2017 M L D 141
2017 M L D 141
[Lahore (Rawalpindi Bench)]
Before Shahid Mubeen, J
ZUBAIR KHAN---Petitioner
Versus
HABIB UR REHMAN and another---Respondents
C.R. No.835 of 2015, decided on 28th April, 2016.
(a) Civil Procedure Code (V of 1908)---
----Ss.151 & 12(2)---Limitation Act (IX of 1908), Art. 181---Inherent jurisdiction of court---Scope---Petition for setting aside of decree passed in an application under S.12(2), C.P.C.---Limitation---Application moved under S. 12(2), C.P.C. was dismissed for non-prosecution and petition to set aside the said order was dismissed being time barred---Validity---No provision in Civil Procedure Code, 1908 existed to recall/set aside the order dismissing the application for restoration of petition under S. 12(2), C.P.C,---Litigant could not be left without any remedy---Inherent jurisdiction of court could be invoked when there was no other specific provision to deal with the issue---Petitioner could claim relief under S. 151, C.P.C. in circumstances---No limitation had been prescribed to invoke inherent jurisdiction of the court and application so filed would be governed by Art. 181 of Limitation Act, 1908---Application to invoke inherent jurisdiction could be filed within three years when right to apply accrued---Limitation was mixed question of law and fact---Petitioner had made efforts to explain the delay by projecting sufficient cause---Application under S.12(2), C.P.C. was dismissed at 12.45 (after noon)---High Court observed that cases should not be dismissed in the early hour of the day---Court should refrain from dismissing the cases in default till end of the day when the court was rising---Even mistake with regard to date of hearing could be bona fide by misapprehension of counsel or wrong communication by clerk of Court---Impugned orders were set aside and application filed under S. 12(2), C.P.C. would be deemed to be pending before the Trial Court who should decide the same in accordance with law---Revision was allowed accordingly.
Inayat Masih v. Member (Revenue), Board of Revenue and 2 others 1985 CLC 1609; House Building Finance Corporation v. Mrs. Sarwar Jehan PLD 1992 Kar. 329; PLD 1979 SC 18; PLD 1985 Pesh. 35; PLD 1981 Pesh. 339; 1981 SCMR 533; PLD 1995 Kar. 267 and PLD 1957 Lah. 420 rel.
(b) Administration of justice---
----Law favours adjudication of cases on merits rather than on technicalities.
Ch. Muddasir Niaz for Petitioner.
Nemo for Respondent No.1.
ORDER
SHAHID MUBEEN, J.---None has entered appearance on behalf of respondent No. 1, therefore, he is proceeded against ex parte.
2. Through the instant revision petition under section 115, C.P.C., the petitioner has called into question the legality and validity of order dated 09.07.2015 whereby the application of the petitioner under section 12(2), C.P.C. was dismissed due to non-prosecution and order dated 02.09.2015 whereby application of the petitioner to set-aside the order dated 09.07.2015 was also dismissed being time barred passed by respondent No.2.
3. Briefly stated the facts of the case are that petitioner was tenant under respondent No.1 qua a shop at Railway Carriage Factory, Shopping Centre, Dhoke Hasu, Rawalpindi for the business of photo studio at the rate of Rs.5000/- per month as rent and security amount has also been deposited by the petitioner to respondent No.1 at the time of taking possession of said shop. The petitioner had paid rent of the shop regularly through cheque No.9659078 amounting to Rs.11,000/- and cheque No.9659079 amounting to Rs.8000/- to the respondent No.1 but he with mala fide intention by tampering the cheque No. 9659078 mentioned the amount Rs.211,000/- in place of Rs.11,000/- and registered an FIR No.28 dated 27.01.2011 offence under Section 489-F, Police Station Gunjmandi, Rawalpindi against the petitioner and the petitioner remained in jail due to said FIR. The petitioner filed an application for opinion of hand writing expert before learned Judicial Magistrate, Rawalpindi on 10.05.2011 which was dismissed as the compromise was affected between the parties and the petitioner was acquitted from the charge. The petitioner again started his shop under the tenancy of respondent No.1 and civil litigation regarding shop was also remained pending between the parties which was come to an end in shape of withdrawal of suit as well as appeal on the basis of compromise between the petitioner and respondent No.1. The petitioner was informed through his counsel that an execution petition regarding judgment and decree dated 15.01.2013 passed by learned Additional District Judge, Rawalpindi was pending adjudication before learned Additional District Judge, Rawalpindi. The petitioner filed an application under section 12(2), C.P.C. which was admitted and the operation of judgment and decree dated 15.01.2013 was suspended by the learned Additional District Judge, Rawalpindi vide order dated 17.03.2014. On 28.05.2015 the case was transferred to the Court of respondent No.2 and next date was given as 09.07.2015 which was due to misunderstanding was noted as 16.07.2015 by the learned counsel for the petitioner and on 09.07.2015 the case was dismissed due to non-prosecution. The petitioner filed an application for setting aside order dated 09.07.2015 which was dismissed by respondent No.2 being time barred on 02.09.2015. Hence this civil revision.
