MANDI HASSAN alias MEHDI HUSSAIN and another vs MUHAMMAD ARIF

' MIAN SAQIB NISAR, J.---This appeal with the leave of the court involves the question of law, whether an application seeking restoration of a civil revision dismissed for non-prosecution is governed by any specific Articles of the Limitation Act, 1908 (the Act) prescribing limitation or the residuary Article 181 of the Act will be applicable. In the above context the facts of the matter are that the appellants had filed a Civil Revision No.578-D/2009/BWP before the learned High Court challenging therein the decision(s) (case decided) of the court(s) subordinate thereto and a pre- admission notice was issued to the respondent in the matter. When civil revision came up for hearing at the motion stage, none represented the appellants, therefore, it was dismissed for non- prosecution. In order to seek restoration of the same, an application was filed by the petitioner on 15-10-2012, accompanied by an application under section 5 of the Act (seeking condonation of delay in initiating the restoration application). This C.M. No.4121/2012/BWP has been dismissed by the learned High Court on the grounds that the restoration application had been moved after a delay of more than 8 months, whereas "the period prescribed for restoration of a petition dismissed for want of prosecution is 30 days (emphasis supplied). No plausible explanation is found from the contents of the application justifying restoration of the captioned revision petition". Leave in this case was granted on the basis of the law laid down in the judgment reported as Muhammad Sadiq v. Mst. Bashiran (PLD 2000 SC 820) to consider if the period of limitation for seeking restoration of a civil revision dismissed for non-prosecution is 30 days or the residuary Article 181 of the Act shall be applicable, which prescribes a limitation period of 3 years.

2. Before embarking upon to resolve the above proposition, we find it expedient, to briefly assess the nature of the jurisdiction of courts in relation to civil revisions filed in terms of section 115 of the C.P.C. There can hardly be two opinions on the nature of revisional jurisdiction. It is a supervisory jurisdiction, which is vested in a higher forum (subject to the pecuniary jurisdiction of the case either the learned District Court or the learned High Court) and is exercised and/or is invoked for scrutiny if a 'case decided' by the court subordinate to the higher court's jurisdiction, suffers from any defect in terms of exercise of its jurisdiction and/or on the ground(s) that the court subordinate has acted in exercise of such jurisdiction illegally and/or with material irregularity. On the basis of the law enunciated and settled by this Court, there is wee room for doubt that being a supervisory jurisdiction, the higher forum which is approached (i.e. the revisional court) is conferred with the power to ensure that the court subordinate thereto (to the revisional court) conforms to the parameters of its jurisdiction. In other words the revisional jurisdiction is meant to rectify; to obviate, forefend and stave off the exercise of jurisdictional errors/defects and the illegalities and/or material irregularity committed by the subordinate court in that regard. But the "case decided" (order/judgment assailed) has to squarely fall within the scope and the purview of section 115 of the C.P.C. It may however be categorically and unequivocally mentioned here, that approaching a higher court in the revisional jurisdiction for the redressal of one's grievance, if the case is covered by section ibid (115, C.P.C.) is not a privilege, but is a valuable right of an aggrieved party. Obviously, such exercise of revisional jurisdiction shall be subject to the rules of discretion; but the matter of approaching the revisional court cannot be relegated to a mere privilege of the court and not a right. The above view is fortified by a five Members Bench judgment of this Court reported as Karamat Hussain and others v. Muhammad Zaman and others (PLD 1987 SC 139) which held that "True the exercise of this jurisdiction by the High Court is discretionary but that does not mean that a revision is not a right but only a privilege". In an another case Muhammad Yousaf and 3 others v. Khan Bahadur through Legal Heirs (1992 SCM R 2334), this Court concluded that "the exercise of revisional jurisdiction by the' High Court is a matter exclusively between the High Court and the subordinate Courts, albeit the parties to the litigation have a right (emphasis supplied by us) to bring to their notice the jurisdictional/legal errors as envisaged in section 115 of the C.P.C."

