P L D 1955 Baluchistan 25 (PLP)

Civil Procedure Code (V of 1908), O. IX, r. 9 read with S. 151-Limitation-Application for restoration dismissed for default-Fresh application for restoration of suit may be made provided within time from date of dismissal of suit-Limitation of 30 days cannot be extended under S.

151. Where a suit is dismissed for default and an application for restoration is also dismissed in default, the applicant is not debarred from making a fresh application for restoration of the suit provided it is made within the period prescribed. In view of the substantive law of limitation no Court can invoke the provisions of section 151, Civil P. C., to extend the time even by a single day. ORDER. GHAZANFAR HUSAIN, A. J. C.-This is a revision petition against the order, dated 14th February, 1955, passed by Syed Muhammad Ali Shah, Senior Sub-Judge in. Baluchistan and judge, Small Cause Court, Quaetta , whereby under section 151, Civil P. C., an application for restoring the suit to file was accepted and suit was restored on payment of Rs. 25 costs. The respondent brought a small cause suit on 30th October, 1953, for the recovery of Rs. 496 against the defendant. After some of the evidence was recorded, the plaintiff failed to appear on 5th April, 1954, and the suit was dismissed in default. On the same date, an application for restoration of the suit was made by the plaintiff, notice of which was issued to the other party for 6th May, 1954. On that date, the plaintiff was again absent when the defendant's Counsel was present to contest the application. The application for restoring the suit was dismissed in default on that date. On the same date, soon after the dismissal of the application, the defendant again put in the application in dispute asking for restoration of the suit and stating that his sister had been taken ill and he had gone to fetch medicine for her. The learned Senior Sub-Judge has mentioned in his judgment that Article 163 of the Limitation Act prescribes a period of 30 days and that the plaintiff is not debarred from making a fresh application for restoration of the suit provided it is made within the period of 30 days as laid down by Article 163, i.e., within 30 days from the date of order dismissing the suit for default. This view is supported by Petition No. 34 of 1947 decided by the learned Judicial Commissioner of this Province, but he has invoked his inherent powers under section 151, Civil P. C., remarking that applications of this nature can be admitted after period of limitation prescribed by Article 163 in the ends of justice. The learned Counsel for the petitioner has argued that in view of substantive law of limitation, no Court can invoke the provisions of section 151, Civil P. C., even if the application is time-barred for a day. This is an established law that where a suit is dismissed for default and an application for restoration is also dismissed in default, the .A applicant is not debarred from making a fresh application for restoration of the suit provided it is made within the period prescribed by the aforesaid article. Section 5 has not been made applicable to such applications and the learned Senior Sub-Judge has rightly held so on this point. As regards the inherent power of the Court under section 151, Civil P. C., there are numerous rulings supporting the view that a Court has no inherent power to extend the period or limitation under Article

163. It is not open to a Court to ignore the procedure laid down for its guidance and grant reliefs when it thinks such a relief should be granted without following the procedure laid down for its conduct. If the provisions of section 151 are given the extended interpretation which some Courts are prepared to give them, the Courts may overlook the rest of the Procedure Code whenever they consider that the ends of justice do require that a certain order should be passed. Section 151 enables a Court to make such orders as may be necessary, for the ends of justice and to prevent the abuse of the process of the Court. The law of limitation works hardship upon persons who have legitimate claims against their oppon?ents, but this law has been enacted by the legislature and it would not be right for the Court to overlook the law of limitation on the ground that the defence on the ground of limitation is very hard, when the law of limitation clearly prescribes and lays down a certain procedure, the mere fact that the Law of Limitation steps in and prevents the party from claiming relief under the procedure is not sufficient justification for the Court to grant a relief under section 151, Civil P. C. However hard the Law of Limitation in this case may be, specially when it is time-barred only by a day, the petitioner is entitled .to the relief claimed and 1, therefore, with much regret allow this application and set aside the order passed by the lower Court. The application filed in the lower Court is clearly time-barred. A. H. ?????????????????????????????????????????????????????????????????????????????????????? Restoration order set aside.