4. Learned counsel for the petitioner contends that sufficient cause was given in the application that the counsel noted wrong date as 17.7.2015 instead of 09.07.2015. Further submits that as sufficient cause was given in the application therefore the learned court should frame issue giving an opportunity to the petitioner to explain his absence on 09.07.2015. Further contends that as sufficient cause was given in the application therefore dismissal of the application on account of fact that same should have been filed within 30-days has no force. Further submits that application was supported by an affidavit therefore the dismissal is illegal as there is no counter affidavit by the respondent No.1 as application was dismissed without hearing the other party. Further submits that application for restoration of application under section 12(2), C.P.C. is governed under Article 181 of the Limitation Act, 1908 which provides period of three years from the date when the right to apply accrues.
5. I have heard the learned counsel for the petitioner and perused the record carefully.
6. The petitioner's application under section 12(2), C.P.C. was dismissed in default vide order dated 09.07.2015. The petitioner filed an application for setting aside of said order on 02.09.2015 which was dismissed by the learned court vide impugned order dated 02.09.2015 on the same day, being barred by time. A thorough survey of C.P.C. will indicate that there is no provision for recalling/setting aside the order dismissing the application for restoration of an application under section 12(2), C.P.C. It will not be out of place to mention here 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. However, a litigant suffering from such difficulty cannot be left without any remedy because law favours adjudication of cases on merits rather than on technicalities, therefore, in such a situation inherent jurisdiction of the court can be invoked which has been conferred upon the 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.
7. As it has been observed herein above that there is no specific provision under C.P.C. to restore the application under section 12(2), C.P.C. dismissed for non-prosecution, therefore the petitioner can claim relief under section 151, C.P.C. It can safely be concluded that for filing of application to invoke inherent jurisdiction of the court no limitation has been prescribed under a particular Article of Limitation Act, 1908, hence, an application so filed shall be governed by residuary provision i.e. Article 181 of the Limitation Act, 1908 according to which application for which no period of limitation has been provided elsewhere in the Schedule or Section 48 of C.P.C., prescribed time limit shall be three years when the right to apply accrues.
8. The application filed by the petitioner could be said to have been filed under Section 151, C.P.C. for restoration of application under section 12(2), C.P.C. Reference may be made to case law reported as "Inayat Masih v. Member (Revenue), Board of Revenue and 2 others" (1985 CLC 1609). The relevant portion of the judgment is reproduced herein below:--
"5. No provision of law, has been cited in support of the period of limitation applicable to the restoration petition. In absence of such a provision, the Board of Revenue, was possessed of inherent jurisdiction to order restoration of the petitioner provided sufficient cause was shown for the default. In this case, as observed, learned Member, has proceeded to dismiss the petition for restoration solely on the ground that it was barred by time. This, in my view was not a correct approach. Restoration petition could not be thrown out on ground of limitation. An application for restoration of an application for revision is not governed by any express period of limitation. Residuary Article 181 therefore, may be found to be applicable. In that context, the restoration petition, was obviously well within time."
Further reference may be made to case law titled as "House Building Finance Corporation v. Mrs. Sarwar Jehan" (PLD 1992 Karachi 329). Relevant portion of the judgment is reproduced herein below:--
"The contention of the learned counsel that period for submission of application for restoration of revision application would be governed by Article 163 of the Limitation Act is misconceived. The said Article specifically provides for limitation for submission of application for restoration of suit. The Limitation Act, 1908 does not prescribe any limitation for application for restoration of Revision Application and, therefore, residuary Article 181, which prescribes limitation for application for which no period of limitation is provided elsewhere in the First Schedule to the Limitation Act, 1908.
In the absence of specific provisions, the Court exercises inherent jurisdiction under section 151, C.P.C. for restoration of revision. No limitation is prescribed under the Limitation Act, 1908 for submission of such application. Therefore, the residuary Article 181 will be applicable. Under this Article, the limitation prescribed is 3 years from the date when the right to apply accrues. The learned counsel in this regard referred to the case of Umer Khan v. Wasim Raza and others (1990 MLD 1062)."
