P L D 1969 Karachi 183 (PLP)

Such was the intention of the Legislature is also clarified by the recent amendment of the Act. By amendment of 1962, section 15 has been replaced completely, and the present sub section 15 (1) is as follows: " Any party aggrieved by an order passed by a Controller may within 30 days from the date of such order, prefer an appeal in writing to the District Judge, Karachi or to such other judicial officer as maybe empowered by the Provincial Government to hear such appeals." For the reasons stated above, we are of the opinion that the word "appeal" occurring in section 12 (2) should be construed in a broad sense so as to include a revision under the Karachi Rent Restriction Act, 1953. Upon this language of section 15 of the Act of 1953, which contained the revisional powers of the Chief Judge, Small Causes Court, the Supreme Court came to the conclusion that it had all the characteristics of an appeal and therefore the word "appeal" occurring in section 12 (2) of the Limitation Act should be construed in a broad sense so as to include the said revision. In that view of the matter, the appellants were allowed all time spent in obtaining certified copies of the order of the Rent Controller, and in the result it was held that their Revision Applications filed before the Chief Judge, Small Causes Court were well within time.

9. Furthermore, in coming to that conclusion the Supreme Court was clearly influenced by the fact that the Revision Appli cations in question (having been filed under the provisions of local law) fell within the purview of section 12 (2) of the Limita tion Act because of the application of section 29 (2) (a) of that Act to such applications. The relevant observations read: "(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law‑ (a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law." It would be seen that the judgment of the Supreme Court was grounded upon two reasons: In the first place, upon the language of section 15 of the Act of 1953, the Revision Application filed before the Chief Judge, Small Causes Court was equated to an appeal which in result automatically attracted the provisions of section 32 (2) of !lie Limitation Act, and in the second place because of section 29(2) (a) of the Limitation Act the provisions of section 12 (2) of that Act became applicable to the said Revision Application, which admittedly was the creature of a local law, namely, the Karachi Rent Restriction Act, 1953. In that view of the matter, reliance upon the said judgment appeared to be wholly misconceived for the reason that the present application was filed neither under a local law nor could the provisions of Order IX, rule 13, C. P. C. be equated to an "appeal" so as to entitle the applicant to the benefit of section 12 (2) of the Limita tion Act.

10. The facts, as they appeared, from the judgment of the Privy Council were these: From a decree, passed on its original side, a Letters Patent Appeal was filed in the High Court of Rangoon, beyond the prescribed period of twenty days, under Schedule 1, Article 151 of the Limitation Act. On an objection having been taken that the appeal was time‑barred reliance was placed upon section 12(2) of the Limitation Act that the time spent by the appellant in obtaining the copies of judgment and decree was to be excluded notwithstanding the rule of the High Court that a memorandum of appeal against a decree of the High Court might be presented without a copy of the decree. That contention was repelled on the ground that since according to the rules of High Court it was unnecessary to file a copy of the decree, the time spent in obtaining its copy could not be allowed under section 12 (2) of the Limitation Act. On a certificate having been granted by the High Court, the matter was taken up in appeal to the Privy Council who after reviewing the conflicting case‑law from the various High Courts of India allowed the appeal with the following observations: "Their Lordships have now to return to the grammatical construction of the Act, and they find plain words directing, that the time requisite for obtaining the two documents is to be excluded from computation. Section 12 makes no reference to the Code of Civil Procedure or to any other Act. It does not say why the time is to be excluded, but simply enacts it as a positive direction. If, indeed, it could be shown that in some particular class of cases there could be no object in obtaining the two documents, an argument might be offered that no time could be requisite for obtaining something not requisite. But this is not so. The decree may be complicated, and it may be open to draw it up in two different ways, and the practitioner, may well want to see its form before attacking it by his memorandum of appeal. As to the judgment, no doubt when the case does not come from up‑country, the practitioner will have heard it delivered, but he may not carry all the points of a long judgment in his memory, and as Sir John Edge says, the Legislature may not wish him to hurry to make a decision till he has well considered it. There is force no doubt in the observation made in the High Court that the elimination of the requirement to obtain copies of the documents was part of an effort to combat the dilatori ness of some Indian practitioners ; and their Lordships would be unwilling to discourage any such effort. All, however, that can be done as the law stands, is for the High Courts to be strict in applying the provision of exclusion. The word "requisite" is a strong word ; it may be regarded as meaning something more than the word "required". It means "properly required" and it throws upon the pleader or counsel for the appellant the necessity of showing that no part of the delay beyond the prescribed period is due to his default." It would be seen that upon the peculiar facts of that case the benefit of section 12 (2) of the Limitation Act was allowed to the appellant but their Lordships clearly observed that :‑ "The word "requisite" is a strong word; it may be regarded as meaning something more than the word "required", it means "properly required" and it throws upon the pleader or counsel for the appellants the necessity of showing that no part of the delay beyond the prescribed period is due to his default."

11. In order to see whether the certified copies of the various documents, for which the applicant spent time (between 13‑9‑1966 to 30‑9‑1966) were "requisite", i.e. to say "properly required", the provisions of Order IX, rule 13 may be considered which reads : "(13) In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding, with the suit." It would be seen that an application is made for the setting aside of an ex parte decree, all that the Court was required to do was to satisfy itself if summons upon the applicant was not duly served or that he was prevented by sufficient cause from appearing in Court when the suit was called for hearing. In fact the merits of the decree were not even to be considered when the Court is seized of such an application, because no sooner the Court comes to the conclusion that summons upon the A applicant were not duly served or that he was prevented by sufficient cause from appearing in Court, the decree has to be set aside and thereafter the matter would proceed in the normal course; the applicant being at liberty to defend the suit on merits. That being the requirements of Order IX, rule 13, C. P. C. could it be said that the time spent by the applicant in obtaining the certified copies of various documents was "requisite" so as to entitle him to its exclusion under section 12 (2) of the Limitation Act ?

