2003 PLP 1994 (YLR)

Jamila Begum and others v. Abdullah Jan and others PLD 1997 Pesh 55 and Muhammad Qasim and others v. Moujuddin and others 1995 SCMR 218 fol. Imtiaz v. Mst. Shagufta 2002 CLC 1272 ref. Tajuddin Khan for Petitioner. Muhammad Alam Khan for Respondent. Date of hearing: 30th April, 2003. The petitioner through the instant petition has questioned the order dated 17-11-2001 of the learned District Judge, Mardan whereby he dismissed the appeal tiled by the petitioner and thus upheld the order dated 22-5-2000 of the learned trial Court rejecting the application for restoration of the suit dismissed in default on 18-12-1997.

2. The learned counsel appearing on behalf of the petitioner contended that the date, on which the suit was dismissed for non-prosecution, having been given by the Reader of the Court and not by the Presiding Officer cannot be treated as a date of hearing within the contemplation of Order IX, Rule 9 of the C.P.C. and as such the application was governed by Article 181 of the Limitation Act and it- being filed within a period of 3 years from the date of knowledge of such dismissal was well within time. The learned counsel to support his contention placed reliance on the case of Jamila Begum and others v. Abdullah Jan and others (PLD 1997 Pesh 55) and Muhammad Qasim and others v. Moujuddin and others (1995 SCMR 218).

3. As against that the learned counsel appearing on behalf of the respondents by referring to the date of the impugned order and that of filing the revision petition which are 17-11-2001 and 4-3-2002 respectively contended that the petition for having been tiled by the petitioner after the period of Limitation is liable to be dismissed as the time consumed in obtaining the attested copies of the impugned' order cannot be excluded by virtue of section 12 of the Limitation Act because the word 'revision' does not find mention therein. The learned counsel to support his contention placed reliance on the case of Said Muhammad v. Sher Muhammad and 2 others (2001 MLD 1546). While controverting the arguments addressed by the learned counsel for the petitioner, the learned counsel for the respondents urged that in view of amendment in Order XVII, Rule 5 of the C.P.C. if a ministerial officer in the absence of a Presiding Officer on a date in the proceedings of a suit gives a slip to the parties specifying a date for doing needful in the suit, the Court shall conduct such proceedings on the adjourned date notwithstanding the fact it was the former rather than the latter who directed it. The learned counsel placed reliance on the case of Imtiaz v. Mst. Shagufta (2002 CLC 1272).

4. I have gone through the record and carefully considered the submissions of the learned counsel for the parties.

5. The argument that the time consumed in obtaining the attested copies of the impugned order cannot be excluded under section 12 of the Limitation Act as the word 'revision' is not mentioned therein, therefore, the revision petition for having been tiled after the expiration of 90 days is liable to be dismissed, is no doubt quite a deft and dexterous argument but I am afraid, it is not strong enough to constitute a bulwark in the way of entertaining of revision petition raising a substantial question of law and fact, if considered in the context of section 115 of the C.P.C.

6. It is true that the expression 'revision' is nowhere mentioned in section 12 of the Limitation Act and so is that of second appeal but since none of these proceedings can be entertained without the attested copies of the impugned judgments, such time which is consumed in obtaining their attested copies has to be excluded 'under section 5 of the Limitation Act. It was held in the case of Amir Hussain Shah and others v. Umra and 11 others (1986 SCMR 800) that where it was made mandatory that second appeal cannot be filed without the attested copies of the impugned judgment, the period consumed -in obtaining the copies was to be excluded under section 5 of the Limitation Act. In the case of Pir Muhammad and others v. Lal Din PLD (1964 (W.P.) 461), it was held that the period of time spent by the parties- in obtaining the copies of the judgments and decrees of the lower Courts be excluded by applying the principles of section 12 of the Limitation Act by considering an application under section 5 thereof.

7. Since in view of the, proviso to subsection (1) of section 115 of the C.P.C. a person making an application under this subsection shall, in its support, furnish copies of the pleadings, documents and order of the subordinate Court, the principles of propriety and good conscience demand that such time be excluded by applying the principles of section 12 of the Limitation Act by considering an application under section 5 thereof. Even otherwise when this Court can suo motu exercise its jurisdiction under section 115 of the C.P.C., if any of the conditions sine qua non for its exercise are in existence, it would be just academic to discuss this aspect of the case in any further detail particularly when there is no fetter of law of limitation on suo motu exercise of its jurisdiction under the aforesaid provisions of law.

8. The argument addressed on the strength of the judgment rendered in the case of Imtiaz v. Mst. Shagufta (supra) will also do little to project and prop up the case sought to be convassed by the learned counsel for the respondents at the bar firstly because the instant case is not covered by any of the provisions of Order XVII or its rules and secondly because the aforesaid provisions being different and distinct in their scope and application cannot be extended to a suit dismissed in default under the provisions of Order IX of the C.P.C., moreso when they stand fully interpreted in the case of Mst. Jamila Begum and others v Abdullah Jan and others and the case of Muhammad Qasim and others v. Moinuddin and others (supra) wherein it was held that a suit dismissed for non-prosecution on a date having been given by the Reader of the Court and not by the Presiding Officer thereof cannot be treated to be a date of hearing within the terms of. Order IX, Rule 8 of the C.P.C. and as such the period of limitation would be governed by Article 181 and not Article 163 of the Limitation Act.

9. It is the application for restoration of the suit was made by the petitioner within 3 years, it cannot be held to be barred by the Law of Limitation.

10. For the reasons discussed above, this petition is allowed, the impugned orders are set aside, the suit dismissed for non -prosecution is hereby restored and the same is sent back to the learned trial Court for proceeding therewith in accordance with law.

11. The parties are directed to appear before the Court concerned on 13-5-2003. S.A.K./820/P Petition allowed.