9. The dismissal of the application of the petitioner on the ground that same should have been filed within 30-days, in this regard it is pertinent to mention here that learned court has not referred any Article of the Limitation Act however, it will not be out of place to mention here that Article 163 of the Limitation Act,1908 is not applicable which provides period of limitation for submission of application for restoration of suit. Same is the position with regard to Article 164 of the Limitation Act, 1908 which provides a period of 30 days for setting aside a decree passed ex parte in a suit. In other words, this Article is also limited to suits. Reference may be made to case law PLD 1979 Supreme Court 18.
10. Even otherwise, in the case in hand, limitation is mixed question of law and fact particularly keeping in view the reasons for non-appearance as the petitioner has made efforts to explain the delay by projecting sufficient cause, therefore, in such like cases determination of limitation would be a factual controversy requiring evidence to be adduced by both the parties and it would not be safe and in the interest of justice to decide such issue without giving opportunity to the parties to adduce their evidence.
11. It is also discernable from the record that the application under section 12(2), C.P.C. was dismissed by learned judge at 12.45 p.m. It is now an established principle of law that the cases should not be dismissed in the early hour of the day and should refrain for dismissing the cases in default till end of the day when the court is rising. Reference may be made to case laws PLD 1985 Peshawar 35, PLD 1981 Peshawar 339 and
1981 SCMR 533.
12. Even the mistake about the date of hearing, was not a lapse of category, which could not rightly be excluded from scope of bona fide mistake as such mistake could occur by misapprehension of advocate and some time by unintentional wrong communication by clerk of Court. Reference may be made to case law PLD 1995 Karachi 267 and PLD 1957 Lahore 420.
13. There is also an important fact that the application for restoration of application under section 12(2), C.P.C. was supported by an affidavit which was not rebutted by filing counter affidavit of the respondent No.1, therefore, the contents of the affidavit will be deemed to be true.
14. Sequel to the above, this civil revision is allowed and the impugned orders dated 09.07.2015 and 02.09.2015 are hereby set aside. The application under section 12(2), C.P.C. shall be deemed to be pending before the learned Additional District Judge concerned who shall decide the same strictly in accordance with law after hearing the parties. No order as to cost.
ZC/Z-19/L Revision allowed.
[Lahore (Rawalpindi Bench)]
Before Shahid Mubeen, J
ZUBAIR KHAN---Petitioner
Versus
HABIB UR REHMAN and another---Respondents
C.R. No.835 of 2015, decided on 28th April, 2016.
(a) Civil Procedure Code (V of 1908)---
----Ss.151 & 12(2)---Limitation Act (IX of 1908), Art. 181---Inherent jurisdiction of court---Scope---Petition for setting aside of decree passed in an application under S.12(2), C.P.C.---Limitation---Application moved under S. 12(2), C.P.C. was dismissed for non-prosecution and petition to set aside the said order was dismissed being time barred---Validity---No provision in Civil Procedure Code, 1908 existed to recall/set aside the order dismissing the application for restoration of petition under S. 12(2), C.P.C,---Litigant could not be left without any remedy---Inherent jurisdiction of court could be invoked when there was no other specific provision to deal with the issue---Petitioner could claim relief under S. 151, C.P.C. in circumstances---No limitation had been prescribed to invoke inherent jurisdiction of the court and application so filed would be governed by Art. 181 of Limitation Act, 1908---Application to invoke inherent jurisdiction could be filed within three years when right to apply accrued---Limitation was mixed question of law and fact---Petitioner had made efforts to explain the delay by projecting sufficient cause---Application under S.12(2), C.P.C. was dismissed at 12.45 (after noon)---High Court observed that cases should not be dismissed in the early hour of the day---Court should refrain from dismissing the cases in default till end of the day when the court was rising---Even mistake with regard to date of hearing could be bona fide by misapprehension of counsel or wrong communication by clerk of Court---Impugned orders were set aside and application filed under S. 12(2), C.P.C. would be deemed to be pending before the Trial Court who should decide the same in accordance with law---Revision was allowed accordingly.
Inayat Masih v. Member (Revenue), Board of Revenue and 2 others 1985 CLC 1609; House Building Finance Corporation v. Mrs. Sarwar Jehan PLD 1992 Kar. 329; PLD 1979 SC 18; PLD 1985 Pesh. 35; PLD 1981 Pesh. 339; 1981 SCMR 533; PLD 1995 Kar. 267 and PLD 1957 Lah. 420 rel.