12. The case of the applicant was that the newspaper "Morning News", in which the summons were published, had no‑circulation in his home town, and as such he had no notice of the proceedings. In other words he was prevented by a sufficient cause to appear in Court when the suit was finally called for hearing and decreed ex parte. Admittedly, the applicant had come to know of the passing of the decree on 9th September 1966, but took no steps in the matter until 13th September 1966, when he filed an application for the certified copies of various documents. However, it is not understandable as to why he required these copies for the purpose of present application for the consideration of which all that the Court was required to do was to be satisfied that summons upon the applicant had not been served or that he had been prevented by a sufficient cause to appear in Court when the case came up for hearing. For that purpose the inquiry was to be of a limited nature inasmuch as if the applicant could show that the newspaper "Morning News" in which the summons were published, had no circula tion in his home town, the Court would have set aside the ex parte decree. Consequently, what the applicant, in fact, required was just to inspect the case file to ensure the manner in which the service of summons had been affected upon him and no sooner he had known that it was by publication in the news paper in question he should have moved the present application for setting aside of the ex parte decree on the ground that he had not been duly served. For all these reasons, I am of the view that the time, which the applicant spent in obtaining the certified copies, was not "requisite" and the same could not be allowed under section 12 (2) of the Limitation Act. In any case, as observed by their Lordships of the Privy Council, it was the duty of the applicant to show that no part of the delay, beyond the prescribed period of limitation, was due to his own fault, but in the instant case he failed to satisfy the Court as to why the present application could not be filed without certified copies.

13. The contention of the learned counsel (which was noted in the earlier part of this order) that since the purpose of present application was to seek the review of ex parte decree it should be deemed to be "an application for review" within the meaning of section 12 (2) of the Limitation Act and consequently all time spent by the applicant in obtaining certified copies of various documents should be excluded, may now b,‑ mentioned. It will have been noticed that the said contention was already sufficiently discussed and repelled in light of the judgment of the Privy Council, but this time Mr. Khalid M. Ishaq in an effort to seek support for his argument relied upon the provisions of sections 113 and 114, C. P. C., which may be reproduced. "(113) Subject to such conditions and limitations as may be prescribed . . . . (114) Subject as aforesaid, any person considering himself aggrieved‑ (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed by this Code, or (c) by a decision on a reference from a Court of Small Causes; may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit." It may be noted that the operation of section 114, C. P. C., has been subjected to "such conditions and limitations as may be prescribed". According to me, these conditions and limitations in so far as the review of a decree was concerned, are prescribed in Order XLVII, C. P. C., and therefore no decree could be reviewed without complying with those conditions. For that conclusion, I have relied upon the plain language of section 114, C. P. C., which appeared to be the source from which the review jurisdiction of Court is derived under C. P. C. but the manner of the exercise of that jurisdiction (as contemplated by the section itself) was prescribed in Order XLVH, C. P. C. In that view of the matter, the review jurisdiction as visualised by section 114, C. P. C. must be traced to Order XLVII, C. P. C., which contains the prescribed conditions and limitations in terms of the require ment of that section. Therefore, the contention of the learned counsel that review jurisdiction under section 114, C. P. C., must be deemed to be an independent jurisdiction was devoid of force.

14. Furthermore, if the contention of the learned counsel was accepted it would lead to an absurd result in that while in given case the power of review of an order or decree under Order XLVII, C. P. C. may not be properly invokable, yet the same object could be achieved by resorting to the provisions of section 114, C. P. C., a result which, in my opinion, could not have been intended by the Legislature. It is needless to say that if any such construction was allowed it would necessarily tantamount to disregarding the words "subject to such conditions and limitations as may be prescribed" to which section 114, C. P. C., has been subjected, with the result that the provisions of Order XLVII, would be rendered wholly redun dant. Admittedly this course was not permissible while construing a statute, and consequently the contention of the learned counsel must be repelled.

15. The contention of the learned counsel might have had force if it was shown that no conditions and limitations as visualised by section 114, C. P. C. had been prescribed, but the fact that they have been so prescribed in Order XLVII, C. P. C. must lead to the only conclusion that an order, a judgment or a decree could not be reviewed under section 114, C. P. C. without complying with the provisions of Order XLVII, C. P. C.

16. Assuming for the sake of argument that the said contention of the learned counsel was tenable even then the interpretation which he attempted to place upon section 114, C. P. C. could not be accepted for the simple reason that for the setting aside of ex parte decree, a special provision has been made in Order IX, rule 13, C. P. C. which alone must be invoked for that purpose, as against any other provision of the Code. It is true that when an application is filed under that provision the Court is called upon to review an ex parte decree in some measure, (i.e. to satisfy itself whether the summons upon the defendant were not duly served), but that could hardly be called "review" within the meaning of section 114, C. P. C. read with Order XLVII, C. P. C. In. point of fact, the reconsideration of every order or judgment, no matter in how restricted a sense, amounts to "review" in the general sense, but it could no be equated to "review" in the technical sense as contemplated by the aforesaid provisions of the Code of Civil Procedure.

17. In view of these conclusions there was no force in this application, which is dismissed with costs. A. E. Application dismissed.