P L D 1977 Supreme Court 599 (PLP)

Anisminic Ltd. v: Foreign Compensation Commission and others (1969) 2 A C 147 ref. (e) Civil Procedure Code (V of 1908 ) -- S. 115 & O. IX, r. 7 read with S. 151--Ex parte order, setting aside of--Decisions totally illegal.-Remedy provided for challenging such orders-Petition already filed under O. 1X, r. 7 and dismissed on account of petitioner's gross negligence-Petitioner, held, failed to make out any case for invoking High Court's revisional jurisdiction Trial Court's order not being a final order, petitioner, held further, also not entitled to grant of special leave-Constitution of Pakistan (1973), Art. 185(3). Raja Muhammad Akram, Advocate Supreme Court of Pakistan instructed by Rana Maqbool Ahmad Qadri, Advocate-on-Record for Petitioner. Nemo for Respondents. Date of hearing : 26th, April 1977. DORAB PATEL J.-This petition for leave arises out of an order passed by the Civil Judge, Lahore, in a suit filed by the respondents against the petitioner. The suit is for the recovery of a sum of money, and after tire petitioner had filed its written statement, the respondents sought leave to amend their plaint. This request was allowed by an order of the Civil Judge dated 17-11-1975 and according to Mr. Akram the respondents had to file their amended plaint on 1-12-1975. They did so, but as neither the learned counsel who were representing the petitioner nor the petitioner were present in Court on 1-12-1975, the learned Civil Judge passed an order that the suit would proceed ex parte against the petitioner. 'the petitioner claims to have learnt of this order on 25-3-1976 and it claims to have filed an application immediately under Order IX, rule 7 of the Civil Procedure Code for setting aside this order. Learned counsel could not state when this application was filed and the question is important because the petitioner had to show that this application was within time. Be this as it may, this application came up for hearing on 21-6-1976, but as once again the petitioner and both its learned counsel were assent, this application was dismissed for default. Their the petitioner filed another application against this order on 1-12-1975 under Order IX, rule 7 read with section 151 of the Civil Procedure Code. It would appear that this application was filed on 10-12-1976 and was dismissed by the learned Civil Judge on 7-2-1977. Tire petitioner then challenged the order of 1-12-1975 and of 7-2-1977 in a Revision in the Lahore High Court which was dismissed in limine on 18-2-1977. Hence this petition for leave. According to Mr. Akram, the trial Court's order of 1-12-1975 was illegal and void, because the suit against the petitioner was fixed on that day only for the filing of tire amended plaint of the respondents, therefore, according to learned counsel. the petitioner was not required to be present in Court on that day, and the Court had erred in passing orders against the petitioner on account of its absence. The question whether the petitioner's presence was necessary in the trial Court on 1-12-1975 would depend on the order passed on the previous date, namely 17-1 t-1975. and as that order has been withheld, the learned counsel's submission is not fit to be accepted on this short ground, and the petitioner had to prove that it hold good cause for its absence' on 1-12-1975. Mr. Akram's explanation was that the petitioner's junior council who was attending to the case had suddenly fallen ill. We were not informed e of the nature of this illness nor is there any explanation op the petitioner's failure to be present in Court on 1-12-1975. It is also significant that neither the petitioner nor Its learned counsel took any steps until 25-3-1:76 to find out what orders the trial Court had passed on 1-12-1975. In the circumstances discussed, it is doubtful if the petitioner had made out good cause ire support of its application under rule 7 of Order IX, Civil Procedure Code, but it is not necessary to examine this question further because this application was fixed for hearing on 21-6-1976, and as on that day, the petitioner and its learned coun3el were again absent, this application was dismissed for default. Mr. Akram, however, relied on the fact that the petitioner had repeated its application for vacating the Vial Courts order of 1-!2-1975, and, according to the affidavit in support of this second application, it would appear that this second application was filed on 1-121976. The delay in filing this second application does not indicate that the petitioner was, prosecuting its remedies with diligence. Be this as it may, this second application was not maintainable, but as the petitioner had also invoked the provisions of section 151 of the Civil Procedure Code, we would clarify that C the provisions of this section, cannot be invoked to defeat the provision of Civil Procedure a Code nor can they be invoked to farther injustice or to condone gross negligence. Therefore, this second application was only fit to be dismissed and was dismissed, and do exception can be taken so the order of the High Court in dismissing the Revision of the petitioner. Finally, according to `Mr. Akram, even if the petitioner was negligent in prosecuting its remedies against the trial Court's order of 1-1 u-1975, this was not material because brat order was void, and could be challenged, at any time irrespective of the question of limitation When we enquired how the order of 1-12-19Ti was void. learned counsel submitted that this order was void and without jurisdiction, because the case had net been fixed for hearing on 1-12-19 i5. . Now whether the respondent's suit wag fixed for hearing or not on 1-12-1975 would depend on the order passed on to previous date, namely 17-11-1975, therefore, learned counsel's submission p cannot be accepted because this order of 17-11-1975 has not been produced. However, in view of the frequency with which gross negligence is sough to be condoned on the plea that the impugned order was void or without jurisdiction, we would observe that a void order or an order without jurisdiction is only a type of an illegal order passed by a Court and the fact that it has been passed and that it may, therefore, create rights cannot be altered by describing It as void or without jurisdiction And, further, the expressions void orders and orders without jurisdiction are overworked expressions. No doubt they are relevant in some contexts but as suggests) by Lord Reid in Anisminic Ltd. v. Foreign Cam sensation Commission and others (1969) 2 A C 147, it would be better to use these expressions in the narrow and original sense of the lack of competence of the Court or the Tribunal "to enter on the enquiry in question". Now in the instant case, there is no dispute that the learned Civil Judge, who passed the impugned order had seising of the case therefore it was for him to decide whether the case was, fixed for hearing or not on 1-12-1975. And, even if it is assumed that his decision was totally illegal, the Legislature has provided a remedy for challenging such orders, and because the Legislature has provided as remedy, the petitioner hid filed its application under rule 7 of Order IX H of the Civil Procedure Code. But as that application was dismissed on account of petitioner's gross negligence, the petitioner had failed to make out any case whatever for invoking the High Courts Revisional jurisdiction. We would also observe hero that the trial Court's order of 1-12-1975 was not a final order, and in the circumstances of the case, on this ground also, the petitioner is not entitled so the grant of special leave .The petition is devoid of merit and Is dismissed. S. A. H. Petition dismissed.