PLJ 2011 SC 360
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Nasir-ul-Mulk, JJ.
PROVINCE OF PUNJAB through Collector, T.T. Singh and others--Appellants
versus
MUHAMMAD FAROOQ & others--Respondents
C.A. No. 2204 of 2006, decided on 8.2.2010.
(On appeal from judgment of Lahore High Court, Lahore dated 29.11.2002, passed in Civil Revision No. 1723 of 2002).
Limitation Act, 1908 (IX of 1908)--
----S. 12(2)--Limitation for filing a revision is to start running from the date of the judgment and order--Validity--No period of limitation was ever provided for the Revisional Court to revise any order of the sub-ordinate Court--When no period of limitation was provided for revision, the reference, thereof, obviously got omitted in S. 12(2) of Limitation Act. [P. 362] A
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Limitation Act, (IX of 1908), S. 12(2)--Limitation for filing a revision--Limitation was provided in the year 1992 through CPC (Amendment) Act, (III of 1992)--No notice was taken to amend the corresponding Section 12(2) of Limitation Act, and to include therein the revision--Held: At the time of enactment of Limitation Act, the word `revision' was rightly omitted because no period of limitation was provided--Such period spent for obtaining the copies cannot be computed, the revision petition before High Court was within time--Appeal was accepted. [P. 363] B
Limitation Act, 1908 (IX of 1908)--
----S. 5--Civil Procedure Code, (V of 1908)--S. 115--Question of condonation of delay--Condonation of delay u/S. 5 of Limitation Act, cannot be considered when juxtaposed to Section 115, CPC. [P. 363] C
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Ground of limitation which, with reference to S. 115, CPC is not absolute either--Jurisdiction of sub-ordinate Court--Determination--Validity--High Court can at any time call for the record of any from a sub-ordinate Court in order to determine as to whether the subordinate Court has exercised a jurisdiction not vested in it or has failed to exercise jurisdiction so vested or has acted illegally or with material irregularity--Held: It is a matter of commonsense and simply logic that if such power is vested in a High Court, it should not be restricted by any period of limitation. [P. 363] D
Civil Procedure Code, 1908 (V of 1908)--
----S. 115(i)--Second proviso--Amendment--Period of 90 days was fixed for filing revision petition--Validity--Limitation of 90 days is relevant only when the revision petition is filed by some person or party to the proceedings--Such impediment is non-existent when Court itself exercises the power of revision u/S. 115(1), CPC. [P. 363] E
Job of Court--
----To do ultimate justice--It can look into matter itself despite the fact--Application filed by a party might be barred by time--Validity--If merits of the case demand that the challenged order be set aside--High Court would not avoid hearing u/S. 115(1), CPC for which no limitation was provided, merely because application was filed by some body who was bound by limitation. [P. 363] F
2003 SCMR 181, ref.
Law of Limitation--
----Substantive law of land and hence should not in every case be considered as a mere technicality--Under Section 115, CPC having been split into two parts the stringent implication of law of limitation can easily be avoided by Court taking suo moto action under Section 115(1), CPC was cases where merit so demanded. [P. 364] G
Limitation Act, 1908 (IX of 1908)--
----S. 12(2)--Civil Procedure Code, (V of 1908)--S. 115--Limitation for revision--Section 12(2) of Limitation Act, was not applicable to revision when both Limitation Act and Civil Procedure Code were enacted--Validity--Time as mentioned in Section 12(2) of Limitation Act, should be excluded while computing the period in-question--Despite such limitation, restricted for the party or person, High Court could have assumed jurisdiction provided the merits of the case so demanded--Appeal was accepted. [P. 364] H
Mr. Saeed Yousaf, Addl. A.G. (Punjab) for Appellants.
Ex-parte for Respondents.
Date of hearing: 24.11.2009.
Judgment
Sardar Muhammad Raza Khan, J.--Province of Punjab, with leave of the Court, has filed this appeal against the judgment dated 29.11.2002, passed by a learned Judge in chambers of Lahore High Court, whereby, a Civil Revision filed by the Government of Punjab was dismissed on the ground:
Firstly, that the Revision before the High Court was barred by 35 days;
secondly, that as the period of limitation of 90 days was specifically mentioned in the Code itself, Section-5 of the Limitation Act, concerning the condonation of delay, would not be applicable as provided by Section 29(2) of the Limitation Act, and;
thirdly, that the time between filing of application and delivery of the copy thereof cannot be excluded within the contemplation of Section 12(2), Limitation Act in case of Revisions, because the word `Revision' is not mentioned in the said section.
