' MUHAMMAD JUNAID GHAFFAR, J.--- Through instant appeal, the appellant has impugned order dated 29.11.2013, whereby, the Judgment dated 31.8.2010 through which the Suit of Respondent No.1 was dismissed as being time barred, has been recalled by restoring the Suit to its original position.
2. Precisely the relevant facts are that respondent No.1 had filed a Suit for Recovery of Rs.10.5 billion against the appellant and others for malicious prosecution, wherein the respondent No.1 had pleaded that the cause of action arose on 20.7.1994, whereas, the Suit was filed on 6.8.1995 in which summons were issued and respective written statements were filed by the parties. Though office had not raised any objection with regard to limitation, however, vide order dated 24.11.2008, a learned Single judge took a judicial notice that the Suit appears to be time barred under Article 23 of the Limitation Act. Consequently, a preliminary legal issue was framed that as to whether the Suit filed by the plaintiff is time barred. Thereafter, the Suit was listed for hearing of preliminary issue and vide Judgment dated 31.8.2010 the Suit was dismissed as being barred by limitation.
Subsequently, an application was filed on behalf of respondent No.1 for recalling of the Judgment dated 31.8.2010 which has been allowed vide impugned order.
3. Counsel for the appellant has contended that the Suit filed by the respondent No.1 was time barred as in Para 31 of the plaint the respondent No.1 had stated that the causes of action accrued on 20.7.1994 and the limitation period for malicious prosecution is one year therefore, the Suit was required to be instituted on or before 19.7.1995 whereas, the same was filed on 6.8.1995 hence, the same was barred by limitation. Counsel further submits that though the period of limitation was expiring during vacations, however, the Notification dated 21.3.1995 issued by the Registrar of this Court, provides that during the period of vacations, all petitions will be received daily from the persons who choose to present them except on public holidays and therefore, per Counsel the respondent No.1 was not entitled to file the Suit on the first opening day of the Court and take benefit of Section 4 of the Limitation Act, 1908. In support of this proposition, the Counsel relied upon Khushi Muhammad and 6 others v. Muhammad Sharif and 6 others (1995 MLD 1042), Muhammad Shareef v. Muhammad Ramzan and 3 others (2006 CLC 618), Fateh All Khan v. Subedar Muhammad Khan (1970 SCMR 238) and Juma v. Maulvi Mubarak (1,971 SCMR 779). Counsel further contended that even otherwise the application for recalling of the order dated 31.8.2010 was also time barred and was even dismissed for non-prosecution therefore, the learned Single Judge ought not to have passed the impugned order as the same could only have been done by the appellate Court and not by the learned Single Judge. Counsel contended that the judgment dated 31.8.2010 could only have been recalled under Order IX, Rule 13 or set aside under Section 12(2), C.P.C. And not through an application under Section 151, C.P.C. Therefore, the impugned order being illegal, may be set aside.
4. Conversely, Counsel for respondent No. 1 has contended that without prejudice, the Judgment dated 31.8.2010 was void, ab-initio therefore, the same was liable to be recalled, as the Court had erred in calculating the period of limitation while dismissing the Suit of respondent No.
1. Counsel contended that since the limitation period was expiring during vacations of the Court, therefore, respondent No.1 was entitled for the benefit of Section 4 of the Limitation Act. Counsel has relied upon Rule 7 of the Sindh Chief Court Rules (Original Side). In support of her, contention Counsel has relied upon the case of Sirajuddin v. Muhammad Sharif (PLD 1963 Karachi 883), Memon Educational Board and Society, Karachi v. Munawar Hussain (2003 SCMR 157), Malik Khawaja Muhammad and 24 others v. Marduman Babar Kahol and 29 others (1987 SCMR 1543) and Fazal Khan and another v. Ghulam Jilani and others (1975 SCMR 452).
5. We have heard both the learned Counsel and have perused the record including R&P. By consent instant appeal is being disposed of finally at Katcha peshi stage.