This is the apt, the conclusive and the final enunciation of law on the subject by this Court. And any view set out by certain dicta, of the various learned High Courts contrary to the above principle, which invariably comes to our notice, treating and considering the revisions to be a mere privilege and not a right carries no legal sanctity:

3. Having simply reiterated the correct legal position about the nature of civil revision, we now move forward to deal with the proposition in hand and state, that a comprehensive procedure has been prescribed by the Code of Civil Procedure (C .P.C.) for the purposes of regulating and conducting suits and appeals. Suits can be dismissed for non-prosecution/default and restored under Order IX, C.P.C.; the relevant provisions in this context about appeals are found in Order XLI, C.P.C. But, unlike the above there are no provisions in C.P.C. to cater for a situation, where a revision petitioner fails to appear and to prosecute his case. The question is whether the court in such a situation, is obliged to keep the matter pending until and unless the petitioner appears before the court and argue his case or should beseech the presence of the petitioner (his counsel), allowing an indefinite period of time to him for prosecuting his case. And in this manner not only the court becomes hostage to the petitioner and remains duty bound and obliged to retain the matter in its docket and debit infinitely, which situation may not only result to the advantage and premium of the petitioner, rather to the contrary, to the prejudice/disadvantage to the opposite side but also to other litigants before the court(s) who might have been yearning for years for the hearing and the disposal of their cases, however, on account of huge pendency caused due to one reason or the other stands no chance of expeditious justice. This is neither in consonance with the rules of justice nor the 'equity jurisprudence' developed in this country; in the alternative the court should dismiss the revision for non-prosecution/default on the principle(s) that whosoever has approached it (the court) for the exercise of his right has "abandoned" the same; or is no more interested and/or vigilant enough to pursue his cause etc. This dismissal can be validly made in the exercise of inherent jurisdiction of the court meant to prevent in this way an abuse and process of the court.

The third option could be that the court necessarily should decide the revision petition on merits, on the principle that being in supervisory jurisdiction and the matter being between the superior and the subordinate courts, the superior court should rectify the error on its own, (note:- where the court finds a case squarely falling within the purview of section 115, C.P.C.). Out of the three possibilities mentioned above, in our candid and Considered view, where a revision petition has not been admitted for regular hearing it should be dismissed for non-prosecution on the grounds, inter alia, as highlighted in the preceding part. This shall be in line with and shall be done by the court while exercising its inherent jurisdiction to meet the ends of justice and to prevent the abuse of process of the court, which inherent power of the court has been recognized by section 115, C.P.C., which stipulates that "Saving of inherent powers of Court.---Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court". Likewise the reversal of such dismissal and restoration of the revision can also be made by the court resorting to its inherent jurisdiction so far as the case for restoration has been made out. But this should only be done where such inherent jurisdiction of the court has been invoked by the revision petitioner (note: it may be pertinent to mention here that we are deliberately refraining ourselves from commenting on the proposition that once the revision is admitted to regular hearing generally it should not be dismissed for non-prosecution, and may comment in this regard in an appropriate case, because in the instant matter the revision was at the motion stage). On the basis of above, it is held, that a revision petition can be dismissed for non-prosecution by the Court in the exercise of its inherent power, and akin thereto only the inherent power of the Court can and should be pressed into service for its restoration.