Thus, according to the learned High Court, limitation for filing a Revision is to start running from the date of the judgment and order involved.
2. After hearing the arguments of the learned Additional Advocate General, it would be convenient to first discuss the exclusion of time as provided by Section 12(2) of the Limitation Act. It is a known fact that no period of limitation was ever provided for the Revisional Court to revise any order of the subordinate Court. It was so because Revision is considered to be a matter between the superior Court and the lower Court. When no period of limitation was provided for Revision, the reference thereof, obviously, got omitted in Section 12(2) of the Limitation Act. It may be recalled that such limitation was provided in the year 1992 through Civil Procedure (Amendment) Act (III of 1992). As usual with our amendments, no notice was taken to amend the corresponding Section 12(2) of the Limitation Act and to include therein the Revision as well. We are therefore, of the view that at the time of enactment of Limitation Act, the word `Revision' was rightly omitted because no period of limitation was provided there for. It does not mean that such period spent for obtaining the copies cannot be computed for filing a Revision. In the present case, if such time is computed, the revision petition before the High Court was within time.
3. Coming to the next question that condonation of delay under Section 5 of the Limitation Act cannot be considered when juxtaposed to Section 115, CPC. We agree that this notion of law, already determined by this Court in Allah Dino's case (2001 SCMR 286), is correct. Anyhow, the effect thereof would be discussed here-in-after. Muhammad Mian's case (1995 SCMR 69) and Government of NWFP's case (1994 SCMR 833) are not applicable to the present case because the Revisions in those cases were filed prior to the amendment through Act III of 1992 (supra).
4. It is not a healthy approach to brush aside the cases on the ground of limitation which, with reference to Section 115, CPC, is not absolute either. A perusal of the section would indicate that a High Court may at any time call for the record of any case from a subordinate Court in order to determine as to whether the subordinate Court has exercised a jurisdiction not vested in it or has failed to exercise jurisdiction so vested or has acted illegally or with material irregularity. It is a matter of commonsense and simple logic that if such power is vested in a High Court, it should not be restricted by any period of limitation. So it does when Section 115 CPC was originally enacted. The controversy seems to have cropped up because of the amendment in the year 1992 when, through second proviso, a period of 90 days was fixed for filing a revision petition. A plain perusal of first and second proviso would indicate that a limitation of 90 days is relevant only when some Revision petition is filed by some person or party to the proceedings. Such impediment is non-existent when Court itself exercises the power of Revision under sub-section (1) of section-115, CPC.
5. As the job of a Court is to do ultimate justice, it can look into the matter itself despite the fact that some application filed by a party might be barred by time. Any such application can be considered by the Court as a mere information. What we intend to bring home is that if merits of the case demand that the challenged order be set aside, a High Court should not avoid hearing under section-115(1), CPC for which no limitation is provided, merely because the application is filed by some body who is bound by limitation. This Court in Riaz Hussain's case (2003 SCMR 181) has observed in principle that "mere technicalities unless offering any surmountable hurdle should not be allowed to defeat the ends of justice and the logic of words should yield to the logic of realities".
6. Law of limitation, we believe, is a substantive law of the land and hence should not in every case be considered as a mere technicality, yet, we firmly believe that under section-115 CPC, having been split into two parts, the stringent implication of law of limitation can easily be avoided by the Court taking suo moto action under sub-section (1) of Section 115, CPC in cases where merit so demands.
7. Consequently, we make a two-fold observation. Firstly, that Section 12(2) of the Limitation Act was not applicable to Revisions when both the Limitation Act and Civil Procedure Code were enacted. So no limitation for Revision was provided at that time. Now that we have amended Section 115, CPC by providing a limitation, therefore, the time, as mentioned in Section 12(2) of the Limitation Act, should be excluded while computing the period in question. Secondly, that despite such limitation, restricted for the party or person, the High Court could have assumed jurisdiction provided the merits of the case so demanded. Resultantly, the appeal is accepted, the impugned judgment dated 29.11.2002 is set aside and the case is remanded back to the learned High Court for deciding Civil Revision No. 1723/2002 on merits.
