AQUIL LOTIA vs DAILY AUSAF, KARACHI through Chief Editor and another

ORDER

1. ' ZAFFAR AHMED KHAN SHERWANI, J.--These are two applications. The first one is an application under section 5 of the Limitation Act to condone the delay of 332 days in filing the application C.M.A.No,9053 of 2005 under section 151, C.P.C. This application is supported with the affidavit of Mr. Mufti Muhammad Bashir, the learned advocate appearing for the plaintiff whereas the second application under section 151, C.P.C. Which is also supported with his affidavit is to recall the order of this Court dated 21-3-2005 whereby "the relief of the plaintiff against the defendant No,2 was struck off."

2. ' The brief facts leading to these applications are that this suit was being proceeded by 'the Additional Registrar (0.S.-I) at the stage of service on both the defendants. However, the defendant No,1 was later on served whereas the defendant No,2 remained unserved as site was not found on the said address. The plaintiff was directed by the Additional Registrar (O.S.-I) vide order dated 7- 8-2003 to file her fresh address. In response to that the learned counsel for the plaintiff filed a statement dated 11-12-2003 that no other address was in the knowledge of the plaintiff but the Additional Registrar ordered that the plaintiff was to take necessary steps for effecting service upon the defendant. Then on 11-2-2004 the learned counsel for the plaintiff filed an application for substituted service on her as provided under Order V, Rule 20, C.P.C. But on this also the Additional Registrar (0.S.-0 passed an order that in the first instance the summons be sent through TCS and the Registered Post A.D. Accordingly, the summons were repeated for 30-3-2004 which against remained unserved. On 13-10-2004 the plaintiff . Was again directed to file fresh address of the defendant No,2 and although the statement of the learned counsel for the plaintiff was on record that no other address .Was available with him but the matter was being fixed to file the same and lastly it was fixed in Court on 21-3-2005 for nbn-- prosecution on which date the order was passed striking off the prayer against the defendant No,2. Thereafter, the matter was fixed time and again for settlement of issues. On 10-11-2005 the present applications were filed. Notice of these applications were issued to the defendant No,1 but in spite of service none has appeared, therefore, the learned counsel for the plaintiff was heard.

3. ' It was contended by the learned counsel for the plaintiff that the order in question dated 21-3- 2005 was passed on account of the fact that the matter was placed before the Court for non- prosecution due to mistake of the office because the plaintiff had already filed a statement that no other address except the one which the plaintiff had mentioned in the plaint, was in his knowledge, therefore, the application under Order V, Rule 20, C.P.C. Was required to be disposed of by the learned Additional Registrar but the matter was placed inadvertently for non-prosecution and the order was passed hence the same may be recalled by the Court under its inherent powers as provided under section 151, C.P.C, and for the reasons mentioned by, the learned counsel in his affidavit the delay in the submission of the application may be condoned under section 5 of the Limitation Act.

4. ' I have carefully considered the above arguments in the light of the record and reached to the conclusion that the arguments of the learned advocate have immense force.

5. ' It is a matter of record that the counsel for the plaintiff had filed his statement dated 11-12-2003 that no other address of the defendant No,2 was in the knowledge of the plaintiff and then on 11-2- 2004 he filed an application under Order V, Rule 20, C.P.C. For service of the summons upon the defendant No,2 by way of publication of the same in the newspaper and through any other mode.

6. Surprisingly the Additional Registrar without application of judicial mind to the facts and circumstances of the case passed an order on the statement that in the first instance summons be sent through TCS and Registered Post A.D. The plaintiff in compliance of the said order again got issued the summons through the said mode but the exercise remained futile. In spite of this the Additional Registrar did not consider the application under Order V, Rule 20, C.P.C, and again directed the plaintiff to supply fresh address without reference to the statement of the Advocate for the plaintiff on record that no other address was available. Unfortunately the matter was fixed before the Court for non-prosecution on 21-3-2005 when the Court passed the order in question.. It is, therefore, manifest from the record that it was the mistake of the office in placing the matter before the court for non-prosecution in spite of statement of the learned counsel for the plaintiff that no other address was available with him and the application under Order V, Rule 20, C.P.C.

7. Was also on the record.

8. ' It is settled that the Court in its inherent powers as provided A under section 151, C.P.C. Can pass an order correcting the mistake of the Court and provide relief to the party if any adverse order has been passed against it on account of such mistake in order to stop the abuse of the process of the Court. It is also an accepted principle of law that an act of. The Court cannot prejudice anyone..

9. Here in this case the plaintiff has suffered on account of the mistake of the official of the Court placing the matter before the Court under the impression that the plaintiff had failed to comply with the order to provide other address.

10. ' Now, the question is whether the present application under section 151, C.P.C. Is time barred and the answer is in negative because in this case Article 181 of the Limitation Act, 1908 is attracted. In this .Regard the case of Muhammad Chottey Khan v. Muhammad Munir Khan and 2 others PLD 1991 Karachi 331 is relied upon. In this case relying upon the case of Mst. Nigar Bibi v. Salahuddin Khan PLD 1990 SC 76 it has been held that for an application under section 151, C.P.C. No period of limitation has been specifically provided in the Limitation Act, therefore, the period for limitation for filing such application would be governed by Article .181 of the Limitation Act, 1908 which is residuary Article. The said Article provides a period of three years whereas the present application has been filed within the period of one year, therefore, the same is not barred under Article 181 of the Limitation Act.

11. ' The upshot of the above discussion is that since the order dated 21-3-2005 was passed on account of the mistake of the office, therefore, the same is recalled. Consequently, the application under section 151, C.P.C. Stands allowed as prayed. The matter be fixed in the office for disposal of the application under Order V, Rule 20, C.P.C. By the Additional Registrar (O.S.-I).