P L D 1983 Karachi 507 (PLP)

The above review application has been filed by petitioner above-named, in respect or order dated 5th September, 1982 of this Courts, by which the above petition was dismissed in limine by me. The main grounds oil the basis of which the above review application has been filed are, that Annexures A to J attached with the review application in question were not brought to the notice of this Court by the learned Advocate for the petitioner, at the time; when the above petition was being heard for Katcha Peshi and these annexures' were discovered for first time by the petitioners present Advocate on 20th September, 1982 when he inspected the filed of Suit No. 132/75 and, therefore, these annexures may be taken into consideration and the order dated 5-9-1962, by which the above petition was dismissed in limine be set aside and the above petition be admitted for regular hearing and disposed of on merits. In support of the above application the learned Advocate for the petitioner submitted as under: (a) That Article 181. of the Limitation Act applied to petitioner's application under Order IX, rule 13, C. P. C. and not Article 164 of the Limitation Act as held by both the learned lower Courts. In support of these contentions the learned Advocate for the petitioner relied upon cases reported in P L D 1975 S C 678, P L D 1964 S C 97, P L D 1981 S C 21, P L D 1975 Lab. 942, P L D 1975 Quetta 42. (b) That no service was affected on the petitioner in respect of Suit No. 132/75 as required by law and consequently the orders allowing substituted service, on the application of the respondent was void and not maintainable, as the learned trial Court did not comply with rules 10-A, 17, 1:9 of Order V, and rule 22 of Order VII, before granting respondent' s application for substituted service, by publication and as such the said order was coram non judice. (c) That the time available for the petitioner to appear in response to the public notice was not, sufficient, as the said notice was published in paper on 16th September, 1975 and the petitioner was directed to appear on 20th September, 1975 and on the said date ex parte decree was passed against the applicant. (d) That ex parte decree in question is not supported by any evidence on record and as such it is in violation of Order IX. rule 6(1-A). C. P. C. In support of the above contentions the learned Advocate for the petitioner also relied upon cases reported in P L D 1978 Kar. 818, P L D 1975 Azad J & K 114, P L D 1980 Lab. 181 as well as on cases reported in P L D 1971 Kar. 118, P L D 1964 S C 538 and P L D 1976 Lab. 1521. The learned Advocate appearing for respondent No. I on the other hand submitted, that the above review application was not maintainable, as the Annexures "A to J" could have been available to the petitioner at the time when the above petition was filed and if the petitioner was negligent in not filing these annexures, this would not give him right to file the above review petition. The learned Advocate for the respondent further submitted, that the above review application is against the pleadings and facts as discolsed by the petitioner in the lower Courts as well as in this Court, in above revision application and she cannot change her stand in review application and introduce new grounds, which she could have taken at the time of filing of above main. petition and consequently the above review application is not in conformity with the provisions of section 114, C. P. C. read with Order XLVII, rule 1, C. P. C. as record of the learned lower Court was available and the petitioner and her Advocate had full opportunity, if they so desired to examine the same, before filing of the above main petition. The petitioner by blaming her previous Advocate, who filed the above main petition cannot bring her review petition, within the four corners of the law in question. Even on merits the learned Advocate for the respondent submitted, that the petitioner has no case, as petitioner's application under Order IX, rule 13, C. P. C. was governed by article 164 of the Limitation Act and not by Article 181 of the Limitation Act and as such her said application was hopelessly time-barred and was rightly rejected by both the learned lower Courts. In support of this contention as well as contention that provisions of rule 10-A, Order V are not mandatory, the learned Advocate relied upon cases reported in P L D 1975 Azad J & K 114, P L D 1978 Kar. 818, P L D 1980 Lab. 181, 1970 S C M R 466, A I R 1930 Pesh. 146 and A I R 1973 Pat.

272. I have carefully considered the above submissions made by .the learned Advocates before me and have gone through the documents filed on record as well as R & P of the learned trial Courts and the cases cited by both the learned Advocates before me. The contention of the learned Advocate for the respondent No. 1, that the petitioner has made out no grounds for review under Order XLVII, rule 1. read with section 114, C. P. C. has great force. The contention of the learned Advocate for the petitioner, that Annexures "A to J" were only discovered by him after my order dated 5-9-1982 has no force. In my opinion these annexures could have been available to the petitioner, if due diligence was exercised and could have been produced alongwith the above main petition. The contention of the learned Advocate for the petitioner, that it was the negligence of the original Advocate of the petitioner and as such the said annexures were not produced earlier, in my opinion would not give the ground for review to the petitioner, in respect of my order dated 5-9-1982. In addition to the above conclusions of mine, in my opinion Article 164 of the Limitation Act was applicable to petitioner's application under Order IX, rule 13, C. P. C. and. not Article 181, C. P. C. as alleged by the learned Advocate for .the petitioner and such petitioner's said application was hopelessly time-barred from the date of the knowledge of the ex parte decree, as already held by me in my order dated 5-9-1982 and consequently rightly dismissed on the said ground by both the learned lower Courts, Therefore, I am of the opinion, that the above review application is not maintainable, as applicant has failed to make out a ground for review of my order dated 5-9-1982, in accordance with the provisions of section 11.4, C. P. C. read with section XLVII, rule 1, C. P. C. and consequently dismiss the above review application. M. z, M,?????????? Application dismissed.