MUHAMMAD SADIQ Versus BASHIRAN

ORDER

IFTIKHAR MUHAMMAD CHAUDHARY, J .‑‑In the instant petition leave has been prayed to file appeal against order dated July 1, 1999 passed by Lahore High Court whereby Civil Revision No.3319 of 1994 was re‑admitted while accepting C.M. No.735 of 1996 filed by respondents.

2. Briefly stating facts for disposal of instant petition are that Civil Revision referred to hereinabove was dismissed for non‑prosecution on May 29, 1995 by the Lahore High Court, Lahore. Civil Miscellaneous Application number of which, too; has been mentioned hereinabove was filed on November 16, 1996 for recalling/setting aside the order of dismissal of revision petition for its restoration and decision on merits. Title of application reveals that relief was claimed by invoking provisions of Order IX, Rule 9 read with section 151, C.P.C. The application was contested by the petitioner inter alia on the ground that request to recall/set aside the order of dismissing revision petition has been filed beyond the period of limitation and no explanation of each day has been offered. In addition to it, sufficient grounds have also not been disclosed for seeking indulgence of the Court.

3. Learned Single Judge vide impugned order accepted the application and restored the revision. Concluding para. from the order reads as under:‑‑

"I have heard the learned counsel for the parties. This C.M. 735 of 1996 for the restoration of the main revision petition was filed after a lapse of one and a half years and the requirement of law is that the delay of each day be explained. The petitioners poor litigants had suffered due to the negligence of their counsel, had they been informed about the date of hearing of the revision, they would have arranged their representation in the Court on that date. Although the petition did not contain the sufficient grounds for the condonation of delay of the application, but the propriety demands that the revision petition be decided on merits. The revision petition if restored subject to the payment of cost will suffice to meet the ends of justice. Taking the view that the Court should adjudicate on merits, than to oust the litigant on mere technicality, and that too for their no fault. This C.M. is accepted and the revision petition is restored to its original number subject, to the payment of cost of Rs.6,000 (six thousand) to, the respondent before the final hearing of the revision petition".

4. Mr. Malik Amjad Pervez, Advocate strenuously argued that petition was barred by time as according to him Article 169 of Limitation Act has prescribed 30 days for restoration of revision petition. He was also of the opinion that delay. in ‑filing of the application has also not been explained with cogent reasons, therefore, indulgence was not warranted by the High Court. His further argument was that the reasons shown' in the application for not approaching the Court promptly because of getting no information from the counsel itself is no ground to restore the revision and in the case where an Advocate has been found negligent in discharging his duties and a litigant can sue him in tort as has been‑held in Mirza Muhammad Saeed v. Sahab‑ud‑Din and 8 others PLD 1983 SC 385.

5. At the very outset it may be observed that dismissal of a civil revision after its admission by the Court seized with it for non‑prosecution is not legally well‑recognized for the reason that jurisdiction of a revisional Court under section 115, C.P.C. is invoked by an aggrieved person to point out illegalities or irregularities or the jurisdictional defects in the proceedings and the orders passed by the subordinate forums. Therefore, on entertaining a revision petition, Court exercises its supervisory jurisdiction to satisfy itself as to whether jurisdiction has begin exercised properly and whether proceedings of the subordinate Courts do suffer or not from any illegality or irregularity. In other words, after filing a revision, matter rests between the revisional and subordinate Courts. To substantiate this argument reference may be made to Naoomal Tourmal v. Tarachand Sobharaj and another AIR I 1933 Sindh 200. Thus is advised that the Court after having entertained a civil revision instead of dismissing it in default, may make efforts to dispose it of in accordance with the parameters laid down by section 115, C.P.C.

6. There is no doubt that civil revision under section 115, C.P.C. entertained by the High Court has to be disposed of in view of provisions of section 117, C.P.C. A thorough survey of C.P.C. will indicate that there is no provision for recalling/setting aside the order dismissing a revision for non‑prosecution. It may be noted that there are many other proceedings under C.P.C. in respect of which no procedure has been laid down if the same is dismissed for non‑prosecution.. Reference in this behalf may be made to the cases of (i) Bharat Chandra Nath and another v. Lasin Sarkar (Calcutta Weekly Notes) Vol. XXI 1916‑17 page 769, (ii) Sourendra Nath Mitter v. Jatindra Nath Ghose (Calcutta Weekly Notes) Vol. 32, page 811 and (iii) Syed Qasim Shah v. Deputy Commissioner, Kachhi District and another PLD 1976 Quetta 42. But a litigant suffering from such difficulty cannot be left without any remedy because law favours adjudication of matters on merits unless there exists some insurperable practical obstacle as held by this Court in the case of Wali and others v. Manak and others PLD 1965 SC 651. Therefore, to overcome such situation inherent jurisdiction of the Court can be invoked which has been conferred upon trial, appellate and revisional Courts in terms of section 151, C.P.C. However, subject to the condition that no other specific provision to deal with the issue is available under C.P.C. Reference. may be made to the case of Mrs. Mehr Sultan Jung v. Qurban Hussain 1972 SCMR 73.

7. As it has been observed hereinabove that there is no specific provision in Civil Procedure Code to restore a revision dismissed for non‑prosecution, therefore, an aggrieved party can claim relief under section 151, C.P.C. In this regard reference may be made to House Building Finance Corporation v. Mrs. Sarwar Jehan PLD 1992 Karachi 329.

8. In continuation of above conclusion it is to be observed that for filing of an application to invoke inherent jurisdiction of Court no limitation has been prescribed under a particular Article of Limitation Act. Therefore the application so filed shall be governed by residuary provision i.e. Article 181 of Limitation Act, according to which application for which no period of limitation is provided elsewhere in the Schedule or section 48 of Code of Civil Procedure, prescribed time limit shall be three years when the right to sue accrues.

9. Because in the case in hand application dated November 16, 1996 was not competent under Order IX, Rule 9,. C.P.C., therefore, learned High Court had to treat it as an application under section 151, C.P.C. As the same was filed within the prescribed period of three years, therefore, it was not obligatory upon the respondents to have explained the delay of each day.

10. Above question can also be looked from another angle namely the learned High' Court has exercised its inherent jurisdiction in condoning the delay and accepted statement of facts on behalf of respondents for not appearing in Court. Therefore, this Court is not bound to interfere in the discretionary relief because this Court is not exercising jurisdiction of Appellate Court. However, interference is made under Article 185(3) of the Constitution of Islamic Republic of Pakistan by this Supreme Court where grave injustice has been caused. Reference in this behalf may be made to Jamshed Ahmad v. Muhammad Akram Khan and another 1975 SCMR 149.

11. The judgment cited by the learned counsel is inapt for the foregoing reasons, therefore, need not to be discussed in detail. Nor his argument that Article 169 of the Limitation Act will govern such cases is acceptable.

Thus, above discussion persuades us to dismiss the petition as it has no merits. However, before parting with the judgment we would like to leave a note that learned High Court may make efforts to dispose of the revision petition pending before it from 1994 expeditiously. Leave to appeal is refused.

M.B.A./M‑53/S Petition dismissed.