IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Civil Revision No. S-48 of 2024
Applicant: Ejaz Ahmed Khoso,
through Mr. Ajmair Ali Bhutto, Advocate.
Date of Hearing: 18-09-2024
Date of Order: 18-09-2024
O R D E R
KHADIM HUSSAIN SOOMRO, J:- Through this Civil Revision Application under Section 115 of the Civil Procedure Code 1908 ("the Code"), the applicant has impugned the Judgment and Decree dated 19.10.2022, passed by the II-Senior Civil Judge, Jacobabad("the trial Court") in F.C Suit No.23/2022 and appellate judgment and decree dated 22.11.2023, passed by the learned Additional District Judge, Thull, vide Civil Appeal No.35/2022,("the appellate Court"), whereby he dismissed the appeal of applicant/plaintiff and maintained the judgment and decree passed by the learned trial court.
2. Succinctly the facts as averred in the plaint filed by the applicant/plaintiff are that he is exclusive owner of un-surveyed properties admeasuring 61.06 square feet by virtue of registered sale deed No.298, dated 09.10.2018 and 1329 square feet by virtue of a registered sale deed No.300, dated 09.10.2018 which are situated in Thul Town, deh & Tapo Thul Purano, Taluka Thul, and Khata is duly registered in his name in the relevant revenue record of rights of Deh Thul Purano; that, both the above mentioned properties are conjointly with each other and the property admeasuring 61.06 square feet is situated in west of the property admeasuring 1329 square feet; that, soon after the purchase of the properties he demolished its old superstructure and got constructed the shops over the above plots and he got constructed a shop on plot during 61.06 square feet by extending its area from 61.06 to 80 square feet while merging an area of 20 square feet of his property 1329 square feet in 61.06 square feet, therefore, the said shop is now constructed on an area about 8 by 10 totally on 80 square feet, while constructing the shop, applicant/plaintiff got constructed stairs in his shop at west to easily approach towards the upper portion of his properties. The respondent/defendant No.05 also owns his property behind the properties of the applicant/plaintiff towards the north of it; however, the wall of the back side of the shop of the applicant/plaintiff is a joint wall which partitioned wall where roofs of both the properties of applicant/plaintiff and respondent/defendant No.05, is installed on the said wall, but neither the respondent/defendant No.05 has got any share in suit stairs, nor it leads towards his property even then about six months back the respondent/defendant No.05 started claiming the area of stairs as to be of his own. The respondent/defendant No.05 started moving applications to revenue authorities as well to S.S.P., Jacobabad, for demolishing the stairs of the applicant/plaintiff and to give him way towards his property, which is situated behind the suit stairs and on his such approaches, the Deputy Commissioner, Jacobabad while calling the applicant/plaintiff at his office, put pressure upon him to give way from his property to the respondent/defendant No.05 while demolishing the suit stairs, but he refused and on such refusal, the revenue authorities started issuing threats of demolishing suit stairs forcibly and cancelling the Khata of applicant/plaintiff. It is averred by the applicant/plaintiff that suit stairs are part of his properties, which are constructed/installed in his own shop, and neither it is part of the property of respondent/defendant No.05 nor he has got any share to it, therefore his demand and claim over the suit stairs, is illegal and unlawful. Therefore, the applicant/plaintiff has every reason to believe that neither the respondent/defendant No.05 shall stop his illegal demand of suit stairs by disturbing his undisturbed possession, nor the official defendants shall stop their illegal and unlawful methods while putting pressure upon him to give way to respondent/defendant No.05, by demolishing his suit stairs, unless such decree is granted, hence, applicant/plaintiff filed the suit with the following prayers:
(A) To declare that the plaintiff is the legal and lawful owner of the suit stairs, which is constructed and installed in the properties of plaintiff viz. 61.06 & 1329 square feet, which he purchased from its previous owner, namely Khalid Hussain Arain, through Registered Sale Deeds No.298 & 300 dated 09-10-2018, and as such the defendant No.05, has got no concern and right in and over the suit stairs whose claim is illegal and unlawful.
(B) To grant Permanent Injunction in favour of the plaintiff as against the defendants, thereby restraining the defendant No.05, from disturbing the lawful and peaceful possession of the plaintiff in and over the suit stairs by adopting illegal and unlawful methods while illegally claiming the said suit stairs as to be of his own and restraining the official defendants No.02 to 04, thereby restraining them from putting pressure upon the plaintiff illegally and unlawfully for giving way to the defendant No.05, by demolishing the suit stairs, and from cancelling his Khata.
