1986 PLP 899 (CLC)

1908.

2. The view taken as above finds support from a number of cases to some of which I may refer here: (i) In the case of M. Imamuddin Janjua v. The Thal Development Authority P L D 1972 S C 123, one of the questions which came up for consideration was as to whether Article 181 of the Limitation Act, applied to the proceedings under section 20 of the Arbitration Act, 1940. After referring to the Article 181 and‑ discussing the law, Honourable Judges of the Supreme Court of Pakistan held:‑ " .... the scope of Article 181, which is in the nature of a residuary Article must necessarily be extended to all kinds of applications for which no specific period of limitation has been provided for either in the First Schedule to the Limitation Act or in any other statute. To hold otherwise would lead to the anomalous result that for the applications which have not been expressly provided for in the Third Division of the First Schedule to the Limitation Act there will be no period of limitation at all. This could not have been the intention of the Legislature." (ii) Reference may now be made to the case of Sardar Abdul Majid Khan Lashari v. The Asio‑African Co. Ltd. 1972 S C M R 2'36 in which while considering the question of applicability of Article 181 to an application made under section 47, C . P. C . , the Honourable Supreme Court held:‑ "Article 181 is a residuary Article and applies to all the matters in respect of which no period of limitation is provided." (iii) In the case of Mst. Afzal Begum and others v. Y.M.C.A. 1979 S C 18, the Honourable Supreme Court after extensive discussion and citing with approval the observation made in the case of Noor Muhammad and others v. The Rehabilitation Commissioner Karachi P L D 1959 Kar. 19 that the wordings of Article 169 of the Limitation Act were applicable only where one has a decree and the proper Article to apply in case of an application for rehearing of an appeal decided ex parte (from an order refusing an interim injunction) was the residuary Article 181 and not Article 169 and thus an application for rehearing presented within three years of the ex parte order was in time, held:‑ "In the light of the above discussion I am of the considered opinion that the ejectment order, dated 9th of April, 1974 was passed ex parte by the High Court in appeal under section 15(4) of the Urban Rent Restriction Ordinance, 1959. It was not a decree as such and, therefore, Article 169 of the Limitation Act was not at all applicable to the application made by the petitioners to set aside the ex parte order and rehearing of the appeal. It was governed by the residuary Article 181 of the Limitation Act and the application for rehearing of the appeal could have been made within three years."

3. Reference may also be made here to the case reported as Malik Inayat Ullah Khan v. Government of Pakistan P L D 1985 Pesh. 23 in which a learned Single Judge after observing that an application made under subsection (2) of section 12, C.P.C. would not be covered by Article 173 (which prescribes period for filing of application for review of a judgment except in the cases provi ded by Articles governing the said proceedings is Article 181 jog the First Schedule to the Limitation Act. In the case of Muhammad Alamgir and others v. Muhammad Iqbal and others 1985 C L C 2919 a learned Single judge of the high court of Lahore following the judgment given in the case of Malik Inauat Ullah Khan v. Government of Pakistan (ibid) held that the period prescribed by Article 181 would be applicable to an application made under section 12(2) C P C. In the case of Malik Inayt Ullah Khan v. Government of Pakistan (ibid) reference was made by the learned Judge to the case reported as Sikandar v. Salih Muhammad 1983 C LC 1590 decided by a learned Division Bench of this Court. After making an observation that in the Karachi case, the application filed under section 12(2), C.P.C. could not have been treated as a review petition which is filed under rule 1 of Order XLV II, C.P.C the learned Judge referred to the distinction between the principles governing review petitions and those which are applicable to applications under section 12(2), C.P.C. and held that an application made under the last mentioned section would be covered by Article 181 for the purpose of limitation and not Article 173 of the First Schedule to the Limitation Act. The learned Judge of the Lahore High Court in the case of Muhammad Alamgir and others v. Muhammad Iqbal and others (ibid) after referring to Karachi case, agreed with the reasons given in the above‑cited case of Malik Inayatullah Khan v. Government of Pakistan and held that Article 181 is applicable and not Article 173 to application made under section 12(2), C.P.C. it

4. Before concluding in he circumstances it becomes necessary to refer here to the decision given in the case of Sikandar v. Saleh Muhammad. With respect, I may state that the ratio decidendi of the judgment given by the learned Division Bench of this Court in the cited case was not properly appreciated in the two cases referred above. In the Karachi case though an application was made under section 12(2), C.P.C. read with section 151, C.P.C. but the same was dealt with for purpose of computing period of limitation as an application for review for the reason that in the said application itself the applicant had also prayed for "review" of the judgment and that the learned Advocate for the applicant in that case himself had argued it as an application for review as would appear from the following passage reproduced from the said judgment:‑ "Now, by the present application under section 12(2), C.P.C. read with section 151, C.P.C. the respondent prays for review or setting aside of the judgment on the ground that the same has been ob a d by the appellant by fraud and misrepresentation. The office has raised objection to the maintainability of the application on the ground of limitation. We have heard Mr. Hussain Shaikh Advocate for the respondent in support of the application. He submits that for an application for review on the ground of fraud or misrepresentation the period of limitation provided is 3 years. He relies on Article 181 of the Limitation Act. We do not agree for the Article applicable for review in the present case is Article 173 which provides a period of 90 days from the date of the decree or order, for making an application for review." The learned Division Bench on the facts held that the judgment sought to be set aside was not based on any fraud, misrepresentation or misreading of evidence, and while considering the maintainability of the application in the light of the prayer made in the alternative, for review observed that it would be governed by Article 173 and thus was barred by time. The procedure followed in that case was in accordance with the well‑recognised principle that the rules framed in the Code of Civil Procedure are rules for the advancement of justice and they should not be allowed to operate so as to defeat the ends of justice Imtiaz Ahmad v. Ghulam Ali and others P L D 1963 S C 382, Toor Gul v. Mumtaz Begum P L D 1972 SC 9 and Muhammad Ismail v. Muhammad Sarwar 1980 S C M R

254. In the case of Sikandar v. Saleh Muhammad the learned Division Bench had not suo motu treated the application made under section 12(2), C.P.C. as an application for review. The case before me is thus distinguishable as I am not required to consider the application as one for review as in the case of Sikandar v. Saleh Muhammad (ibid).

5. The upshot of the above discussion is that this application made under section 12 (2) , C . P . C . to which no period of limitation as provided for in the Limitation Act shall fall within the scope of the residuary Article 181, and thus the same having been filed after the expiry of three years is dismissed as barred by time. The above are the reasons for the short order passed on 3‑12‑1985. A . A . Application dismissed