MUHAMMAD SHARIF and 8 others vs REHMAT KHAN through Muhammad

1. ' MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 seeking leave to appeal has been preferred against the judgment, dated 28-5-2001 passed by a learned Single Judge of Lahore High Court, Rawalpindi Bench, in a revision petition under section 115, C.P.C. Filed by the present petitioners against the concurrent findings of fact of the two Courts in a suit for permanent injunction.

2. ' Rehmat Khan (deceased) instituted a suit for permanent injunction and for removal of encroachments made by the present petitioners on land measuring 7 Marlas which was part of Shamalat Deh jointly owned and possessed by the residents of the village and reserved for graveyard. The learned trial Judge dismissed the suit on the short ground that the same was filed without permission of the Advocate-General as required under section 91, C.P.C. However, in appeal, the case was remanded by the Appellate Court to the trial Court for decision on merits and the learned trial Judge vide judgment, dated 29-11-1982 decreed the suit. The appeal preferred by the petitioners against the judgment and decree passed by the trial Court was dismissed by the learned District Judge, Chakwal, vide judgment, dated 3-12-1986. The petitioners then invoked revisional jurisdiction of the High Court in the matter and a learned Single Judge dismissed the revision petition through the impugned judgment.

3. ' This petition is barred by 18 days. Learned counsel for the petitioners has filed a miscellaneous application under Order XIII, rule 1 read with Order XXXIII, rule 6 of Supreme Court Rules, 1980, for condonation of delay in filing this petition. The explanation offered by the petitioners for condonation of delay is that since the mother of petitioner No,1 was admitted in Federal Government Services Hospital, Islamabad, on 18-6-2001 and she in serious condition was expired on 1-7-2001 in the hospital and during this period due to the extraordinary circumstances, the petitioners could not arrange filing of the petition in this Court and then petitioner No,1 fell ill and was advised by the doctor for bed rest from 8-8-2001 to 28-8-2001. The learned counsel submitted that in addition to the above reasons, this Court on account of summer vacation, was closed in the intervening period, therefore, this petition was filed on 10-9-2001 against the impugned judgment, dated 28-5-2001, the certified copy of which was applied on 2-6-2001 and it was supplied to the petitioners on 26-6-2001.

4. We having considered the explanation offered by the learned counsel for the petitioners for seeking condonation of delay in filing this petition, find that even if the period during which petitioner No,1 remained under treatment i.e, from 8-8-2001 to 28-8-2001 is excluded and he is also given the concession for the period of illness of his mother, still this petition would be barred by time as there was no explanation for the delay relating to the period from 28-8-2001 to 10-9-2001.

5. This may be observed that office was not closed during the vacation and the petitioners could file the petition, therefore, the excuse that petition was not filed during the vacation on the strength of case Fazal Karim v. Ghulam Jilani (1975 SCM R 4520 wherein it was held that filing of petition during vacation is optional, would not provide a valid ground for condonation of delay in the present case.

6. ' The concurrent findings of fact on the issue relating to the encroachment of land reserved for graveyard, was maintained by the High Court in exercise of its revisional jurisdiction and we have not been able to find out any infirmity of misreading or non-reading of evidence for interference, therefore, we dismiss this petition as barred by time as well on merits. Leave is refused.