Present : MUHAMMAD ILYAS, J
FEDERATION OF PAKISTAN through General Manager PAKISTAN RAILWAYS,
Empress Road, Lahore
Civil Revision No. 2099 of 1986, dismissed on 7-4-1987
(i) Civil Procedure Code, 1908 (V of 1908)—
——– S, 115(1) Proviso-Copies of exhibited documents-Failure to file —Effect of—Civil revision not accompanied by copies of exhibited documents—Held : Petition not to be properly constituted — Such copies, however, subsequently produced before High Court—Held : Revision petition to be properly constituted on date of filing of such copies. [P. 309]D
(ii) Civil Procedure Code, 1908 (V of 1908)—
——S. 115 (1) Proviso- Copies of exhibited documents—Failure to file— Gross negligence in—Effect of—Suit brought by respondent challeng¬ing order of bis removal from service meeting with success—Fruits of decree granted by Civil Judge, however, not granted because of unsuccessful appeal against such decree and filing of civil revision— Petitioner, also remaining guilty of gross negligence and also of con¬tumacy in not filing copies of exhibited documents in support of revision application for almost one year—Held : Respondent being in state of suspence for last 18 years, negligent and contumacious con duct of petitioner to be more actionable—Held further : There being no properly constituted revision before High Court, same to be dismissed on such ground and also on ground of its suffering from defect of laches. [P. 309]E & F
(iii) Civil Procedure Code, 1908 (V of 1908)—
——- S. 115 (1) Proviso — Documents — Copies of — Failure to file for one year— Effect of — Petitioner remaining indifferent to re¬quirement in regard to filing of copies of documents in question till objection in this respect advanced (by other party)—Even no expla¬nation given for more than one year’s delay in filing such copies— —Held : Petitioner not to be subsequently permitted to do needful. [Pp. 308 & 309]A & C
(iv) Civil Procedure Code, 1908 (V of 1908)—
—— S. 115 (1) Proviso — Exhibited documents — Copies of — Failure to file—Effect of — Impugned judgment and decree challenged in revision on merits without raising plea of abatement of suit under cl. (2) of Art. 212 of Constitution— Copies of exhibited docu-ments, however, not filed—Held : Contention that documents not required for deciding question of abatement need not be filed not to be accepted (by High Court). [P. 308]B
Ch. Fazal-i-Hussain, Advocate for Petitioner. Ch. Hamid-ud-Dm, Advocate for Respondent.
Date of hearing : 7-4-1987.
This civil revision has arisen out of a suit brought by the respondent, Muhammad Sadiq, to challenge the order of his removal from service. He was employed with the Pakistan Railways as a Store Keeper when the above order was passed. His suit was decreed by a Civil Judge. Appeal preferred against his judgment and decree was also dismissed by an Additional District Judge, Hence this civil revision by the Federation of Pakistan.
2. In response to pre-admission notice issued to the respondent, his learned counsel entered appearance before this Court raised preliminary objection to the effect that the civil revision suffered from the defect of laches and was, therefore, liable to be dismissed on that ground. It was pointed out by him that the impugned judgment and decree were passed on 4th February, 1986 and that an incomplete revision was filed on 7th May, 1986. It was returned with objections on 17th May, 1986 and was directed to be refiled within three days. The petitioner, however, received back the revision petition on 2nd August, 1986 and re-filed it on 23rd October, 1986. Thus, according to him, the petitioner took about 8 months to file the revision. When the above objection was raised on 15th February, 1987, learned counsel for the petitioner sought adjourn¬ment to explain the delay. His request was acceded to and on 18th February, 1987 he submitted written explanation in this regard.
3. It was explained by the petitioner that the revision was filed on 7th May, 1987 accompanying the following documents :—
“(/) Impugned judgment/decree of Additional District Judge dated 4-2-1986.
(ii) Grounds of appeal dated 21-3-1983 (Hi) Judgment/decree of the Civil Judge dated 27-6-1982.
(fv) Copy of the plaint dated 29-9-70.
(v) Copy of written statement dated 7-7-1971.
(vi) Application for stay dated 7-5-86. (vii) Affidavit dated 7-5-86.
The documents mentioned at (i) and (ii) above were certified copies whereas the rest of the documents were attested by learned counsel for the petitioner. On 19th May, 1986, a memo, containing following objections was issued by the office :—
“(9) Properly attested full affidavit, supporting the application for stay to be filed.
(17) A certificate that no Appeal/Revision in the matter was filed earlier appended be signed.
(21) Documents as required by amendment in Section 115, CPC have not been filed.
(25) Uncertified copies of pages 17-41 be replaced with certified copies.”
