P L D 1964 (W (PLP)

"It appears to me that in the present case when the notice under section 87 of the Karachi Port Trust Act was served on the respondent, there was a subsisting cause of action, namely, the refusal embodied in the resolution of the Board of trustees dated the 15th of April 1959. With the passage of time, that cause of action was added to by the fact that the salary for the leave period in dispute became due to the plaintiff‑petitioner. In other words, it is not a case where there was no subsisting cause of action on the date of the notice, namely, 15‑12‑

59. It is only a case where the cause of action was added to subse quently. Such being the case, in my view the notice served on 15‑12‑59 was not invalid and, therefore, the learned Chief Judge of the Small Causes Court was not justified in dismissing the petitioner's suit." 3 In the present application for review of the judgment, it is submitted by Mr. Ajmal Mian, the learned counsel for the applicant, that while coming to the conclusion stated above no regard was paid to the second part of section 87 of the Karachi Port Trust Act which lays down that no suit shall be instituted after expiry of six months from the accrual of the cause of action. It is contended by the learned counsel that if the cause of action accrued to the plaintiff on the 15th of April 1959, as held by this Court, then the suit could have been filed only before the 15th of October 1959, after which date no suit could be instituted with the result that the cause of action ceased to exist. That being the case, it is argued, that the notice served on the 15th of December 1959 would become invalid for the reason that there was no subsisting cause of action on that day.

4. Mr. Irshad Ali, the learned counsel for the plaintiff, who is now respondent in the present review application, has raised a preliminary objection that this application does not lie for the reason that the point now raised on behalf of the defendant -respondent should have been raised at the regular hearing of the revision application. As authority for this proposition the learned counsel has referred me to Sabapathi v. Subraya and Ramanadha ((1878)I L R 2 Mad. 58) in which it was observed that "before going into the first ground of review, it is right to observe that when the case came before the Court of Appeal the first ground of review was not opened, though counsel car Vakil for the eighth defendant appeared in support oh the appeal. The question was apparently abandoned, and, if upon no other ground we would think that, upon that ground alone, the review asked for should not be granted." Mr. Irshad Ali also referred to a decision of the Judicial Committee cited as Chhajju Ram v. Neki and others (I L R 3 Lah. 127) in which the scope of review permitted under Order XLVII, rule 1, C. P. C. was exhaustively examined. Their Lordships observed "Order XLVII, rule I must be read as in itself definitive of the limits within which review of a decree or order is now permitted, and words `any other sufficient reason' mean the reason sufficient on grounds at best analogous to those specified immediately previously. A Court hearing an application for a review of the decree made on appeal has therefore, no power to order a review upon the ground that the decision was wrong on the merits."

5. On the other hand, Mr. Ajmal Mian, the learned counsel for the present applicant before me, has placed reliance on Kamta Chaudhry v, Lal Chandra Mool Pratap Bahadur Pal (A I R 1945 All. 284), Vayant Jaiwantrao Mahajan v. Tukaram Mahadaji Patil (A I R 1960 Bom. 485) and Mian Abdul Aziz v. Dr. C. A. Chishti, Managing Director, Katar band & Co. Power House, Jhang and another (P L D 1959 Lah. 31) which lay down that although a Court cannot admit an application for review merely upon the ground that it has made a mistake in law, but if the mistake is an obvious one due to failure to notice a particular section of an Act, or part of such a section, it can be corrected by the Court. It seems to me that the decisions relied upon by Mr. Ajmal Mian apply directly to the case before me inasmuch as second part of section 87 of the Karachi Port Trust A Act was completely committed from notice, with the result that its effect on the maintainability of the plaintiff's suit was not examined at all. I would, therefore, hold that the present review application is maintainable.

6. It could be advantageous to reproduce section 87 of the Karachi Port Trust Act, which is relevant here "No suit shall be commenced against any person for anything done or purporting to have been done in pursuance of this Act, without giving to such person one month's previous notice in writing of the intended suit and of the cause thereof, nor after six months from the accrual of the cause of such suit. And, in the case of a suit for damages, if tender of sufficient amends shall have been made before the suit was brought, the plaintiff shall not recover more than the amount so tendered and shall pay all costs incurred by the defendant after such tender."

7. It will be seen that the section lays down two conditions for the institution of a suit against the Port Trust, namely, that (a) one month's previous notice in writing of the intended suit and of the cause thereof should be given, and (b) the suit should be brought not after six months from the accrual of the cause of such suit. Now, in the present case, the notice was given on the 15th of December 1959 although, according to my finding, the cause of action had accrued on the 15th of April 1959, when the Port Trust had passed the resolution rejecting the plaintiff's application for the grant of six months' leave on full pay plus the leave earned by him during the period of his extended service. That being the date of the accrual of the cause of action, no suit could have been instituted after the 15th of October 1959, with the result that on the 15th of December 1959 when the notice under section 87 of the Karachi Port Trust Act was served, there was no subsisting cause of action in the sense that it could form a basis for a validly instituted suit. That being so, the notice served on the 15th of December 1959 was invalid. I have no doubt further held that the cause of action which accrued on the 15th of April 1959, was subsequently added to when the salary for the refused leave started accruing, but in connection with the accrual of the leave salary, no subsequent notice was served, with the result that the first part of section 87 was not complied with. to this case, therefore, the previous judgment is based upon an omission to notice the fact that the second part of section 87 of the Karachi Port Trust Act forbids the institution of a suit after six months of the date of accrual of the cause of action. The result, therefore, is that the judgment stands vitiated in law and needs to be reviewed.

8. For these reasons, I would hold that, in the first place the notice given on the 15th of December 1959 was invalid on account of the fact that more than six months had passed since the cause of action accrued on the 15th of April 1959, and secondly, that even if it be held that the suit was actually based on the subsequent addition to the cause of action, namely, when the period of leave in question commenced, then there arises the hurdle that there was no valid notice served after the salary started accruing, and for that reason also the suit could not be instituted. The effect is that the plaintiff's suit could not proceed. The previous judgment is reversed and the plaintiff's suit is dismissed. In view, however, of the circumstances of the plaintiff, there will be no order as to costs. A. H. Order accordingly.