2022 Y L R 2154
[Balochistan]
Before Abdullah Baloch, J
ATTA MUHAMMAD and another ---Petitioners
Versus
SARFARAZ
and 6 others ---Respondents
Civil Revision No. 218 of 2018, decided on 23rd September, 2021.
Limitation Act (IX of 1908)---
----S. 5---Delay, condonation of ---Appeal filed after withdrawal of execution petition--- Law
favours vigilant not indolent ---Suit for declaration and permanent injunction with averments
that petitioners/plaintiffs were lawful owners of Shamilat land; that said land was still un -
partitioned amongst co- sharers (except one of plots); that petitioners were land owners since
their forefathers; that property under consideration of Highway Authorities for
construction/passing road through, belonged to seven tribes; that petitioners were entitled to get amount of compensation according to their respective shares ---Suit was partly allowed by
Trial Court ---Petitioner's appeal against judgement/decree of Trial Court as well as
application accompanied thereto for condonation of delay were dismissed by appellate Court -
--Validity ---Petitioners first filed execution application before executing Curt which was
withdrawn due to fact that decree so passed could not serve the purpose as full relief sought by petitioners was not decreed in their favour ---After withdrawal of execution application
they preferred appeal along with application for condonation of delay--- Petitioner had failed
to explain the delay of each and every day with sufficient cause ---Revision petition was
dismissed accordingly.
Naik Muhammad v. Muhammad Shabbir and others 2019 CLC 64 rel.
Anwar Khan for Petitioners.
Ajmal Lawon for Respondents.
Malik Azeem, Assistant A.G. for the State.
Date of hearing: 14th September, 2021.
JUDGMENT
ABDULLAH BALOCH, J. ---This petition is directed against the judgments and
decrees dated 26th July 2017 and 30th April 2018 ("the impugned judgments and decrees")
passed by the learned Civil Judge, Muslim Bagh ("the trial Court") and the learned Additional District Judge, Muslim Bagh ("the appellate Court") whereby suit of petitioners/plaintiffs was partly allowed and appeal of petitioners was dismissed.
2. Brief facts arising out from the instant petition are that petitioners/ plaintiffs filed a
Civil Suit for Declaration and Permanent Injunction against the respondents in the learned trial Court with the averments that the petitioners/ plaintiffs are lawful owners of Shamilat land bearing Khasra Nos.531, 539, 547, 544, 543, 532, 505 and 542 along with other co-sharers; that the land in question is still un -partitioned amongst the co- sharers, while the land
under Khasra No.531 was though partitioned, but the same is still disputed; that the petitioners/ plaintiffs are land owners since their forefathers and having three (72 hours) Shabana Roz water in Revenue record of 1901- 1902. It is further averred in the plaint that
the National Highway Authorities ("NHA") passing the road through above mentioned Khasra numbers; the property under consideration belongs to seven tribes i.e. Rahatazai, Merozai, Mehtarzai, Adniazai, Mehrabzai and Samzai; that the petitioners/plaintiffs are the actual owners and entitled to get the amount of compensation according to their respective
shares, whereas the revenue authorities are going to distribute the amount of award to
unconcerned persons; that the petitioners/plaintiffs approached the respondent No.7 and requested to refrain from paying the compensation amount to any persons before proper partition, but all in vain.
3. The suit was contested by the respondents/defendant by means of filing written
statement.
4. After framing of issues, recording evidence and hearing the parties, the suit of
plaintiffs/petitioners was partly allowed by the learned trial Court, vide impugned judgment and decree dated 26th July 2017.
5. Being aggrieved the petitioners/ appellants assailed the judgment and decree passed
by the learned trial Court before the learned appellate Court by filing appeal along with an application under Section 5 of the Limitation Act 1908. The appeal as well as application of appellants/petitioners was dismissed, vide impugned judgment and decree as mentioned hereinabove in para No. 1. Whereafter the petitioner filed the instant Civil Revision Petition.