(At pages 17 to 41 were uncertified copies of the judgment and decree of the trial Court, uncertified copies of plaint and written statement and uncer¬tified copy of the list of documents relied upon by the defendant). The re¬vision was re-filed “after making compliance” whereupon the following note was recorded by the office on 4th June, 1986 : —
“Please remove the objections.” .
However, on the same day, that is, on 4th June, 1986, the Officer on Special Duty (Judicial) directed that the case be put as an objection case. The case was received by the clerk of learned counsel for petitioner on 2nd August, 1986 after the same was included in the list issued on 30th July, 1987. On 23rd October, 1987, an application (C. M. No 4836/C of 1986) was made “for dispensing with the filing of the certified copies” on the ground that the “file of the civil suit was not available in the record of the lower Court and as such certified copies could not be obtained. Appli¬cation form for ceriified copies, in original, dated the 8th September, 1986, as returned, was also filed.” Thereupon, the Deputy Registrar (Judicial) directed that the case be put up as an objection case as already ordered by the Officer on Special Duty (Judicial), Objection case was fixed before my learned brother A. S. Salam J. on 1st November, 1986 when it was observ¬ed that the “application for dispensing has been filed”. The case was adjourned to the next date for hearing in motion at the request of learned counsel for the petitioner. On 2nd November, 1986, the case was fixed before my learned brother Akhtar Hasan J. who declined to hear it. It was then fixed before me for 4th November, 1986.
4. On 4th November, 1986, when C. M. No. 4856/C of 1986, for dispensing with the requirement of filing of certified copies was placed before me, I allowed the petitioner to file thess copies before 8th December 1986 subject to all just and legal exceptions, and disposed of the C. M. accordingly.
5. Besides raising the preliminary objection referred to above, it was submitted by learned counsel for the respondent on 2Ist February, 1987 that a properly constituted revision had not been filed by that date inas¬ much as certified copies of exhibited documents, which were as many as 17 in number, had not been filed nor any petition had been made for dispens¬ ing with the requirement in this behalf. It was, therefore, maintained by im that the revision petition merited dismissal. On this, learned counsel for ;’ie petitioner requested for adjournment which was allowed and the case was ordered to e relisted for 3rd March, 1987. Before this date, that is, on 1st March, 1987, learned counsel for the petitioner submitted C. M. No. 1081/C of 1987 for permission to file certified copies of the exhibited
documents. The petition was opposed by the respondent by filing a reply. In his reply, it was stated by the respondent that the mere “filing of Revision Petition without necessary documents is no institution in the eye of law and the civil revision will be deemed to be competently filed only when necessary documents duly ^certified |are submitted,” According to him, there was “gross negligence and striking carelessness” on the part of the petitioner inasmuch as the documents filed by him along with the C. M. on 1st March, 1987 applied for as late as on 21st February, 1987. They were supplied to him on 24th February, 1987. No step in this regard was taken by the petitioner from 4th February, 19s6, when the appeal was decided, till 21st February, 1987, when application for supply of copies was made. It was pleaded by the respondent that the “revisional jurisdiction is not exerciseablc in case where the petitioner displayed negli¬gence, contumacy or carelessness in pursuing this remedy”. It was also added by him that the “gross negligence disentitled the petitioner to remove the legal defect of non-filing of these documents in time”. His contention was that the civil revision shall be “deemed to be not properly constituted “till 1st March, 1987” when “these documents were filed and merits to be rejected on this objection”.
6. It was argued by learned counsel for the petitioner that no period of limitation has been prescribed for filing of a civil revision, As for delay, pointed out by learned counsel for the respondent, with regard to the re-filing of the civil revision, efc , it was submitted by him that the petitioner had furnished plausible explanation therefor. In regard to the failure of the petitioner to file certified copies of the exhibited documents, his plea was that they were not needed for deciding the civil revision be¬ cause the main attack of the petitioner against the impugned judgment and decree was that the respondent was a civil servant and, therefore, his suit had abated under clause (2) of Article 212 of the Constitution.
