ASHIQ HUSSAIN SHAH vs PROVINCE OF PUNJAB through Collector District, Attock and 6 others

' MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 185 (3) of the Constitution of Islamic Republic of Pakistan, 1973 has been filed seeking leave to appeal against the judgment dated 1-11- 2001 passed by a learned Single Judge of Lahore High. Court, Rawalpindi Bench, Rawalpindi in civil revision arising out of suit of declaration and permanent injunction.

2. The petitioner filed a summary suit for possession against Province of Punjab and others setting up the claim of ownership of the suit-land. The petitioner pleaded in the suit that the defendants having forcibly occupied the land owned by him, adjacent to the Patwarkhana, have started construction of a new Patwarkhana. The learned Civil Judge 1st Class, Attock, decreed the suit ex parte vide judgment dated 27-1-1992 and on 21-9-1992, the petitioner filed a petition under Order XXI, rule 32, C.P.C. For execution of the decree. Pending disposal of the above said application respondents filed an application under Order IX, rule 13, C.P.C. On 23-1-1993 for setting aside the ex parte decree. The learned Civil Judge vide order dated 17-4-1995 without passing an express order in the application for setting aside the ex parte decree, allowed the application under Order XXI, rule 32, C.P.C. ,and issued direction for the removal of construction and restoration of possession to the petitioner. The appeal preferred by the respondents against the said order was allowed by the learned Additional District Judge, Attock, vide judgment dated 18-9-1996, with the observation that the disposal of two contradictory applications by single order was not proper and while setting aside the order, remanded the case to the Civil Judge for separate disposal of applications. The order of the Appellate Court was assailed by the petitioner by way of filing a civil revision in the High Court and learned Single Judge while upholding the order in appeal, dismissed the civil revision through the impugned judgment.

3. Learned counsel for the petitioner has contended that application for setting aside the ex parte decree was moved with an unexplained delay of about one year which being not entertainable could not proceed and that the appeal against the order passed by the learned Civil Judge in the application under Order XXI, rule 32, C.P.C. Was also barred by time. The learned counsel argued that no satisfactory explanation was offered in the application under section 5 of the Limitation Act, 1908 moved by the respondents for condonation of delay tnit the Appellate Court without attending the question of limitation allowed the appeal. The learned counsel while placing reliance oil Chairman, District Evacuee Trust v. Abdul Khaliq PLD 2002 SC 436 and Dilmir v. Ghulam Muhammad PLD 2002 SC 403 contended that it was the duty of the Court concerned to take into consideration the question of limitation irrespective of the fact whether the said question was agitated before it or not and should have consciously decided the question of limitation before proceeding on merits of the case. Learned counsel added that Government departments stand at par in the matter of legal rights and no preferential treatment can be given to the Government to that of ordinary litigants.

4. The perusal of the averments of the plaint would show that prior to the filing of suit, a criminal case under section 447, P.P.C. Was registered against the petitioner for illegal occupation of above land. In the suit the petitioner claimed that the Patwarkhana was situated adjacent to the land in dispute and in the written statement, the stand of the respondents was that the suit-land was owned by the Province of Punjab and was in possession of Patwarkhana as per demarcation held on 4-12-1989 and that the new building of Patwarkhana was being constructed on the land owned by the Government. It was stated in the application for setting aside the ex parte decree that the official who was deputed to pursue the suit, neither appeared before the Court nor informed the concerned authorities that the suit was decreed ex parte. We having gone through the judgment in appeal find that the question of limitation was not dealt with as such and respondent also did not offer sufficient explanation for non-appearance in the Court but we cannot permit the taking away the Government property for the negligence of subordinate officials. The manner in which the matter was pursued by the subordinate officials would show that they did not properly watch the Government interest and the possibility of their being in league with the petitioner being not ruled out, we are not in favour of non-suiting the respondents on technical grounds and would prefer that the rights of parties should be determined in the property on merits, therefore, notwithstanding the disposal of appeal on merits without dealing with the question of limitation in express words, it would be deemed that there was implied condonation of delay.

5. For the foregoing reasons, we do not find any substance in this petition which is dismissed and leave is refused.