1989 PLP 2966 (MLD)

This is an application under section 151, C.P.C. filed by the respondent for recalling judgment dated 25-10-1987 whereby revision application was allowed by me. Mr. Sabir Hussain Qazilbash, Advocate for the respondent K.D.A. submits that he was unable to appear on that day as he was busy before other Benches. Learned counsel for the respondent has placed reliance on Federation of Pakistan v. Muhammad Hanif 1981 C L C 130 by a learned Single Judge of Lahore High Court wherein a revision application was accepted by holding that there was no justification for dismissing an appeal exclusively on the ground of default where the case of the defaulting party was likely to be prejudiced because of his absence. He also relied on Maroof Hussain Khan v. Mst. Zahida Parveen P L D 1981 SC AJ&K 123 wherein it has been held that the High Court had got wide powers to interfere with orders of subordinate Courts and pass any order to secure ends of justice, under section 151, C.P.C. I am afraid, both the decisions are distinguishable on facts, and are irrelevant on the point of law involved in the present case. On the other hand, Mr. S.H. Fani, learned counsel for the applicant submits that the judgment which is sought to be recalled has been passed on merits and, moreover, the judgment, having been passed by this Court in revision application under section 115, C.P.C. cannot be recalled. Reliance is placed by him on Messrs Ganisons Industries Ltd. Karachi v. Mirza Akhlaque Ahmed P L D 1974 Kar. 339, Mst. Majida Begum v. Sh. Zulfiqar Ali and another P L D 1987 Lah. 112 and Mst. Mussarat Jehan v. Mustafa Ali Beg 1982 C L C 205, In the first case, by Muhammad Haleem, J. (now, Chief Justice of Pakistan), both the revision application and the interlocutory application were Fixed for hearing on 1-ttlr September, 1973. When the matters were called out on that day, the counsel for the applicant in both the applications were present but the respondent and his counsel were absent. The applicant was heard in their absence and applications were allowed by the learned Judge. An application for setting aside the said order, passed ex parte, was filed. The learned Judge while dismissing the said miscellaneous application observed that:-- "Necessarily, therefore, there has to be jurisdiction before the inherent power can be invoked and not independently of it, otherwise it will be a case of usurpation of power. I would, therefore, venture to answer this question from this angle. While the Code expressly provides for setting aside the dismissal for default for an ex parte decree m suits and on the same footing such orders in appeals, there is none so far as the revision is concerned. In the case of suits and appeals, therefore, judicial power is manifest from the provision which defines the jurisdiction. It is, therefore, in aid of this jurisdiction that the judicial power exists. In the case of revisions, however, no such power can be said to exist without a provision:" On the exercise of inherent jurisdiction of the Court it was further observed that:-- "Broadly speaking, such powers are understood in the concept of maintaining the general, ancillary and incidental jurisdiction which cannot exist without jurisdiction as they are derived from laws, to which Courts owe their existence and must of necessity be exercised within the scope of jurisdiction and beyond it; hence inherent powers cannot be divorced from jurisdiction which determine these manner in which the judicial power is to be exercised." In the second case P L D 1987 Lah. 112 it was held that:- "Last but not the least is the question of maintainability of not only the present civil miscellaneous petition but also of the review application and its restoration, it is commonly accepted that a revision petition is not a remedy of right and is conversely something ex gratia. Therefore, if it is dismissed for non-prosecution, there will be no right to ask for its restoration, nor would any formal application for the purpose be competent." In the third case 1982 C L C 205 a learned Single Judge of this Court, having placed reliance on several cases of this Court mentioned in the order, observed that:- "An application for restoration of revision application would not lie in the absence of any provision in Civil Procedure Code for Setting aside the orders of dismissal of a revision application for default". The above cases cited, particularly first and the third case, above cited, by the learned counsel for the applicants support his contention. There is one more fact to be noticed in this case that the revision application in the absence of the respondent, was allowed on merits. 1n fact, I asked the learned counsel for the respondent to show if Article 168 of the Limitation Act was not attracted to the facts of the present case, which he failed. Since, I have disposed of the revision application on merits, the application moved by the learned counsel for the respondent is rejected. Besides having placed reliance on P L D 1974 Kar. 339 and 1982 C L C 205, the above Misc. A application is not maintainable. For the reasons aforesaid, the application is dismissed. H.B.T./B-120/K