1990 PLP 1057 (CLC)

This is an application under Order 47, Rule 1 read with Section 151, C.P.C. praying for review of the order dated 20‑3‑1989 passed by my learned brother Mr. Ahmed Ali U. Oureshi, J. (as he then Nvas) dismissing the plaintiffs suit fear non‑compliance of an order under Order 11, Rule 12, C.P.C. The facts giving rise to this application are that an application under Order 11, Rule 12, C.P.C. was made by defendant No.l praying that the plaintiff be directed to make discovery on oath of all the documents, which are or have been in his possession or power relating to matter in question. Consequently the Additional Registrar passed an order on 14‑10‑1987 calling upon the plaintiff to file affidavit of documents within 3 weeks. On 21‑12‑1987 the plaintiff made an application for extension of time by 4 weeks to enable him to file the requisite affidavit of documents which was granted by the Additional Registrar. No such affidavit was filed. Hence an application under Order 11, Rule 21, C.P.C. was filed by defendant No.l. praying for dismissal of the plaintiffs suit as he has failed to comply with the order referred to above for discovery of documents. On 17‑1‑1988 Mr. Rao M. Shakir Naqshbandi, Advocate for the plaintiff undertook to file the documents within three days. In view of such undertaking the application of defendant No.l was dismissed as not pressed. The case came up for hearing on 20‑3‑1988 for further orders as no affidavit of document was filed by the plaintiff. Following order was passed by my learned brother Mr. Ahmad Ali U. Oureshi, J. "None present for the plaintiff. Defendant Muhammad Munir Khan present. On 14‑10‑1987 the plaintiff was directed to file affidavit of documents within three weeks. He failed to file the documents or affidavit. On 17‑1‑1988 learned counsel for plaintiff undertook to file documents within three days, but he has failed to file the documents. As such the suit is dismissed for non‑prosecution under Order XI, Rule 21, C.P.C." Mr. Muhammad Asar Hussain Advocate for defendant No.l and Mr. Sabir Hussain Kizilbash, Advocate for defendant No.2 have raised a preliminary objection to the maintainability of this application. It is contended and rightly so that the dismissal of the suit for non‑prosecution on account of non‑compliance of an order for discovery cannot be set aside and the suit cannot be restored under Order 9, Rule 13, C.P.C. Reliance in this connection may be placed in the case of Moung Khant Gyi v. Ma Thet Hnin and others reported in AIR 1925 Rangoon

218. The only course open to the plaintiff is by way of filing an appeal or by way of making an application for review of this order if he is in time. It was admitted by both of them that Article 162 of the Limitation Act applied to this case as it was for review of a judgment of the High Court in exercise of its original jurisdiction. Such application was to be presented within 12 days from the date of decree or order. This application was presented on 24‑9‑1989 i.e. after one year one month and four days. Hence the application was hopelessly time‑barred. Mr. Rao M. Saakir Naqshbandi pointed out that he had presented in office the affidavit of document denying that he had no other document in his possession or power on 20‑1‑1989. The office had not filed this affidavit in record of the suit and had not brought it to the notice of the Court and therefore the order dismissing the suit for not filing the affidavit of document was wrongly passed by the Court due to inadvertence and oversight. He therefore submitted that where an order was erroneously passed by Court it was the duty of the Court to recall, review or set aside the same in exercise of its inherent power under Section 151, C.P.C. and no period for limitation was to apply to such an order. His second leg of arguments was that he was not aware of the passing of the order dated 20‑3‑1988 as he was absent on that day. He could not notice the case in the cause list and also that he remained confined to bed during the third week of March, 1988 due to his illness. Hence he came to know of this order for the first time on 10‑9‑1989 from the Advocate of defendant No.l: He has made such statement in his own affidavit in para. 8 thereof and the plaintiff's affidavit in para.

6. Hence the period of limitation would run from the date of his knowledge i.e. 10‑9‑1989. So far as the contention, that the period of limitation would run when the plaintiff became aware of the order dismissing the suit, is concerned the same g does not hold any water. Article 162 of the Limitation Act makes the date of the passing of the order as the starting point of limitation and not the date of knowledge of the same by the party. Moreover it was his duty to have explained the delay of each and every day after the period of limitation had started running C against him even if Section 5 of Limitation Act applied to it. He has nowhere stated that he remained confined to bed for full one year after the passing of this order, nor he made an application under Section 5 of Limitation Act. So far as his other contention, that the order was passed illegally or due to oversight or ignorance of the facts, is concerned the same also does not appear to be correct. Admittedly before his having presented the affidavit in the office of the Court he had not supplied the copy thereof to the Advocate of the other side. Rule 75(3) of Sindh Chief Court Rules (O.S) makes it incumbent upon a party to serve on the other side or his Advocate copy of affidavit before filing the same in the Court and obtain receipt for the same. Sub‑rule (4) provides that no affidavit shall be used at the hearing unless copy thereof is served in time on the other D side. Sub‑rule (5) of Rule 75 provides that where an affidavit is not filed and served as aforesaid i.e. copy thereof served on the other side before filing the same, it shall not be filed separately in record of the case until leave of the Court has been obtained under sub‑rule (4). Hence the office acted in accordance with sub‑rule (4) of Sindh Chief Court Rules (O.S) in not filing the affidavit with the application and in not bringing the affidavit to the notice of the Presiding Judge and did not commit any mistake or irregularity. Hence the order dated 20‑3‑1988 cannot be treated as an illegal or irregular order or an order passed by oversight. In such circumstances it is quite clear that the review application is time barred. The case also does not call for exercise of inherent powers. Reliance is placed on Waseem Construction Company v. Province of Sindh reported in 1987 CLC 612 where it was held that inherent powers of Court could not be resorted to after order sought to be reviewed had attained finality for failure of party to file any appeal against it. The present application is neither maintainable under Order 9, Rule 13, C.P.C. nor under Section 151, C.P.C. nor under Order 47, Rule 1, C.P.C. Similar view has been taken in Muhammad Suleman v. Allied Bank of Pakistan Ltd. reported in 1987 CLC 1338 (D.B. case of Lahore High Court) where it was held that inherent powers of High Court can be exercised only where no specific provision of law is available. I, therefore, does not find any merit in this application and dismiss the same. A.A./M‑1039/K Application dismissed