PLJ 2003
Present:
ejaz afzal khan, J.
Mst. GOHAR TAJA-Petitioner
versus
SAJID
and others-Respondents
C.R. No. 165 of 2002, decided on 30.4.2003.
(i) Civil Procedure Code, 1908 (V of 1908)--
—-0. IX, R. 8-Limitation Act, 1908 (IX of 1908), Art. 181-Application for restoration of suit-Such application having been made within three years of order of dismissal of suit could not be deemed to be barred by limitation, therefore, the same was restored. [P. 311] C
(ii) Limitation Act, 1908 (IX of 1908)--
—-Ss. 5 & 12-Civil Procedure Code, 1908 (V of 1908), S* 115-Revision filed after 90 days of the order of Court—Time spent in obtaining copies of judgment/order whether to be excluded from period of limitation-Expression "revision" is no where mentioned in S. 12 of Limitation Act, 1908 and so is that of second appeal however, none of such proceedings can be entertained without attested copies of impugned judgment, therefore, time spent in obtaining attested copies thereof, has to be excluded under S. 5 of Limitation Act, 1908-Proviso to sub-section (1) of S. 115 of C.P.C. envisages furnishing copies of pleadings, documents and order of sub-ordinate Court, therefore, principles of propriety and good conscience demand that such time be excluded by applying principles of S. 12 of Limitation Act, 1908 by considering application under S. 5 thereof. [P. 310] A & B
PLD 1977
Mr. Taj-ud-Din Khan, Advocate for Petitioner.
Mr. Muhammad Alam Khan, Advocate for Respondents.
Date of hearing : 30.4.2003.
judgment
The petitioner through the instant petition has Questioned the order dated 17.11.2001 of the learned Distt Judge, Mardan whereby he dismissed the appeal filed by the petitioner and thus upheld the order dated 22.5.2000 of the learned trial Court rejecting the application for restoration of the suit dismissed in default on 18.12.1997.
2. The learned counsel appearing on behalf of the petitioner contended that the date, on which the suit was dismissed for non-prosecution, having been given by the Reader of the Court and not by the Presiding Officer cannot be treated as a date of hearing within the contemplation of Order-IX, Rule 9 of the C.P.C. and as such the application was governed by Article 181 of the Limitation Act and it being filed within a period of 3 years from the date of knowledge of such dismissal was well within time. The learned counsel to support his contention placed reliance on the case of Jamila Begum and others us. Abdullah Jan and others (P.L.D. 1997 Peshawar 55) and Muhammad Qasim and others vs. Moujuddin and others (1995 SCMR 218).
As against that the learned counsel appearing on behalf of the respondents by referring to the date of the impugned order and that of filing the revision petition which are 17,11.2001 and 4.3.2002 respectively contended that the petition for having been filed by the petitioner after the period of Limitation is liable to be dismissed as the time consumed in obtaining the attested copies of the impugned order cannot be excluded by virtue of Section 12 of the Limitation Act because the word revision does not find mention therein. The learned counsel to support his contention placed reliance on the case of Said Muhammad vs. Sher Muhammad and 2 others (2001 MLD 1546). While controverting the arguments addressed by the learned counsel for the petitioner, the learned counsel for the respondents urged that in view of amendment in Order XVII, Rule-5 of the C.P.C. if a ministerial officer in the absence of a Presiding Officer on a date in the proceedings of a suit given a slip to the parties specifying a date for doing a needful in the suit, the Court shall conduct such proceedings on the adjourned date notwithstanding the fact it was the former rather than the latter who directed it. The learned counsel placed reliance on the case of Imtiaz vs. Mst. Shagufta (2002 C.L.C. 1272).
4. I have gone through the record and carefully considered the submissions of the learned counsel for the parties.
5.
The argument that the time consumed in obtaining the
attested copies of the impugned order cannot be excluded under Section 12 of
the Limitation
Act as the word revision is not mentioned therein, therefore, the revision petition
for having been filed after the expiration of 90 days is liable to be dismissed, is
no doubt, quite a deft and dexterous argument but I am afraid, it is not
strong enough to constitute a bulwark in the way of entertaining of revision petition raising
a substantial question of law and fact if
considered in the context of Section 115 of the C.P.C.
6. It is true that the expression revision is no where mentioned in Section 12 of the Limitation Act and so is that of second appeal but since none of these proceedings can be entertained without the attested copies of /\ the impugned judgments, such time which is consumed in obtaining their attested copies has to be excluded under Section 5 of the Limitation Act. It was held in the case of Amir Hussain Shah and others vs. Umar and 11 others (1986 SCMR 800) that where it was made mandatory that second appeal cannot be filed without the attested copies of the impugned judgment, the period consumed in obtaining the copies was to be.-excluded under Section 5 of the Limitation Act. In the case of Pir Muhammad and others vs. Lai Din (PLD 1964 (West Pakistan) 461), it was held that the period of time spent by the parties in obtaining the copies of the judgment and decrees of the lower Courts be excluded by applying the principles of Section 12 of the Limitation Act by considering an application under Section 5 thereof.
Since in view of the proviso to sub-section (1) of Section 115 of the C.P.C. a person making an application under this sub-section shall, in its support, furnish copies of the pleadings, documents and order of the subordinate Court, the principles of propriety and good conscience demand that such time be excluded by applying the principles of Section 12 of the Limitation Act by considering an application under Section 5 thereof. Even fi otherwise when this Court can suo moto exercise its jurisdiction under Section 115 of the C.P.C., if any of the conditions sine- qua-non for its exercise are in existence, it would be just academic to discuss this aspect of the case in any further detail particularly when there is no such fetter of law of limitation on the exercise of its jurisdiction under the aforesaid provisions of law.
8. The argument addressed on the strength of the judgment rendered in the case of Imtiaz vs. Mst. Shagufta (supra) will also do little to project and prop up the case sought to be convassed by the learned counsel for the respondents at the bar, firstly, because the instant case is not covered by any of the provisions of Order-XVII or its rules and secondly because the aforesaid provisions being "different and distinct in their scope and application cannot be extended to a suit dismissed in default under the provisions of Order-IX of the C.P.C., moreso when they stand fully interpretted in the case of Mst. Jamila Begum and others vs. Abdullah Jan and others and the case of Muhammad Qasim and others us. Moinuddin and others (supra) wherein it was held that a suit dismissed for non prosecution on a date having been given by the Reader of the Court and not by the Presiding Officer thereof cannot be treated to be a date of hearing within the terms of Order-IX Rule 8 of the C.P.C. and as such the period of limitation would be governed by Article 181 and not Article 163 of the Limitation Act.
9. As the application for restoration of the suit was made by the petitioner within 3 years, it cannot be held to be barred by the law of Limitation.
10. For the reasons discussed above, this petition is allowed, the impugned orders are set aside, the suit dismissed for non-prosecution is hereby restored and the same is sent back to the learned trial Court for proceeding therewith in accordance with law.
11. The parties are directed to appear before the Court concerned on 13.5.2003.
(A.A.) Revision accepted.