1996 PLP 1545 (CLC)

period of limitation is provided apply accrues." elsewhere in this Schedule or by section 48 of the Code of Civil Procedure, 1908 (V of 1908). From the very wording of the Article it becomes clear that the operation of this Article is not limited to applications made under the Code of Civil Procedure. Since the application for reconstruction of record is moved under the Code of Civil Procedure and the Civil Court whether appellate or original has inherent A jurisdiction to reconstruct the record under the Code of Civil Procedure. Therefore, in our considered view, the relevant Article applicable would be Article 181 of the Limitation Act which provides a period of three years for moving the application for re‑construction of record when the right to apply accrues. In a case reported as 'K.S. Abdul Latif v. The Republic of Pakistan and 2 others' (PLD 1971 Quetta 77) the precise facts were that a case was transferred to the District Judge, Quetta on 2nd of June, 1966. This was long after the framing of issues and on that date the learned Judge ordered the issuance of summons to the Advocates of the parties of 27th June, 1966, with a further order that the appellant should be present on 27th June, 1966, for his evidence. The Advocate for the appellant was present but the appellant was absent. The learned District Judge observed that as the appellant had deliberately remained absent, he had closed the appellant's side. Then after pointing out that the burden of all the issues was on the appellant, the learned District Judge observed: "The result is that the. suit stands dismissed with costs". Aggrieved by this order the appellant filed an application under Order 1X, rule, 9 read with section 151, C.P.C. for the restoration of his suit which came up for hearing before another learned District Judge. By his order dated 15‑11‑1966, the learned District Judge, who heard this restoration application, dismissed it in limine on the short ground that, as the restoration application had been filed after more than 30 days from the date of the dismissal of the suit, it was time -barred. The appellant, therein, filed an appeal in the High Court and it was observed by the High Court that:‑‑ "The result of this discussion is that, as the appellant's case does not fall under Order IX, rule 9, C.P.C., he is entitled to invoke the inherent power of the Court under section 151, C.P.C., provided he makes out a case for the exercise of that jurisdiction. " It was observed that 'such an application does not fall under Article 163 but that it can only fall under the residuary Article 181 which provides a period of limitation of three years; therefore, the restoration application was within time, and the learned District Judge erred in dismissing it as time‑barred'. In a case reported as .'The West Pakistan Water and Power Development Authority, Lahore v. Messrs Omar Sons Ltd.' (PLD 1967 Lah. 398), the precise facts were that an order of the Trial Court appointing arbitrator under section 8 of the Arbitration Act was challenged in appeal before the High Court on the ground that the application was hit by the limitation and that the Court could not entertain the same. The High ~ Court treating the application as revision petition heard it and observed at page 403 that, "There is nothing in Article 181 itself, which curtails the apparent generality of the words in column

1. It applies to every application for which no limitation is prescribed elsewhere in the Schedule. " It was opined by Mr. Justice Muhammad Gul, at page 404:‑‑ "Thus, it . is no longer possible to say that the Third Division of Schedule I is confined to applications under the Code of Civil Procedure or to apply the ejusdem generis rule only. Therefore, I accept the proposition that residuary Article 181 of the Limitation Act applies to the instant Supreme Court's judgment in AIR 1953 SC 98." In case reported as ' M. Imam‑ud‑Din Janjua v. The Thal Development Authority through the Chairman, T.D.A., Jauharabad' (PLD 1972 SC 123), while dealing with the matter arising out of an arbitration agreement, it was observed by Hamoodur Rehman, CJ who spoke for the Court, at page 130 in the following manner: "Having examined these decisions with care, we, too, have come to the conclusion that, after the incorporation of Articles 158 and 178 in the First Schedule to the Limitation Act, which makes specific provision for applications under the Arbitration Act, 1940 it is no longer possible to say that the Articles contained in the Third Division of the First Schedule to the Limitation Act apply only to applications under the Code of Civil Procedure, because, all the other Articles contained in this Division apply to such applications. With the incorporation of Articles 158 and 178, that reason no longer holds good, and therefore, the scope of Article 181, which is in the nature of a residuary Article, must necessarily be extended to all kinds of applications for which no specific period of limitation has been provided for either in the .First Schedule to the Limitation Act or in any other Statute. To hold otherwise would lead to the anomalous result that for applications which have not been expressly provided for in the Third Division of the First Schedule to the Limitation Act there will be no period of Limitation at all. This could not have been the intention of the Legislature. " The above‑cited authorities show that if the application of the construction of record is not an application under the Code of Civil Procedure even then the relevant Article of Limitation Act applicable would be Article

181. Identical view has been expressed by AJK High Court in a case reported as Mian Omar Din v. Government of Azad Jammu and Kashmir' (PLD 1968 Azad J&K 21) wherein Muhammad Sharif. Actg. C.J. while discussing the authority of Indian Supreme Court (AIR 1953 SC (Ind.) 98) spoke on behalf of the Full Bench at page 25 in the following manner:‑‑ "Their Lordships may feel some embarrassment in changing the long standing position of the Judge‑made law in India but we feel that in face of the amendment made in Articles 158 and 178 of the Limitation Act by the Amendment Act of 1940 there should be no hesitation in holding that now the residuary Article 181, Limitation Act, shall apply not only to application under the Code of Civil Procedure for which no limitation has been prescribed elsewhere but also to such applications under the Arbitration Act for which no period of limitation has been prescribed elsewhere; either in the Limitation Act or in the Arbitration Act itself. " From the survey of the case‑law cited above it becomes clear like crystal that the application for reconstruction of record whether the same was under the Code of Civil Procedure or outside the ambit of Civil Procedure Code in both the eventualities the relevant Article of Limitation Act applicable would be Article 181 which as said earlier provides a period of three years. In our view the High Court had no jurisdictional competence to fix a period of limitation of 120 days for filing the applications for reconstruction of record based on mere assumptions. The learned counsel for the respondents could not g meet the arguments raised by the learned counsel for the appellants. In this view of the matter we have reached the conclusion that the Article of Limitation Act applicable for filing the application for reconstruction of record would be Article

181. The application filed by the appellant in the High Court was well within time. The upshot of the above discussion is that the appeal is accepted and the impugned judgment recorded by the High Court is set aside and the case is remanded to the High Court with the direction that it shall restore the application filed by the appellant for reconstruction of record and proceed according to law with no order as to the costs. A.A./ 113/SC (AJ&K) Case remanded.