4. The question thus which would need immediate attention and answer is whether there is any limitation period prescribed by the Act for invoking the exercise of such inherent power by the party? For answering this question, when one scans through the various Articles of the Act, absolutely no specific provision is found. At this juncture for elucidation it may be pointed out that since there was no specific period of limitation prescribed for restoration of a revision petition dismissed for non-prosecution in the Act, a change has been brought in the Indian Limitation Act 1963 in the form of Article 122 which mandates:-- {{TABLE}} Description of applicationPeriodof llmitationTime fromwhich period begins to run To restore a suit or appeal or application for review or revision dismissed for default of appearance or for want of prosecution or for failure to pay costs of service of process or to furnish security for costs.Thirty daysThedateof dismissal. {{TABLE}} ' As mentioned earlier, lack of the requisite provision, it shall be inevitable to resort to Article 181 of the Limitation Act, which is the residuary Article and caters for and is meant only for meeting such kind of situations/eventualities. It provides as under:- {{TABLE}} Description of applicationPeriodof limitationTime fromwhich period begins to run Applications forwhichno periodof limitation is provided elsewhere in this schedule or by section 48 of the Code of Civil Procedure, 1908.Three yearsWhen the right to apply accrues {{TABLE}} It is thus taking into account the aforestated legal position, this Court in Muhammad Sadiq's case supra, came to the conclusion "No provision for recalling/setting aside the order dismissing a revision for non-prosecution having been provided to overcome such situation inherent jurisdiction of the Court could be invoked which had been conferred upon trial, appellate and revisional Courts in terms of S.151, C.P.C. subject to the condition that no other specific provision to deal with the issue was available under Civil Procedure Code, 1908 No limitation having been prescribed for filing an application to invoke Jurisdiction of the Court under. S.151, C.P.C. in the Limitation Act, 1908 or S.48, C. P. C.: residuary provision of Art.181, Limitation Act, 1908, would be attracted which provide period of three years for the purpose".

5. Now coming to the ratio of the law laid down in the judgment reported as Allah Bachai and others v. Fida Hussain and others (2004 SCM R 615) in which it has been held that Article 181 of the Limitation Act; 1908 shall not be attracted for the application for restoration of the revision dismissed for non-prosecution; with due deference to the learned Judges (two Members Bench) the law laid down in Rabia Bibi's case supra was either not brought to the notice of the honourable Bench, or it eluded their attention; besides the reason assigned in this behalf that the applicant of a case (who seeks restoration) is not clothed with any right under C.P.C. to make any application for restoration of revision petition dismissed for non-prosecution, as against the suits and appeals and therefore when the right to apply does not accrue, Article 181 shall not be attracted, in our humble estimate is not the correct enunciation of law. In this context said Article is reproduced as under:-- {{TABLE}} Description of applicationPeriodof limitationTime fromwhich period begins to run Applications for which no period of limitation is provided elsewhere in this schedule or by section 48 of the Code of Civil Procedure, 1908.Three yearsWhen the right to apply accrues {{TABLE}} ' In the above syntax, suffice it to say, that it was with the purpose of meeting this reasoning of the court in Allah Bachai's case supra, that the nature of the revisional jurisdiction was briefly dilated upon in the first part of this opinion. The main purpose was to highlight that revision is not a "privilege" rather a "right", therefore if such revision petition which has been dismissed for non- prosecution, as a legal and natural corollary to that right, it shall also be the right of the party to apply for its restoration, which object may be achieved only by invoking the inherent jurisdiction of the court. Because to invoke such jurisdiction of the court to make such orders as may be necessary for the ends of justice or to prevent the abuse of process of the court, cannot in a befitting case be held to be a mere privilege, but is a right. Thus the true import of the expression "when the right to apply accrues" in Article 181, obviously means the right accrued to apply for a restoration by invoking inherent jurisdiction. And the starting point of time shall be the date when the revision is dismissed for non-prosecution (subject to certain exceptions available under the Act).

6.In view of the above reasoning, as the learned High Court in the instant case has primarily dismissed the civil revision on the ground that it is barred by time; and passingly has remarked that even no plausible explanation is found justifying restoration, this view and since this view has been formed without even considering the contents of the application and applying its mind by the court, whether a sufficient cause was propounded in the restoration application, or not, and a case was made out, the decision of the learned High Court, in our opinion, cannot be sustained either on the point of limitation or on merits. Resultantly, by allowing this appeal, the impugned judgment is set aside, the matter is remanded to the learned High Court to decide the application of the respondent for restoration on its own merits i.e. whether it qualifies the test of i.e. "sufficient cause" for the restoration or not.

7.Before parting with this judgment, keeping in view the above discussion, we deem it expedient that a copy of this judgment be sent to the Secretary, Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan to take immediate steps for amendment in the provisions of Limitation Act, 1908, keeping in view the contents of paragraph No.4 of judgment, highlighting the corresponding amendment in the Indian Limitation Act, 1963, to bring harmony and consistency in regulating the period of limitation for the restoration of a civil revision petition, dismissed for non- prosecution.