(R.A.) Case remanded.
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Nasir-ul-Mulk, JJ.
PROVINCE OF PUNJAB through Collector, T.T. Singh and others--Appellants
versus
MUHAMMAD FAROOQ & others--Respondents
C.A. No. 2204 of 2006, decided on 8.2.2010.
(On appeal from judgment of Lahore High Court, Lahore dated 29.11.2002, passed in Civil Revision No. 1723 of 2002).
Limitation Act, 1908 (IX of 1908)--
----S. 12(2)--Limitation for filing a revision is to start running from the date of the judgment and order--Validity--No period of limitation was ever provided for the Revisional Court to revise any order of the sub-ordinate Court--When no period of limitation was provided for revision, the reference, thereof, obviously got omitted in S. 12(2) of Limitation Act. [P. 362] A
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Limitation Act, (IX of 1908), S. 12(2)--Limitation for filing a revision--Limitation was provided in the year 1992 through CPC (Amendment) Act, (III of 1992)--No notice was taken to amend the corresponding Section 12(2) of Limitation Act, and to include therein the revision--Held: At the time of enactment of Limitation Act, the word `revision' was rightly omitted because no period of limitation was provided--Such period spent for obtaining the copies cannot be computed, the revision petition before High Court was within time--Appeal was accepted. [P. 363] B
Limitation Act, 1908 (IX of 1908)--
----S. 5--Civil Procedure Code, (V of 1908)--S. 115--Question of condonation of delay--Condonation of delay u/S. 5 of Limitation Act, cannot be considered when juxtaposed to Section 115, CPC. [P. 363] C
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Ground of limitation which, with reference to S. 115, CPC is not absolute either--Jurisdiction of sub-ordinate Court--Determination--Validity--High Court can at any time call for the record of any from a sub-ordinate Court in order to determine as to whether the subordinate Court has exercised a jurisdiction not vested in it or has failed to exercise jurisdiction so vested or has acted illegally or with material irregularity--Held: It is a matter of commonsense and simply logic that if such power is vested in a High Court, it should not be restricted by any period of limitation. [P. 363] D
Civil Procedure Code, 1908 (V of 1908)--
----S. 115(i)--Second proviso--Amendment--Period of 90 days was fixed for filing revision petition--Validity--Limitation of 90 days is relevant only when the revision petition is filed by some person or party to the proceedings--Such impediment is non-existent when Court itself exercises the power of revision u/S. 115(1), CPC. [P. 363] E
Job of Court--
----To do ultimate justice--It can look into matter itself despite the fact--Application filed by a party might be barred by time--Validity--If merits of the case demand that the challenged order be set aside--High Court would not avoid hearing u/S. 115(1), CPC for which no limitation was provided, merely because application was filed by some body who was bound by limitation. [P. 363] F
2003 SCMR 181, ref.
Law of Limitation--
----Substantive law of land and hence should not in every case be considered as a mere technicality--Under Section 115, CPC having been split into two parts the stringent implication of law of limitation can easily be avoided by Court taking suo moto action under Section 115(1), CPC was cases where merit so demanded. [P. 364] G
Limitation Act, 1908 (IX of 1908)--
----S. 12(2)--Civil Procedure Code, (V of 1908)--S. 115--Limitation for revision--Section 12(2) of Limitation Act, was not applicable to revision when both Limitation Act and Civil Procedure Code were enacted--Validity--Time as mentioned in Section 12(2) of Limitation Act, should be excluded while computing the period in-question--Despite such limitation, restricted for the party or person, High Court could have assumed jurisdiction provided the merits of the case so demanded--Appeal was accepted. [P. 364] H
Mr. Saeed Yousaf, Addl. A.G. (Punjab) for Appellants.
Ex-parte for Respondents.
Date of hearing: 24.11.2009.
Judgment
Sardar Muhammad Raza Khan, J.--Province of Punjab, with leave of the Court, has filed this appeal against the judgment dated 29.11.2002, passed by a learned Judge in chambers of Lahore High Court, whereby, a Civil Revision filed by the Government of Punjab was dismissed on the ground:
Firstly, that the Revision before the High Court was barred by 35 days;
secondly, that as the period of limitation of 90 days was specifically mentioned in the Code itself, Section-5 of the Limitation Act, concerning the condonation of delay, would not be applicable as provided by Section 29(2) of the Limitation Act, and;
thirdly, that the time between filing of application and delivery of the copy thereof cannot be excluded within the contemplation of Section 12(2), Limitation Act in case of Revisions, because the word `Revision' is not mentioned in the said section.