6. Heard the learned counsel for the parties and perused the record minutely, which
reveals that the petitioners/ plaintiffs filed a suit for declaration and permanent injunction in the trial Court averments that the petitioners/plaintiffs are lawful owners of Shamilat land bearing Khasra Nos.531, 539, 547, 544, 543, 532, 505 and 542 along with other co- sharers;
that the land in question is still un- partitioned amongst the co- sharers, while the land under
Khasra No.531 was though partitioned, but the same is s till disputed; that the National
Highway Authority acquired land for the purpose of construction of road accordingly after observing all coadal formalities by the respondent No.7 the award was passed. Thus, in view of the above, the petitioners are entitled to receive their due shares from the compensation amount. The suit was contested by the respondents by filing written statements. After
framing issues and recording evidence the suit of petitioners/plaintiffs was decreed, vide
judgment and decree dated 26th July 2017 as under:
"Relief?
As the issues Nos. 1, 2 and 3 have been resolved in favour of the plaintiff to the extent of share in the water and shamliat, so the above issues are also resoled [sic] in favour of the plaintiffs. It is therefore declared that the plaintiffs are entitled for compensation according to their shares out of occupied properties for road after settlement of respective shares of co -shares and plaintiff according to the revenue
record of 1955- 56 and 1967- 68. Decree sheet be drawn."
7. Being satisfied the petitioners filed execution application before the executing Court
and during the course of execution proceedings the petitioners withdrawn their execution application on 22nd November 2017 due to the fact that decree so passed by the learned trial Court could not serve the purpose as full relief sought by the petitioners/plaintiffs was not decreed in their favour, thus after withdrawal of execution application they preferred an appeal along with application for condonation of delay before the learned appellate Court on 21st December 2017. After hearing the parties on the point of limitation the learned appellate
Court dismissed the application along with main appeal, vide impugned judgment and decree
dated 30th April 2018, while deciding the case the learned appellate Court observed as under:
5. On the other hand the counsel for the respondents had argued that the appellant had claiming his share according to the settlement of 1901 while after the carrying the settlement of 1955/56 the operation on settlement of 1901 has suspended in the light
of new settlement. Now the appellants want to decree his suit on the bases of 1901 settlement which is not in filed. In these circumstances the trial court had decreed his suit as per his share having in the settlement 1955/56. The appellant was fully aware as he filed his suit and after decree he had not approach the court in time, the appeal was surely filed beyond provided period and the appellant had failed to establish grounds on basis of which such delay application has filed.
6. It is well settled law that each and every day should explained. Plea of appellant was that filing of appeal beyond prescribed period was a decree which was not covering the whole claim of appellant such plea was no ground for condonation. The application submitted under section 5 of the Limitation Act 1908 was with the contention as mentioned above despite this assertion he failed to specify the points which was not covered in the judgment and decree on the bases of such the delay could be condoned. I am of the considered view that application in hand is not maintainable which is dismissed accordingly resultantly the appeal is also dismissed being time barred. Order copy and record of Civil Judge Muslim Bagh be sent back. Appeal after his completion and compilation be consigned to record."
8. The bare perusal of application for condonation of delay reflects that
the petitioners have failed to explain the delay of each and every day with sufficient
cause. Thus, the learned appellate Court has rightly dismissed the application along with
appeal in accordance with law. It is well settled principle that law favours vigilant not
indolents. Reliance in this regard is placed in the case of "Naik Muhammad v. Muhammad Shabbir and others" 2019 CLC 164. The relevant portion reads as under:
"While enacting the Limitation Act, 1908, the legislature in its wisdom has fixed the period of limitation for a particular action. The structure of the law is founded upon the legal maxims, that delay defeats equity, time and tide wait for none and law helps the vigilant not the indolent. The object of law of limitation is to help the vigilant and not the indolent. Helping hand could not be extended to a litigant on having become forgetful of his rights. Besides, invoking remedy by some aggrieved person beyond the period of limitation prescribed for redressal of grievance, creates a valuable right in favour of the opposite party, therefore, in such case, delay of each day has to be explained by the defaulting party to the satisfaction of the court, which could not be condoned lightly or as of routine, as such arbitrary exercise of discretion would cause serious prejudice to the opposite party. In the case in hand, petitioners proved themselves indolent towards their rights and kept silent for four months in filing another application."
The learned counsel for the petitioners has failed to point out any material illegality or
irregularity in the impugned judgments and decrees passed by the Courts below to warrant interference by this Court. Even otherwise, the learned counsel for the petitioners has also failed to point out any sufficient cause for filing the appeal with unexplained delay.
Thus, in view of the above, the petition being devoid of merits is dismissed with no
order as to cost.
ZH/178/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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