(b) Administration of justice---
----Law favours adjudication of cases on merits rather than on technicalities.
Ch. Muddasir Niaz for Petitioner.
Nemo for Respondent No.1.
ORDER
SHAHID MUBEEN, J.---None has entered appearance on behalf of respondent No. 1, therefore, he is proceeded against ex parte.
2. Through the instant revision petition under section 115, C.P.C., the petitioner has called into question the legality and validity of order dated 09.07.2015 whereby the application of the petitioner under section 12(2), C.P.C. was dismissed due to non-prosecution and order dated 02.09.2015 whereby application of the petitioner to set-aside the order dated 09.07.2015 was also dismissed being time barred passed by respondent No.2.
3. Briefly stated the facts of the case are that petitioner was tenant under respondent No.1 qua a shop at Railway Carriage Factory, Shopping Centre, Dhoke Hasu, Rawalpindi for the business of photo studio at the rate of Rs.5000/- per month as rent and security amount has also been deposited by the petitioner to respondent No.1 at the time of taking possession of said shop. The petitioner had paid rent of the shop regularly through cheque No.9659078 amounting to Rs.11,000/- and cheque No.9659079 amounting to Rs.8000/- to the respondent No.1 but he with mala fide intention by tampering the cheque No. 9659078 mentioned the amount Rs.211,000/- in place of Rs.11,000/- and registered an FIR No.28 dated 27.01.2011 offence under Section 489-F, Police Station Gunjmandi, Rawalpindi against the petitioner and the petitioner remained in jail due to said FIR. The petitioner filed an application for opinion of hand writing expert before learned Judicial Magistrate, Rawalpindi on 10.05.2011 which was dismissed as the compromise was affected between the parties and the petitioner was acquitted from the charge. The petitioner again started his shop under the tenancy of respondent No.1 and civil litigation regarding shop was also remained pending between the parties which was come to an end in shape of withdrawal of suit as well as appeal on the basis of compromise between the petitioner and respondent No.1. The petitioner was informed through his counsel that an execution petition regarding judgment and decree dated 15.01.2013 passed by learned Additional District Judge, Rawalpindi was pending adjudication before learned Additional District Judge, Rawalpindi. The petitioner filed an application under section 12(2), C.P.C. which was admitted and the operation of judgment and decree dated 15.01.2013 was suspended by the learned Additional District Judge, Rawalpindi vide order dated 17.03.2014. On 28.05.2015 the case was transferred to the Court of respondent No.2 and next date was given as 09.07.2015 which was due to misunderstanding was noted as 16.07.2015 by the learned counsel for the petitioner and on 09.07.2015 the case was dismissed due to non-prosecution. The petitioner filed an application for setting aside order dated 09.07.2015 which was dismissed by respondent No.2 being time barred on 02.09.2015. Hence this civil revision.
4. Learned counsel for the petitioner contends that sufficient cause was given in the application that the counsel noted wrong date as 17.7.2015 instead of 09.07.2015. Further submits that as sufficient cause was given in the application therefore the learned court should frame issue giving an opportunity to the petitioner to explain his absence on 09.07.2015. Further contends that as sufficient cause was given in the application therefore dismissal of the application on account of fact that same should have been filed within 30-days has no force. Further submits that application was supported by an affidavit therefore the dismissal is illegal as there is no counter affidavit by the respondent No.1 as application was dismissed without hearing the other party. Further submits that application for restoration of application under section 12(2), C.P.C. is governed under Article 181 of the Limitation Act, 1908 which provides period of three years from the date when the right to apply accrues.
5. I have heard the learned counsel for the petitioner and perused the record carefully.
6. The petitioner's application under section 12(2), C.P.C. was dismissed in default vide order dated 09.07.2015. The petitioner filed an application for setting aside of said order on 02.09.2015 which was dismissed by the learned court vide impugned order dated 02.09.2015 on the same day, being barred by time. A thorough survey of C.P.C. will indicate that there is no provision for recalling/setting aside the order dismissing the application for restoration of an application under section 12(2), C.P.C. It will not be out of place to mention here 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. However, a litigant suffering from such difficulty cannot be left without any remedy because law favours adjudication of cases on merits rather than on technicalities, therefore, in such a situation inherent jurisdiction of the court can be invoked which has been conferred upon the 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.