Thus, according to the learned High Court, limitation for filing a Revision is to start running from the date of the judgment and order involved.
2. After hearing the arguments of the learned Additional Advocate General, it would be convenient to first discuss the exclusion of time as provided by Section 12(2) of the Limitation Act. It is a known fact that no period of limitation was ever provided for the Revisional Court to revise any order of the subordinate Court. It was so because Revision is considered to be a matter between the superior Court and the lower Court. When no period of limitation was provided for Revision, the reference thereof, obviously, got omitted in Section 12(2) of the Limitation Act. It may be recalled that such limitation was provided in the year 1992 through Civil Procedure (Amendment) Act (III of 1992). As usual with our amendments, no notice was taken to amend the corresponding Section 12(2) of the Limitation Act and to include therein the Revision as well. We are therefore, of the view that at the time of enactment of Limitation Act, the word `Revision' was rightly omitted because no period of limitation was provided there for. It does not mean that such period spent for obtaining the copies cannot be computed for filing a Revision. In the present case, if such time is computed, the revision petition before the High Court was within time.
3. Coming to the next question that condonation of delay under Section 5 of the Limitation Act cannot be considered when juxtaposed to Section 115, CPC. We agree that this notion of law, already determined by this Court in Allah Dino's case (2001 SCMR 286), is correct. Anyhow, the effect thereof would be discussed here-in-after. Muhammad Mian's case (1995 SCMR 69) and Government of NWFP's case (1994 SCMR 833) are not applicable to the present case because the Revisions in those cases were filed prior to the amendment through Act III of 1992 (supra).
4. It is not a healthy approach to brush aside the cases on the ground of limitation which, with reference to Section 115, CPC, is not absolute either. A perusal of the section would indicate that a High Court may at any time call for the record of any case from a subordinate Court in order to determine as to whether the subordinate Court has exercised a jurisdiction not vested in it or has failed to exercise jurisdiction so vested or has acted illegally or with material irregularity. It is a matter of commonsense and simple logic that if such power is vested in a High Court, it should not be restricted by any period of limitation. So it does when Section 115 CPC was originally enacted. The controversy seems to have cropped up because of the amendment in the year 1992 when, through second proviso, a period of 90 days was fixed for filing a revision petition. A plain perusal of first and second proviso would indicate that a limitation of 90 days is relevant only when some Revision petition is filed by some person or party to the proceedings. Such impediment is non-existent when Court itself exercises the power of Revision under sub-section (1) of section-115, CPC.
5. As the job of a Court is to do ultimate justice, it can look into the matter itself despite the fact that some application filed by a party might be barred by time. Any such application can be considered by the Court as a mere information. What we intend to bring home is that if merits of the case demand that the challenged order be set aside, a High Court should not avoid hearing under section-115(1), CPC for which no limitation is provided, merely because the application is filed by some body who is bound by limitation. This Court in Riaz Hussain's case (2003 SCMR 181) has observed in principle that "mere technicalities unless offering any surmountable hurdle should not be allowed to defeat the ends of justice and the logic of words should yield to the logic of realities".
6. Law of limitation, we believe, is a substantive law of the land and hence should not in every case be considered as a mere technicality, yet, we firmly believe that under section-115 CPC, having been split into two parts, the stringent implication of law of limitation can easily be avoided by the Court taking suo moto action under sub-section (1) of Section 115, CPC in cases where merit so demands.
7. Consequently, we make a two-fold observation. Firstly, that Section 12(2) of the Limitation Act was not applicable to Revisions when both the Limitation Act and Civil Procedure Code were enacted. So no limitation for Revision was provided at that time. Now that we have amended Section 115, CPC by providing a limitation, therefore, the time, as mentioned in Section 12(2) of the Limitation Act, should be excluded while computing the period in question. Secondly, that despite such limitation, restricted for the party or person, the High Court could have assumed jurisdiction provided the merits of the case so demanded. Resultantly, the appeal is accepted, the impugned judgment dated 29.11.2002 is set aside and the case is remanded back to the learned High Court for deciding Civil Revision No. 1723/2002 on merits.
(R.A.) Case remanded.
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