SIKANDAR vs SALEH MUHAMMAD

1. ' NAIMUDD1N, .J.--By the judgment dated 12th February, 1981, Mr. Justice Abdul Hafeez Memon allowed the second appeal and set aside the order dated 9th September, 1975, passed by the Controller and the judgment dated 21st July, 1976, passed by the Additional District Judge, Karachi.

2. Though the judgment was ex parte but it was based on merits.

3. Now, by the present application under section 12 (2), C.P.C. Read with section 151, C.P.C. The respondent prays for review or setting aside of the judgment on the ground that the same has been obtained by the appellant by fraud and misrepresentation. The office has raised objection to the maintainability of the application on the ground of limitation.

4. ' We have heard Mr. Hussain Shaikh Advocate for the respondent in support of the application. He submits that for an application for review on the ground of fraud or misrepresentation the period of limitation provided is 3 years. He relies on article 181 of the Limitation Act. We do not agree for the article applicable for review in the present case is article 173 which provides a period of 90 days from the date of the decree B or order, for making an application for review. Article 181 of the Limitation Act is a residuary Article and specifically provides that for application for which no period of limitation is provided elsewhere in the schedule to the Limitation Act the period for such an application is three years from the date when the right to apply accrues. We, therefore, hold that this application is barred by time. Even otherwise it has no merits. So far as the plea of fraud is concerned no particulars whatsoever have been given. The applicant has however, stated that respondent's counsel Mr. Ajaz Ali kept him in the dark and received expenses for filing some documents. But this is a matter between the respondent and his counsel and has nothing to do with the appellant. With regard to the plea of misrepresentation it is claimed that mother of the minor who had filed the appeal on behalf of the minors had not taken the plea that she had gone twice in April to the respondent/applicant to tender the rent either in her written statement or in the memorandum of first appeal or in the memorandum of the second appeal filed in this Court. So far as the memorandum of second appeal is concerned, we find that in paragraph (6) she has stated as follows : "6.-That though the appellant has claimed that particular mode of recovery of rent was adopted by the applicant but it is not correct to say that the opponent waited for the son of the applicant to come and collect the rent. As a matter of fact in spite of the practice, the opponent did tender rent through his mother to the applicant within the prescribed period which fact is pleaded in the written statement also and which fact is admitted by the applicant also that the mother of opponent and witness Yusuf did come in the month of April (within the prescribed period) to pay the rent. The reason given by him for not accepting it is clearly unacceptable in the circumstances of the case as the alleged sub-tenancy has not been proved."

5. ' The appellant has further taken the ground that the learned Appellate Court had not applied its mind to the evidence on record. We have also gone through the evidence. The mother of the appellant has stated as follows :- "The applicant used to collect the rent for 6 months together as is clear from Exh.

4. Thereafter, I contacted the applicant as to why the boy has not come to collect rent. 1 was accompanied by the husband of my sister Yousaf but the applicant avoided to accept the rent on one pretext or the other and again approached him but he avoided."

6. ' Therefore, the finding of Mr. Justice Abdul Hafeez Memon that the appellant's mother and the witnesses Yousuf Bhai who used to look after the business in the shop went to the respondent/landlord in the month of April, to tender the rent is not based on any misrepresentation or misreading of evidence.

7. ' We, therefore, dismiss this review application in limine. Consequently C. M. As. Nos. 225 and 226 of 1982 are ago dismissed.

8. Review .