7. On the other hand, it was urged by learned counsel for the respon¬dent that the plea of abatement was not raised by the petitioner before either of the two Courts below. It was maintained by him that the respondent was deprived of the job as far back as in 19b9 and when he succeeded in getting the desired relief from the two Courts below the petitioner thought of raising the above plea. In regard to delay in filing of proper civil revision, his argument was that no cogent explanation had been furnished therefor. As for the petitioner’s prayer for permission to file copies of the exhibited documents, his contention was that it was a belated attempt on the part of the petitioner to save his civil revision from dismissal. According to him, the petitioner was guilty of culpable negligence and contumacy and was, therefore, not entitled to any indulgence. Conceding that no limitation has been prescribed for filing of civil revision it was sub¬mitted by him that the doctrine of laches is very much applicable to a civil revision and if it is filed after 90 days without giving proper explanation for delay it deserves to be dismissed. In this connection, reliance was placed by him on Manager, Jammu and Kashmir, State Property in Pakis¬ tan v. Khuda Yar and another (PLJ 1976 Supreme Court 159). It was also urged by learned counsel for the respondent that due to failure of the petitioner to file copies of the exhibited documents there was n: properly constituted civil revision before this Court even after the lapt of more than a year, and, therefore, it merited dismissal.
8. A careful perusal of the record would reveal that the civil revision was filed on 7th May, 1985, under diary No. 1105, as an ordinary case. On 17th May, 1986, the office raised objections Nos. 9,17,21 and 25, reproduc¬ ed earlier in paragraph 3, while dealing with the explanation of the peti¬ tioner. The objections were required to be removed within three days. Office note io this regard was approved of by the Deputy Registrar (judicial) on 19th May, 1986. The civil revision was re-filed on 29th May, 19o6, vide diary No. 1293. On 4th June, 1986 (which date was wrongly indicated by the office as 6/4), it was pointed out by the office that the objections Nos. 21 and 25 had not been removed. The petitioner was again required to remove them within three days. On the same day, the Officer on Special Duty (Judicial) directed that the case be put up as an objection case. Since it was an ordinary case, it was mentioned io the list of the objection cases issued on 30th July, 1986. The above list is attached to the said explanation of the petitioner. Entries in rsspect of this civil revi¬sion are at serial No. 65 of the list. The case was, however, not noted by learned counsel for the petitioner, as it was decided by the petitioner to get it back for removal of objections. Accordingly, the case was not fixed before the Court. The case was received back by the petitioner on 2nd August, 1986 and re-filed on 23rd October, 1986, under diary No 32 II, without removing the objections. It was, therefore, directed by the Deputy Registrar (Judicial) on ^t>th October 1986 that the case be put up as an objection case. The case was then noted by the clerk of learned counsel for the petitioner on 27th October, 1986 for 1st November, 1986. In the meantime, on 23rd October, 1986, the petitioner had filed C.M. No. 4856/C of 1986 for dispensing with the requirement of filing certain certified copies. On 1st November, 1986, the case came up before my learned brother A. S. Salam J. when it was adjourned by him at the request of learned counsel for the petitioner. Then, it was placed before me on 4th Novem¬ber, 1986 when I disposed of the above C. M. as aforesaid.
9. Now, even if short delays on the part of the petitioner are ignored it is not possible to overlook more than two months delay following 2nd August, 1986, when m,. civil revision was received back by the petitioner, and ending on 23rd October, 1^86, when the civil revision was re-filed. Obviously, the revision was received back by the petitioner on 2nd August, 1986 to remove the objections. Strangely enough, it was re-filed on 23rd October, 1986, without removing the objections. If the petitioner was unable to remove the objections, it sbould have, instead of receiving back the case on 2nd August, 1986, noted the case and let the office fix it before the Court as an objection case. Needless to say that on the fixation of the case before the Court, the petitioner could have moved on application for dispensing with the requirement of filing certified copies as eventually done by him on 23rd October, 1986. Application submitted by the petitioner for supply of certified copies, referred to in C. M No. 4856/C of 1986, has been annexed to the said C. M. It reveals that the application was made on 8th September, 1986 before the Copying Agency of the District Courts and returned to the petitioner on 9th October, i986 withtne remarks that copies be obtained from the Court of Session. No explanation is forth¬coming as to why, after getting back the case on 2nd August, 1986, appli¬cation for supply of copies was not made during the period from 3rd August to 7th September, 1986 and why it was not straight away taken to the record room of the Court of Session from where he got other copies earlier, on 19th February, 1986 This is evident from letter No. 223-J, dated the 12th November, 1986, received from the District and Sessions Judge, Lahore. No reason whatsoever has been given for petitioner’s failure to get, on 19th February, 1986. the copies for which application was subsequently made on 8th September, 1986. In short, there is no cogent explanation for the said delay of more than two months.
