1. Calls in question the legality and validity of the judgment dated 17th October, 2015 handed down by the learned District Judge, Bhakkar, whereby the appeal preferred by the respondents calling in question the legality and validity of order dated 12th May, 2015, made by the learned Civil Court at Bhakkar was disposed of with certain observations.
2. Learned counsel for the petitioner contends that through order dated 12th May, 2015, the learned Civil Court granted ad-interim temporary injunction against the petitioner and in favour of the respondents maintaining status-quo regarding possession of the property subject matter of the suit instituted by said respondents but with the exception that the said prohibitory order shall not effect any order of other court or proceedings of any department. Further submitted that the learned trial court in the said order deleted the Province of Punjab, Tehsildar as well as Halqa Patwari from the array of the defendants concluding that they are not necessary party. Submitted that the respondents preferred an appeal which was not maintainable as the ad-interim temporary injunction was issued and the application for grant of temporary injunction was yet to be decided. Submitted that the learned District Judge while disposing the appeal through judgment dated 17th October, 2015, exercised the jurisdiction illegally and with material irregularity whereby direction was issued to the learned trial court to re-settle the matter with reference to arraying the defendants whose names were deleted. Further submitted that status-quo was maintained by the learned District Judge while deciding the appeal resulting in suspension of proceedings before the revenue court in the petition for ejectment filed by the petitioner against the respondents.
3. On the other hand, learned counsel for the respondents at the very outset submitted that the revision petition is barred by time and C.M. No.3-C of 2016 has been filed by the petitioner seeking condonation of delay. Contended that the provisions of Section 5 of The Limitation Act, 1908 (Act IX of 1908) (Hereinafter called Act IX of 1908) cannot be applied to the proceedings under Section 115 of The Code of Civil Procedure, 1908 (Act V of 1908) (Hereinafter called The Code). Help was sought from the dictum laid down in “City District Government, Lahore through District Coordination Officer, Lahore v Mian Muhammad Saeed Amin” (2006 SCMR 676).
Continuing the arguments and while placing reliance upon the rule of law enunciated in “Province of Punjab through District Officer Revenue, Rawalpindi and others v Muhammad Sarwar” (2014 SCMR 1358), it was contended that the revision petition is liable to be dismissed being barred by time.
4. Submitting arguments on merits, it was contended that the order passed by Assistant Commissioner regarding eviction of respondents on 14th June, 2013, was called in question by the respondents by filing appeal before the learned Additional Commissioner (Revenue), Sargodha, who dismissed the appeal through order dated 29th August, 2013, and the respondents filed revision petition against both the orders and the learned Member Board of Revenue through order dated 25th February, 2015, while setting aside the orders referred to, remanded the case to the Additional Commissioner (Revenue) which matter is still sub-judice before the said revenue court. Argued that in the circumstances no exception can be taken to the judgment of learned District Judge, Bhakkar.
5. The petitioner filed C.M. No.3-C of 2016 seeking condonation of delay contending that the judgment passed by the learned District Judge was ex parte and neither any notice was served nor any intimation was communicated to him through any source regarding preference of appeal. Further submitted that newspaper, daily “Jurrat” in which proclamation for appearance of petitioner was issued got no circulation and as such the petitioner who is practicing advocate at Lahore could not get any knowledge regarding the pendency of the appeal. It was further submitted that factum of judgment of learned District Judge came to the notice of the petitioner a week ago.
6. Rule of law expounded in the Report “City District Government, Lahore” (2006 SCMR 676) envisages that provisions of Section 5 of Act IX of 1908 are not applicable to the proceedings under Section 115 of The Code.
Matter came up for adjudication before a learned Full Bench of the Apex Court in the case of “Hafeez Ahmad and others v Civil Judge, Lahore and others” (PLD 2012 SC 400) and it was held that if the revisional court reaches to the conclusion that the order/judgment passed by the subordinate court is the result of exercise of jurisdiction illegally or material irregularity, then while ignoring the question of limitation, revisional court can deal with the matter while exercising Suo-Motu powers.
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