7. As it has been observed herein above that there is no specific provision under C.P.C. to restore the application under section 12(2), C.P.C. dismissed for non-prosecution, therefore the petitioner can claim relief under section 151, C.P.C. It can safely be concluded that for filing of application to invoke inherent jurisdiction of the court no limitation has been prescribed under a particular Article of Limitation Act, 1908, hence, an application so filed shall be governed by residuary provision i.e. Article 181 of the Limitation Act, 1908 according to which application for which no period of limitation has been provided elsewhere in the Schedule or Section 48 of C.P.C., prescribed time limit shall be three years when the right to apply accrues.
8. The application filed by the petitioner could be said to have been filed under Section 151, C.P.C. for restoration of application under section 12(2), C.P.C. Reference may be made to case law reported as "Inayat Masih v. Member (Revenue), Board of Revenue and 2 others" (1985 CLC 1609). The relevant portion of the judgment is reproduced herein below:--
"5. No provision of law, has been cited in support of the period of limitation applicable to the restoration petition. In absence of such a provision, the Board of Revenue, was possessed of inherent jurisdiction to order restoration of the petitioner provided sufficient cause was shown for the default. In this case, as observed, learned Member, has proceeded to dismiss the petition for restoration solely on the ground that it was barred by time. This, in my view was not a correct approach. Restoration petition could not be thrown out on ground of limitation. An application for restoration of an application for revision is not governed by any express period of limitation. Residuary Article 181 therefore, may be found to be applicable. In that context, the restoration petition, was obviously well within time."
Further reference may be made to case law titled as "House Building Finance Corporation v. Mrs. Sarwar Jehan" (PLD 1992 Karachi 329). Relevant portion of the judgment is reproduced herein below:--
"The contention of the learned counsel that period for submission of application for restoration of revision application would be governed by Article 163 of the Limitation Act is misconceived. The said Article specifically provides for limitation for submission of application for restoration of suit. The Limitation Act, 1908 does not prescribe any limitation for application for restoration of Revision Application and, therefore, residuary Article 181, which prescribes limitation for application for which no period of limitation is provided elsewhere in the First Schedule to the Limitation Act, 1908.
In the absence of specific provisions, the Court exercises inherent jurisdiction under section 151, C.P.C. for restoration of revision. No limitation is prescribed under the Limitation Act, 1908 for submission of such application. Therefore, the residuary Article 181 will be applicable. Under this Article, the limitation prescribed is 3 years from the date when the right to apply accrues. The learned counsel in this regard referred to the case of Umer Khan v. Wasim Raza and others (1990 MLD 1062)."
9. The dismissal of the application of the petitioner on the ground that same should have been filed within 30-days, in this regard it is pertinent to mention here that learned court has not referred any Article of the Limitation Act however, it will not be out of place to mention here that Article 163 of the Limitation Act,1908 is not applicable which provides period of limitation for submission of application for restoration of suit. Same is the position with regard to Article 164 of the Limitation Act, 1908 which provides a period of 30 days for setting aside a decree passed ex parte in a suit. In other words, this Article is also limited to suits. Reference may be made to case law PLD 1979 Supreme Court 18.
10. Even otherwise, in the case in hand, limitation is mixed question of law and fact particularly keeping in view the reasons for non-appearance as the petitioner has made efforts to explain the delay by projecting sufficient cause, therefore, in such like cases determination of limitation would be a factual controversy requiring evidence to be adduced by both the parties and it would not be safe and in the interest of justice to decide such issue without giving opportunity to the parties to adduce their evidence.
11. It is also discernable from the record that the application under section 12(2), C.P.C. was dismissed by learned judge at 12.45 p.m. It is now an established principle of law that the cases should not be dismissed in the early hour of the day and should refrain for dismissing the cases in default till end of the day when the court is rising. Reference may be made to case laws PLD 1985 Peshawar 35, PLD 1981 Peshawar 339 and
1981 SCMR 533.
12. Even the mistake about the date of hearing, was not a lapse of category, which could not rightly be excluded from scope of bona fide mistake as such mistake could occur by misapprehension of advocate and some time by unintentional wrong communication by clerk of Court. Reference may be made to case law PLD 1995 Karachi 267 and PLD 1957 Lahore 420.
13. There is also an important fact that the application for restoration of application under section 12(2), C.P.C. was supported by an affidavit which was not rebutted by filing counter affidavit of the respondent No.1, therefore, the contents of the affidavit will be deemed to be true.
14. Sequel to the above, this civil revision is allowed and the impugned orders dated 09.07.2015 and 02.09.2015 are hereby set aside. The application under section 12(2), C.P.C. shall be deemed to be pending before the learned Additional District Judge concerned who shall decide the same strictly in accordance with law after hearing the parties. No order as to cost.
ZC/Z-19/L Revision allowed.
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