals 4 Marlas situated in village Kotha Kalan, Tehsil and District Rawalpindi, presently forming part of Ayub National Park. He claimed that he was owner of that land and had been wrongfully dispossessed by the petitioner. The suit was contested by the defendant and in the written statement it was pleased that the petitioner had become owner of the land by adverse possession. The learned trial Judge framed the following issues arising out of pleadings of the parties:--

(1) Is the notice served on the defendant not in accordance with law? OD

(2) Is the plaintiff's suit time-barred? OD

(3) Has the plaintiff been in possession of the land in dispute within 12 years prior to the institution of the suit? OP

(4) Is the plaintiff the owner of the land in dispute? OP

(5) Relief.

' The parties led evidence in support of their pleas and the learned trial Judge vide judgment dated 30-10-1959 decreed the suit in favour of the plaintiff. The petitioner appealed against the aforesaid judgment and decree, but the same was dismissed by the learned District Judge, Rawalpindi, on 11- 3-1960. Thereafter, the petitioner filed review petition against the judgment passed in appeal but that too was dismissed on 23-11-1960 by the learned District Judge, Rawalpindi.

3. Aggrieved by the dismissal of his appeal as also his review petition by the District Judge he filed R.S.A. No,45/61 (which was registered as civil revision) in the Lahore High Court on 14-1-1961. The learned Single Judge vide judgment dated 8-6-1963 condoned the delay occurred in filing the appeal and allowed the appeal with costs.

4. The respondents filed L.P.A. No,502 of 1964 which was allowed on 7-7-1994 by the Division Bench of the Lahore High Court vide impugned judgment referred to above.

5. Learned counsel for the petitioner contended that the learned Judges in the Lahore High Court did not advert to the prayer made by the petitioner to treat the appeal as revision petition for which no period of limitation was prescribed and could not have been dismissed on the ground of limitation. It was next contended that the period consumed in prosecuting the review petition was rightly excluded by the learned Single Judge while computing the period of limitation, the finding of the Division Bench to the contrary was untenable. It was lastly contended that the discretion exercised by the learned Single Judge in condoning the delay for filing the appeal in the High Court was illegally interfered with by the learned Judges of the Division Bench of that Court.

5-A. We have heard, learned counsel for petitioner at some length but feel ourselves not persuaded to grant leave to file appeal in the matter.

6. The contentions raised before us were also pressed into service before the learned Judges of the Lahore High Court which were duly considered and repelled for valid reasons.

As regards the first contention it may be observed that the judgment and decree dated 11-3-1960 passed by the learned District Judge, Rawalpindi, was appealable; therefore, no revision was competent before the learned High Court under section 115, C.P.C. The petitioner, in fact, filed second appeal in the. High Court on 14-1-1961. The learned Single Judge decided the same as appeal and delay in filing thereof was condoned. The submission made by the learned counsel for the petitioner for the treatment of the appeal as revision after the reversal of the judgment passed in appeal was untenable.

' As far as the second contention is concerned the judgment and decree passed by the learned District Judge, Rawalpindi dismissing the petitioner's appeal on 11-3-1960 was challenged before the High Court in second appeal on 14-1-1961. The time prescribed for filing the appeal under Article 156 of the Limitation Act was 90 days. The petitioner was entitled to 13 days, consumed in obtaining the certified copies of the judgment and decree under appeal. The appeal was admittedly filed on 14-1-1961 and in this way barred by 203 days. It is well-established that once time begins to run it does not stop. The prosecution of the review petition before the learned District Judge and time spent therefor could not be excluded under section 14 of the Limitation Act. Similarly, the time spent in obtaining copy of the order passed in review could not be excluded by presenting appeal in the High Court against judgment and decree of the learned District Judge, Rawalpindi. The discretion exercised by the learned Single Judge in condoning the delay in filing the appeal was contrary to settled legal position and result of misreading the record which was rightly interfered with by the learned Judges of the Division Bench of the Lahore High Court. This view finds ample support from the rule laid down in Khawaja Muhammad Afzal etc. v. Sh. Muhammad Sadiq and others 1988 SCM R 179 as also in Ahmad Din v. Mst. Rasul Bibi PLD 1968 SC 213.

' For the foregoing reasons we find no merit in this petition. It is, accordingly, dismissed and leave refused. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.