6. It appears that respondent No. 1 had filed a Suit for Recovery of Rs.10.5 billion as Damages by contending that he was falsely implicated in Criminal proceedings with malicious intent and without any probable cause. The case of the plaintiff was based on a cause of action which accrued on 20.7.1994, on which date the proceedings against the respondent No.1 were quashed by the Court. The period of limitation provided under Article 23 of the Limitation Act for Institution of Suit for Compensation in respect of malicious prosecution is one year from the date the plaintiff is acquitted or the prosecution is otherwise terminated. Though the appellant had not raised any such objection through its written, statement or otherwise in this regard, however, the Court itself vide order dated 24.11.2008, while disposing of certain Misc. Applications (not relevant for the present proceedings) by taking a judicial notice, passed an order wherein the following observations are relevant:-- "Before parting with this order, it is necessary to frame an issue with regard to the limitation of this suit. This suit was filed for malicious prosecution against the defendants on 6.8.1995, whereas the prosecution was terminated on 17.7.1994 by short order and the proceedings were quashed by the High Court. Apparently, Article 23 of the First Schedule of the Limitation Act will be applicable.
Neither the defendants have questioned the limitation of filing of this suit nor any issue in this regard has been framed. In the reported case of Hakim Muhammad Buta v. Habib Ahmad (PLD 1985 Supreme Court 153) it has been held as under: "The law, therefore, does not leave the matter of limitation to the pleadings of the parties. It imposes a duty in this regard upon the Court itself. There is a chain of authority, and a detailed discussion of the same is not necessary, to lay down that limitation being a matter of statute and the provisions being mandatory, it cannot be waived and even if waived can be taken up by the party waiving it and by the courts themselves."
' In view of the above, it is necessary to frame following additional issue:-"Whether the suit filed by the plaintiff is time-barred."
' The above issue be treated as preliminary issue. Office is directed to fix the same for hearing after, notice to the parties."
7. Thereafter the Suit was listed for hearing this preliminary issue on a number of dates and vide Judgment dated 31.8.2010 the Suit filed on behalf of respondent No.1 was dismissed as being barred by limitation. Subsequently, the respondent No.1 filed an application bearing CMA No.379 of 2011 on 12.1.2011, for recalling of Judgment dated 31.8.2010 by contending that they had no intimation with regard to passing of the aforesaid Judgment and. It only came to their knowledge through the Law Journal i.e. 2010 CLD 1541 wherein the said Judgment was reported. This application was fixed before the Court for orders on 11.5.2011 when again the Counsel for respondent No. .1 was called absent and the application was dismissed for non-prosecution. Thereafter, another application bearing CMAs Nos.3125 and 3650 of 2012 were filed by respondent No. 1 under Section 151, C.P.C. For recalling the Judgment dated 31.8.2010 and so also under Section 5 of the Limitation Act for condonation of delay in filing such applications. The learned Single Judge while deciding the aforesaid applications has been pleased to recall/review the Judgment dated 31.8.2010 and has restored the Suit to its original position, which order has been impugned in the instant proceedings.
Insofar as accrual of cause of action on 20.7.1994 and filing of Suit on 6.8.1995 is concerned, they are not in dispute. The respondent No.1 has contended that since the period of limitation was expiring on 19.7.1995 during vacations of the Court, the Suit was filed within time on 6.8.1995 i.e. The first opening day of the Court by seeking benefit under Section 4 of the Limitation Act, 1908. It would be advantageous to refer to the Notification dated 21.3.1995 issued by the Registrar of this Court in respect of the summer vacations of the Court which reads as under:- "THE HIGH COURT OF SINDH, KARACHI" No.GAZ/XVII13, dated Karachi the 21st March, 1995.
NOTIFICATION.
' It is hereby notified for general information that the High Court of Sindh, Karachi and its Benches at Sukkur, Hyderabad and Larkana will be closed for civil business on account of Summer Vacation from Sunday the 4th June, 1995 to Saturday the 5th August, 1995 and will re-open on Sunday the 6th August, 1995.
' The Court and Office of the High Court of Sindh at Karachi and its Benches at Sukkur, Hyderabad and Larkana will observe the following timings during ensuing Summer Vacation.