10 This brings me to second objection of the respondent which is in regard to proper constitution of the revision petition. According to sub¬section (2) of section 115 of the Code of Civil Procedure it was obligatory for the petitioner to file certain copies including copies of the documents. It is not disputed that there were as many as 17 documents which were produced before, and exhibited by, the learned trial Court. Copies of these documents were, however, not filed by the petitioner for more than a year after the dismissal of the appeal. It was on 1st March, 1^87 that permis¬sion to place them on the record was sought by the petitioner, after an objection in this behalf was raised by learned counsel for the respondent on 21st February, 1987, while contending that the revision was not properly constituted. Application for supply of copies of the said documents was also not made till the above objection was presented. This is clear from endorsement at the back of the copies. That application was submitted on 21st February, 1987 and copies were supplied on 24th February, 1987. No petition for dispensing with the requirement of the filing of copies of the above documents was made by the petitioner although a petition, namely, C. M. No. 4853/C of 1986 for dispensing with the requirement of filing some other copies was made by it on 23rd October, 19*6. C. M. No. 4856/C of 1986 was in regard to certified copies of judgment and decree of the trial Court and copies of pleadings which find mention in application for supply of those copies. As stated above, the said application is annex-led to C. M. No. 4856/C of 1986. It is therefore, clear that the petitioner a remained indifferent to requirement in regard to filing of copies of the (documents in question till an objection in this respect was advanced.
11. Argument of learned counsel for the petitioner that copies of the documents were not filed because they were not required for deciding the ^question of abatement of suit, under clause (2) of Article 212 of the Consti¬tution, is not acceptable because it has not been laid down in sub-section B'(2) of section 115 of the Code of Civil Procedure that copies of such docu-iments only shall be placed on the record as are relevant to questions [agitated in the revision petition. It can also be easily gathered from the ‘revision petition that the petitioner challenged judgment and decree on merits without raising the plea of abatement of suit. What was said by the petitioner in ground (a) of the revision petition makes the following reading :—
“(a) That the respondent was proceeded against under the provisions of Railway Servants (Efficiency & Discipline) Rules. As such, the civil suit was not at all maintainable. It is respectfully sub¬mitted that the learned lower Courts have acted in excess of their jurisdiction in granting the decree. The impugned judgment is thus liable to be set aside.”
Assuming, without conceding, that in the said ground is incorporated the plea of abatement, this is not the only ground pressed by the petitioner. As already said, the petitioner assailed judgment and decree of the learned lower appellate Court on merits as well. It is, therefore, not open to the petitioner to offer the above explanation for non-filing of copies of the exhibited documents. . It seems that the petitioner did not care to comply with the requirement in this regard despite the repeated directions of the office to remove objection No. 21, which reads as under : —
“(21) Documents as required by section 115, CPC have not been tiled.”
It was only when it was pointed out by learned counsel for the respondent that the civil revision was not properly constituted, for want of copies of the said documents, that he thought of getting the same and seeking per¬mission to place them on the record. Since no good explanation has been? given for more than one year’s delay in filing the said copies I am not inclined to permit the petitioner to now do the needful. C. M. No. 1081/Cl of 1987, by which the said permission was sought, is, accordingly, dis¬missed.
12. I agree with learned counsel for the respondent that the civil revision is not properly constituted because it is not accompanied by copies! of the exhibited documents. Even if.the permission to file the said copies had been granted, the civil revision would have been properly constituted on 1st March, 1987 when the said copies were produced before me. By! then, a period of more than one year bad elapsed after the passing of the impugned judgment and decree. As observed in the case of Manager, Jammu and Kashmir, State Property in Pakistan, cited by learned counsel for the respondent, no period of limitation has been prescribed for filing of civil revision and it can be entertained even after normal unprescnbed period of 90 days, if the Court is satisfied with regard to delay beyond 90 days. Petitioner has, however, failed to satisfy me with regard to the delay of nearly one year inasmuch as he has not given a plausible explana¬tion therefor.
13. It may also be stated here that this revision has been filed by the Federation of Pakistan which was not a party before the two Courts below. Also, defendants in the suit, who had preferred the appeal, have not been impleaded as parties in this civil revision. This too shows that proper care was not taken by the petitioner in filing this revision petition.
14. What emerges from the above discussion is that the petitioner was not only guilty of gross negligence but also of contumacy. It was as far back as in 1969 that the petitioner (sic) lost his job doe to his removal from service. The suit brought by him to challenge the order of his removal from service met with success, but he has not so far bssa able to avail of the fruits of the decree granted by the learned High Court because of the unsuccessful appeal against the said decree and the filing of the present civil revision. Thus, he is in a state of suspense for the last 18 years Viewed in this back, ground, negligent and contumacious conduct of the petitioner seems to be all the more actionable.
15. In result, I bold that there is no properly constituted revision! before me. Even if there is one, it suffers from the defect of laches and deserves to be dismissed on that ground. This civil revision, accordingly I fails. It is dismissed in limine without expressing any opinion of the merits] of the case.
(TQM) Petition dismissed.