2015 C L C 307


2015 C L C 307

[Lahore]

Before Rauf Ahmad Sheikh, J

MUHAMMAD MAHMOOD SAEED and others----Petitioners

Versus

MEHDI HASSAN SHAH and others----Respondents

Civil Miscellaneous Nos.276-C, 278-C and 279-C of 2011 in Civil Revision No.196 of 1992, decided on 26th November, 2012.

Civil Procedure Code (V of 1908)---

----Ss. 12(2), 115, O. VIII, R. 13 & O.XXII R. 4 ----Limitation Act (IX of 1908) Art.181---Civil Revision---Death of party to civil revision---Power of revisional court to decide civil revision if party or parties do not appear on date fixed for hearing---Scope---Applicants were legal representatives of a party to a civil revision and contended that said party was now deceased and his legal representatives were not in knowledge of the judgment deciding said revision petition---Applicants moved application under S.12(2), C.P.C. to set aside said judgment on grounds of fraud---Contention of the applicants was that delay in filing of application under S.12(2), C.P.C. ought to be condoned---Validity---Counsel for the deceased did not submit any affidavit to show that he had no knowledge about fixation for hearing of the revision application---Court had power to decide a revision application under S.115 of C.P.C. even if the parties did not appear on the date when it was fixed---Under O.XXII, R.4, C.P.C. proceedings did not abate on demise of one of the defendants or the sole defendants and it was duty of one of the legal representatives under O.VIII, R.13, C.P.C. to give intimation to the court about demise of a party and to provide a list of legal representatives---No such effort was made by the applicants and they could not be allowed to say that they were condemned unheard---Application under S.12(2), C.P.C. fell under Art.181 of the Limitation Act, 1908 under which a period of three years limitation was provided and the present application was filed after more than five years---Applicants had been appearing in partition proceedings for suit property and were therefore in knowledge of the impugned judgment---No ground therefore existed to condone delay---Application under S.12(2), C.P.C. was dismissed, in circumstances.

            Ch. Abdul Ghani for Petitioners.

            Sagheer Ahmad Bhatti for Respondent.

ORDER

C.Ms. Nos.276-C 278-C and 279-C of 2011

            RAUF AHMAD SHEIKH, J.--- The petitioners have assailed the vires of consolidated judgment dated 2-5-2005 passed by this Court in Civil Revisions Nos.196-D-1992 and 627-D-1992. It is contended that Muhammad Saeed, respondent had died on 19-9-1999 but his legal representatives were not brought on the file and as such the petitioners had no information about the fixation of the petition for the above mentioned date and that the predecessor in interest of the petitioners had never appointed Mr. Javed Akhtar Wains, Advocate as his counsel so his appearance on behalf of the deceased was unauthorized. In C.M. No.278-C of 2011 an interim injunction was prayed for till decision of the main C.M. In C.M. No.279-C of 2011, it was prayed that delay in filing the appeal be condoned.

2.         The learned counsel for the petitioners has contended that Saeed Ahmad, respondent had died prior to decision of the civil revision vide judgment dated 2-5-2005 but unfortunately the report about his demise could not be made in time so it was got entered on 1-1-2005. It is urged that the petitioners had no knowledge about the judgment dated 2-5-2005 so no delay was caused by them in filing the petition under section 12(2), C.P.C. and as such the delay, if any, should be condoned in the larger interest of justice. It is also urged that Malik Javed Akhtar Wains, Advocate was never appointed as attorney by their late predecessor and as such they were condemned unheard.

3.         The learned counsel for the respondent has vehemently opposed all these C.Ms. It is contended that fake entry in the death Register was maneuvered after six months of the passing of the impugned judgment and six years of demise with the sole object to concoct a ground for submission of the application; that the petitioners attained the knowledge of the judgment of this Court on 1-11-2005 on submission of an application for partition of the property but they remained indolent and did not move the application in time. On merits, it is urged that Sh. Ahsan Hafeez, Advocate learned counsel for the deceased Saeed Ahmad did not submit his affidavit to show that he did not receive the cause list or had no knowledge about the fixation of the civil revision.

4.         The perusal of the record reveals that C.R. No.196-D of 1992 and C.R. No.627-D of 1992 were decided through consolidated judgment. In fact Malik Javed Akhtar Wains, Advocate was counsel for the respondent in C.R No.627-D 1992. Sh. Ahsan Hafeez, Advocate was counsel for late Saeed Ahmad. He has not submitted any affidavit to show that the cause list was not delivered to him and that he had no knowledge about the fixation of the civil revision. Even if the learned counsel for the parties do not appear, on the date fixed, the Court can decide the civil revision in exercise of its revisional jurisdiction under section 115, C.P.C. Moreover, under Order XXII, Rule 4, C.P.C the proceedings do not abate on demise of one of the defendants or sole defendant. In fact under the amended law it is the duty of the one of the legal representatives nominated under Order VIII, Rule 13, C.P.C. to give an intimation to the Court about the demise and list of legal representatives. No such effort was made by the petitioners so they cannot be allowed to say that they or their predecessor in interest were contemned unheard.

5.         No period of limitation is prescribed in schedule of Limitation Act, 1908 for filing of the application under section 12(2), C.P.C. so the same falls under Article 181, which provides a period of three years from the date of accruing of right to apply. The instant petition was move after five years nine months and six days of the judgment dated 2-5-2011. The petitioners acquired the knowledge of the same on submission of an application before the DOR on 7-5-2005, wherein the respondent No.3(i) had clearly mentioned the factum of passing of judgment dated 2-5-2005 of this Court. The petitioners had been appearing in the partition proceedings before the AC-I so they had attained the knowledge during the partition proceedings. The application has been moved after more than five years of attaining the knowledge. There is nothing on the record to show that the petitioners were not in a position to move the same in time for the reasons beyond their control. No ground to condone the delay, therefore is available. The petition is hopelessly barred by time. For the reasons supra, the C.Ms. No.276-C of 2011 and 279-C of 2011 are without merits and the same are hereby dismissed. C.M No.278-C of 2011 has become infructuous and is disposed of as such.

KMZ/M-21/L                                                                          Applications dismissed.


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