MUHAMMAD ASHFAQ Versus SHAUKAT ALI

This is an application under section 151 of the Code of Civil Procedure filed under the following circumstances. The petitioner filed a civil suit in March 1971, against the respondents for the recovery of a sum of Rs. 10,00 on 22-7-1971 the bearing of the case was adjourned to 5-10-1971 for which date the petitioner was directed to deposit process-fee. The petitioner's case is that his counsel noted 12-10-1971 as the next date of hearing by mistake. Consequently when the case was called on 5-10-1971 neither the petitioner was present nor his counsel and the record did not indicate any process-fee having been deposited for the service of the defendants for that date. The learned Civil Judge accordingly dismissed the suit. Then the petitioner applied for the restoration of the suit but the application was rejected on 20-6-1972. Hence the present application under section 151, C. P. C. which is an independent application not having been filed in the cause of any proceedings already pending in this Court.

2. The first question for consideration is whether in the circumstances of the case this Court has the power under section 151, C. P. C., or under any other provision of law, to interfere with the orders of the Civil Judge dated 5-10-1971 and 20-6-1972. The learned counsel for the petitioner has relied in this behalf on the case reported as A I R 1930 Lah. 440 Although, in similar circumstances, the learned Single Judge dealing with that case granted relief in the purported exercise of his powers under section 151, C;. P. C., that case cannot be treated as a precedent, for the question whether the High Court had the authority under section 151, C. P. C. to interfere with an order of the subordinate Court in the circumstances of the case was never debated before the learned Single Judge. On the other hand a Division Bench of this Court considered this question in Karamatullah Khan v. Government of West Pakistan (P L D 1967 Lah. 171), wherein it clearly laid down that the inherent powers under section 151, C. P. C. could not be exercised in a case where no matter was pending before the Court. Similarly in Inayatufah Butt v. Cantonment Board Rawalpindi and another (P L D 1957 Lah. 583), a learned Single Judge of this Court held that the word "Court" occurring to section 151, C. P. C. referred to the Court before which proceedings were pending in which action,. which was necessary for the ends of justice, or to prevent abuse of the process of the Court, was to be taken. In view of these authorities it is clear that the present application is misconceived. This Court has no authority under section 151, C. P. C. to interfere with the impugned orders.

2. Apart from the question of this Court's powers under section 151, C. P. C., it is evident from the record that the learned trial Court rightly refused to restore the suit. Although it was admittedly the fault of the petitioner's counsel in the trial Court which resulted in default, the learned counsel failed to give an affidavit to show that it was a genuine mistake on his part. Instead the peitioner's affidavit was filed which the trial Court refused to rely upon on the ground that the record did not indicate the presence of the petitioner (the plaintiff) on the earlier date. Secondly, no receipt showing deposit of process-fee was produced before the trial Court. It was merely asserted that the fee had been deposited. Thus it is clear that the learned trial Court was justified in refusing to restore the suit. There is no dispute, however, that the dismissal of the suit on 5-10-1971 was perfectly in order regardless of whether it was under rule 2 or rule 3 of Order IX of the C. P. C. In these circumstance there is no good ground for interference even on the revisional side.

3. It may further be noted that although the application for the restora tion of the suit was rejected on 20-6-1972, the petitioner waited apparently without justification for four long months before agitating the matter in the High Court by filing the present petition on 25-10-1972.

4. For the reasons recorded above, the petition is dismissed. In the circumstances of the case, however, the parties are left to bear their own costs.

S. Q. Petition dismissed.