P L D 1961 (W (PLP)

S. A. Hassan & Co. for Respondent (called absent). Date of hearing : 16th February 1961. This is an appeal against the order of Mr. Mehdiali Siddiki, passed by him on 20th March 1959, in suit No. 487/57 in the case Syed Shah v. Muhammad Yakoob, setting aside his order, passed on 27th October 1958, whereby he had dismissed the suit filed by the respondent, under Order XVII, rule 3, C. P. C. The plaintiff‑respondent filed a suit against the appellant for the recovery of Rs. 6,270. The suit came up for hearing on 29‑9‑58 when it was adjourned to 22‑10‑58. On 22nd when neither the respondent nor his Advocate was present, the learned Judge closed the plaintiff's case and dismissed the suit under say Order XVII, rule 3, C. P. C. Thereafter, on 22‑1‑59, the plaintiff‑respondent filed an application under Order IX, rule 9, C. P. C., praying that the ex parte order dismissing the suit be set aside and the suit be restored. The grounds mentioned in the application were these‑ (1) That the last, date in the suit was 29th September 1958, on which date it was challaned for 22‑12‑58 for evidence of the parties. (2) That the counsel of the respondent were present on 29‑9‑58 when date was given by the Bench Clerk as 22‑12‑58 which was accordingly noted down in the cause file and the diary. , (3) That on the 22nd December 1958, the respondent and his counsel together with witnesses went to the Court but found that the suit had been dismissed for non-appearance. The learned counsel for the appellant having received notice . of this application, filed a counter‑affidavit denying the allegations and asserting that the application under Order. IX, rule 9 was not maintainable in law and further that it was time‑barred. The learned Judge held that the application under Order IX, rule 9 was barred by limitation but in spite of this finding he set aside the order of dismissal by exercising his powers of review. It is against this order by at the present appeal has been filed. I have heard the learned counsel for the applicant. Neither the respondent nor his counsel was present on the date of hearing. After reading the order and hearing the learned counsel for the applicant, I have come to the conclusion that the order appealed against is not maintainable. Having held that Order IX, rule 9, was not applicable to an order passed under Order XVII, rule 3, C. P. C. it was not open to the learned Judge to set aside the order of dismissal by these exercise of his powers of review under Order XLVII, rule 1. Order XLVII, rule 1, stipulates that there should be an application made by the party aggrieved to review the order. In this case C there was no application made by the respondent under Order XLVII, rule 1, praying that the order of dismissal be reviewed. The learned Judge was therefore not called upon to exercise his powers under Order, XLVII, rule 1. It is also clear that application under Order IX, rule 9, besides being untenable was time barred. Article 163 of the Limitation Act which is applicable to an. application by the plaintiff for an order to set aside a dismissal for default of appearance etc. provides that it should be filed within 30 days of the day of the dismissal. The suit was dismissed, as said above on 22‑10‑58, and the application under Order IX, rule 9, was filed on 22‑1‑59. It was obviously a time barred application. The learned Judge has ignored the provision of Limitation Act by condoning the delay although there was no application for condoning the same. In fact, as the learned counsel for the applicant contends, that not only was there no application under Limitation Act for condoning the delay, there was no discussion on the point during the course of arguments. For all these reasons I set aside the order passed by the learned Sub‑Judge, setting aside his order of dismissal and restor ing the suit, and thus allow the appeal with costs. S. B. Appeal allowed.