1992 PLP 920 (MLD)

This application under Order XLVII Rule l and section 151, C.P.C. is filed by the plaintiff for review of my order, dated 13‑12‑1988. The said order was passed on an application under Order 7, Rule 11, C.P.C. made by the defendant No.1 praying for rejection of plaint under Order 7, Rule 11, C.P.C. stating that the plaintiff first instituted a suit bearing 914/88 in the Court of Xth Civil Judge (South) Karachi who by his order, dated 18‑7‑19(sic) returned the plaint for presentation in proper Court having pecuniary jurisdiction but the plaintiff instead of presentation of the said plaint made 15 amendments in paras. 7 to 22 and also in prayer clause therein and presented a new plaint in this suit alongwith original plaint filed by him in the Court of learned Civil Judge. The objection of the learned counsel for defendant was that the plaintiff could not tamper with a document which was a part of the Court record and could not have. filed a fresh plaint without seeking necessary permission from this Court. In support learned counsel place reliance on PLD 1970 Karachi

367. Following the dictum in the said case I rejected the plaint in the suit and instead accepted the plaint as originally filed by the plaintiff in the said Xth Court of Civil Judge with permission to the plaintiff to move a proper application for amendment of the plaint if he is so advised. It is contended by learned counsel for the plaintiff that on 13‑12‑1988 when the said order was passed the said reported judgment namely PLD 1970 Karachi 367 was no more in the field as it was set aside in appeal by a Division Bench judgment reported in PLD 1981 Karachi

277. Thus there was an error on the face of record which is liable to be set aside. It may be stated here that this application was filed by the plaintiff on 12‑6‑19W and objection was raised by the office as to the maintainability of the application on the ground of limitation which as per Article 16)7 of Limitation Act was to be filed within period of 20 days. Defendant has not filed any objection to this application. Learned counsel for defendant Mr. Saleem Karam Ali, in all humility has offered pardon for not referring to the said D.B. Judgment by which PLD 1970 Karachi 367 was set aside as he could not lay his hands on it through the law digests despite diligent search. Admittedly no appeal was preferred against the order, dated 13‑12‑1988. According to the learned counsel for the plaintiff, fraud was practised, on the Court in which case time would start running from the date of its knowledge and hence Article 167 of Limitation Act is not applicable. Besides the said order was passed on the basis of an overruled case thus, there was an error on the face of record which may be corrected by the Court at any time. In support of his contention that a Review Application would lie on the facts and circumstances of the case, learned counsel placed reliance on Syed Muhammad Zaki and another v. Maqsood Ali Khan and another PLD 1973 SC 110, Muhammad Khan v. Pakistan PLD 1958 Karachi 75 and Hip Foog Hong v. H. Neotia & Company AIR 1918 Privy Council

181. It will be advantageous here to reproduce an extract from Syed Muhammad Zaki and another v. Maqsood Ali Khan and another PLD 1973 SC 110 as under:‑‑‑ "A judgment of a Full Bench also decides authoritatively for the High Court the point of law referred to it and, therefore, to that extent also declares the law with respect to that point. That declaration of law is binding on all other Benches of the High Court until set aside or reversed by another Full Bench of the same High Court or by a. superior Court. Failure to notice such an authoritative decision would, therefore, clearly be an error apparent on the face of the record, the Single Judge was, therefore, not right in holding that the review petition was not maintainable." In the present case not only there was an authoritative decision of this Court on the same question but the judgment of the learned Single Judge was overruled by a Division Bench as reported in PLD 1981 Karachi

277. I, agree with the learned counsel for the plaintiff that on facts discussed above there was an error on the face of record. Accordingly, in exercise of powers under section 153, C.P.C. I treat the Review Application in question within time and set aside my order, dated 13‑12‑1988 with direction that the plaint as filed by the plaintiff in the suit be taken on record instead of the plaint as originally filed by the plaintiff in the Court of Xth Civil Judge, Karachi. A,A./S‑849/K Order accordingly.