3. Upon pleading of the parties, the trial court framed the following issues:-
1. Whether suit of the plaintiff in present form is not maintainable? O.P.D.
2. Whether there were stairs prior to purchase of the property by the plaintiff which were being jointly used by all six shopkeepers and those stairs are demolished by plaintiff? O.P.P
3. Whether the stairs presently constructed by the plaintiff are his exclusive property and defendant No.05 and other shopkeepers have no right to use those stairs? O.P.P
What should the decree be?
4. After leading evidence and hearing both the learned counsel for the parties, the trial court dismissed F.C Suit No. 23/2021, vide judgment dated 19.10.2022; against that judgment, the plaintiff/applicant preferred a first appeal bearing Civil Appeal No.35/2022 and the same was also dismissed vide judgment dated 22.11.2023; hence the applicant/plaintiff has filed the present civil revision.
5. The learned counsel for the applicant has contended that the judgments passed by the trial court and appellate court are erroneous and have been passed in a hasty manner, that no proper points for determination was framed by the appellate court as required under Order 41 Rule 33 C.P.C, therefore, prayed for setting aside both the judgments passed by the trial court and appellate court.
6. The Code of Civil Procedure (1908) provides that the revision application is to be filed within 90 days against an order or judgment of the subordinate court. It is admitted that the judgment and decree passed by the Appellate Court on 22-11-2023 is subject to challenge through the present revision application, which was filed on 27-04-2024 after the lapse of 60 days. Regarding such a delay, the applicant in ground No. 11 of the memo of instant civil revision mentioned that it was a bonafide delay, and the same was requested to be condoned without giving any reasonable explanation.
7. The law under which the proceedings have been initiated stipulates a specific period of limitation, similar to that established under Section 115 of the Code of Civil Procedure (C.P.C.). This provision is crucial as it delineates the timeframe within which a party must file a revision application challenging an order or judgment of a lower court. The purpose of imposing a limitation period is to promote legal certainty and finality, ensuring that disputes are resolved within a reasonable time and preventing undue delay in the administration of justice. The strict adherence to these timeframes underscores the principle that parties must act diligently in pursuing their legal rights. Failure to initiate proceedings within the prescribed period may result in the dismissal of the application, thereby reinforcing the importance of timely action in legal matters. As such, it is essential for litigants to be acutely aware of these limitations and to take prompt steps to safeguard their interests in accordance with the governing statutory framework.
8. In the case of Hafeez Ahmed and others v. Civil Judge, Lahore and others (PLD 2012 SC 400), a five-member Bench of the Honourable Supreme Court reviewed Section 115 of the Code of Civil Procedure and Section 29 of the Act of 1908 and observed as under:-
"Civil Procedure Code, 1908, though being a general law for all legal and practical purpose, for having prescribed period of limitation for filing a revision petition would be considered a special law for purposes of Limitation Act, 1908. Had legislature intended to treat C.P.C. as a general Law for purposes of Limitation Act, 1908, then same in First Schedule would have been prescribed a period of limitation for filing a revision application. Provision of Ss. 4, 9, to 18 & 22 of Limitation Act, 1908 would, thus, apply even to revision petition filed under S.115, C.P.C.; however, S.5 Limitation Act, 1908, for not finding mentioned in S.29 therefore, shall, not be applicable to revision under S.115, C.P.C."
9. In the case of Allah Dino and others v. Muhammad Shah and others (2001 SCMR 286), the Honourable Supreme Court has held as under:--
"There is no cavil with the arguments that if the Statute governing the proceedings does not prescribe period of limitation, the proceedings instituted there under shall be controlled by the Limitation Act as a whole. But where the law under which proceedings has been launched prescribes itself a period of limitation like under section 115, C.P.C. then benefit of section 5 of Limitation Act cannot be availed unless it has been made applicable as per section 29(2) of the Limitation Act, as held in the case (i) The Canara Bank Ltd. v. The Wardon Insurance Co.Ltd. (A.I.R. 1935 Bombay 35), (ii) Abdul Ghaffar and others v. Mst. Mumtaz (PLD 1982 SC 572), (iii) Ali Muhammad and another v. Fuai Hussain and others (1983 SCMR 1239) (iv) Controller of Customs (Appraisement) v. Messrs Saleem Adaya, Karachi (PLD 1999 Karachi 76) and (v) Haji Muhammad Ashraf v. The State and 3 others (1999 MLD 330)”
10. In view of the above facts and circumstances, the instant civil revision application is dismissed being time-barred.
Judge