2007 PLP 1754 (CLC)

MUZAFFAR ALI, J.

Through this first appeal, the appellant assails order dated 23-5-2006 passed by the learned District Judge, Skardu, whereby the Learned District Judge has maintained his order, dated 30-5-2005 refusing petition .Civil Miscellaneous No.50 of 2005 filed by the present appellant. It is pertinent to note at very outset of this order that, no right of appeal is available to the present appellant under the relevant law in the matter, therefore, the appeal is not competent, but since, the issue involves. some critical legal points as well as procedural technicalities in it, same are required to be scrutinized carefully by discussing the relevant law as such the appeal is converted into revision. The compendium of the matter is as such that, the present appellant filed Review Petition No.4 of 2005 before the Court of learned District Judge, Skardu on 12-5-2005. The petition was submitted before the learned Judge on 30-5-2005 for order. On the appointed date, the petitioner as well as the counsel for the petitioner remained absent from the Court, when the case was called, as such the learned District Judged passed the order as that:

"Petitioner nor his counsel present, so the case called thrice. Petition is dismissed in default. Case file be consigned to record after completion. " The present appellant filed civil miscellaneous application for restoration of review petition and recalling the rider order but after lapse of four months and two days, coupled with an application for condonation of delay, under section 5, Limitation Act. The learned Judge heard the parties and dismissed the restoration application through impugned order, declaring the same time-barred and also refusing the condonation application under section 5 of the Limitation Act, hence this revision petition. The bizarre aspect in the case seems to be that, neither the learned Judge is definite about, under .what provision of law, he has dismissed the. review petition for default and under what provision of law, the restoration application is time-barred, nor the learned counsel for the present appellants is certain in this regard, as such he has claimed condonation of delay under section 5 of the Limitation Act, but one thing is very clear that both have speculated 3 months of limitation for restoration of review petition and even before this Court, the line of the arguments taken by the learned counsel, show his stand for same presumption. Any how; I am going to understand the Law relevant in the above circumstance of the case, with the assistance of both the counsel for the parties. Contrary to suits and appeals, there is no any specific provision in the Code of Civil Procedure (hereinafter called the Code) which may enable a Court to dismiss a revision or review petition for default and in the like manner, there is no any provision in the Code, which may enable a petitioner to move the Court for restoration of the petition dismissed for default. In civil suit, the trial Court is empowered under Order IX, rule 8 of the Code to dismiss the suit if defendant appears before the Court and the plaintiff remains absent from the Court when suit is called for hearing and where, neither party appears, the suit may be dismissed under Order IX, rule 3 and the plaintiff may apply to the Court for restoration of the suit under Order IX, rule 9 or under Order IX, rule 4 respectively and Article 163, Limitation Act provides 30 days limitation if order of dismissal comes within the purview of Order IX, rule 8, likewise in the appeal the Appellate Court is empowered under Order XLI, rule 11, sub-rule (2) of the Code to dismiss the appeal for default prior to issuance of notice and Order XLI, rule 17 of the Code enables an Appellate Court to dismiss the appeal .for default when the appeal is fixed for hearing and the appellant may invoke jurisdiction of the Appellate .Court for re-admission the same under rule 19 of Order XLI of the Code and Article 168 of the Limitation Act provides 30 days of period to apply for re-admission of the appeal if the order comes within the ambit of Order XLI, rule

17. The above legal discussion clearly transpires that the Code does not provide any express provision to enable a Court to dismiss a revision or a review petition for default, likewise, there is no any provision expressly available in the Code, under which the revision or a review petition may be restored or re-admitted and no express provision either in the Code or in the Limitation Act is available, which prescribes any limitation period for restoration of a revision or review petition and to meet such a situation for ends of justice and to provide a remedy for wrong done to a litigant and to prevent abuse of process of the Court, the High Courts as well as the august Supreme Court of Pakistan have interpreted the situation on the basis of well-settled principle that "where there is no express provisions to meet a legal situation in the Code the Courts are empower to exercise their inherent jurisdiction under section 151 of the Code to meet the same if situation so demands". There is ample case-law is available based on the- above principle. (Though the same is in respect of revision petitions and I failed to find out any precedent relating to the restoration of review petition, dismissed for default) but the same may be equally applied to review petitions too, as neither the Code provides any specific provision for restoration of a review petition dismissed for non-prosecution,' nor any provision of the Code or of Limitation Act fixes any period of limitation for its restoration, hence I have no hesitation to apply the above principle in the case in hand and same can be restored under section 151 of the Code and once the section 151 is applied for its restoration, then residuary Article 181, Limitation Act would apply and provides 3 years of limitation as such, the restoration application filed by the present petitioner is well within time and since the learned District .Judge has refused the application only on the single score of limitation and the order of dismissal has been made in a hasty manner on the first day when the case was put before him, hence, I am not going into the issue of "sufficient cause" in the case. Reference made to (1) PLD 1981 SC page 513, (2) PLD 2000 SC page 820, (3) 1971 SCMR page 740, (4) PLD 1992 Lah. Page 250, (5) PLD 1992 Kar. 329 (6) PLD 1982 Lah. Page 192 (7) 1992 CLC page 1394 (8) 1983 CLC page 335 (9) 1990 CLC page 1936. Consequent upon the above discussion, the impugned order as well as the order of the dismissal of the review petition in default, by the District Judge are set aside and the matter is remitted to the District Court concerned to adjudicate the review petition on its merits. File. F.B./35/Glt. Appeal allowed.