' COURT TIMINGS (From Sunday to Thursday)
09.30 A.M. To 11.00 A.M.Court Sittings 11.00 A.M. To 11.30 A.M. ............. Interval 11.30 A.M. To 01.30 P.M. Court Sittings.
' OFFICE TIMINGS (From Sunday to Thursday)
09.00 A.M. To 02.00 P.M. (Without break)
' During the said period of Vacation, Petitions will be received daily from the persons who choose to present them except on Public Holidays. All such Petitions and other miscellaneous petitions which cannot be disposed of at once will be heard on the re-opening day of the Court after Summer Vacation on the dates that may be fixed.
' BY ORDER OF THE HIGH COURT REGISTRAR"
8. The learned Single Judge while passing the impugned order has observed that since the Court was not assisted on behalf of respondent No.1 when Judgment dated 31.8.2010 was passed as this Notification was not brought to the notice of the Court and therefore, the Court had dismissed the Suit being time barred, though the same was filed on the first opening day of the Court and was entitled for the benefit of Section 4 of the Limitation Act. We are respectfully in agreement with the observation of the learned Single Judge in this regard as there is no cavil to this proposition that if the period of limitation is expiring on a day when the Court is closed the Suit may be instituted, preferred or made on the day when the Court reopens. Section 4 of the Limitation Act reads as under:- "4. Where Court is closed when period expires. Where the period of limitation prescribed for any suit, appeal or application, expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens."
9. Counsel for the appellant has laid much stress on the judgment in the case of Muhammad Shareef supra passed by a learned Single Judge of the Lahore High Court, which besides being persuasive in nature, with respect, has also incorrectly placed reliance on the Judgment of the Hon'ble Supreme Court in the case of Fateh Ali Khan supra as the procedure for filing Civil Petition for Leave to Appeal before the Hon'ble Supreme Court is governed by the Supreme Court Rules itself, whereas, the Supreme Court Registry is never closed for receiving petitions and appeals during vacations and on the contrary the procedure for filing of appeals is regulated by the Sindh Chief Court Rules (Original Side) and the Notifications issued thereunder. The practice as is prevailing before this Court is that if the period of limitation for filing any case is expiring during vacations then the office receives such cases on the first opening day without raising any objection as to limitation and the benefit of Section 4 being statutory in nature is granted to all such cases.
The contention so raised on behalf of the appellant appears to be misconceived in this regard and is hereby repelled. Similar are the facts in the case of Juma supra wherein a Civil Petition for Leave to Appeal was filed before the Hon'ble Supreme Court after expiry of limitation period and the delay which had occurred was sought to be explained on behalf of the petitioner on the ground that as the Hon'ble Supreme Court was closed for long vacations, the petition was filed on the first opening day of the Court and was within time. We are of the view that both these judgments heavily relied upon by the Counsel for the appellant are not relevant as the facts of instant case are materially different, hence of no help to the case of the appellant.
10. On the contrary the Hon'ble Supreme Court in the case of Fazal Karim Supra has put the controversy in hand at naught in the following manner;
9. Having careful considered the contentions raised by the Counsel for the parties; we are convinced that the view taken by the learned Judge of the High Court was unexceptionable. From the plain reading of Section 4 of the Limitation Act, it becomes abundantly clear that the period during which the Court remains closed on account of vacations has to be excluded for the computation of limitation and the notification cannot be taken precedence- over the statutory provision. Even otherwise, we find that there is no conflict between the notification and the provision contained in section 4 of the Limitation Act. According to the notification, the Office was to remain open for receipt of petitions from persons who might choose to file. Surely, the word "Office" as used in the notification is not anonymous with "Court" as used in Section 4 of the Limitation Act.
The Court may be closed and yet the Office might still be open. Even otherwise; the notification merely gives the petitioners an option to file petitions. Such an option cannot be construed so as to take away a statutory right. Even otherwise, it is doubtful that the word "Petition" as used in the notification will cover a memorandum of appeal. I am therefore, clearly of the view that the appeal even though filed during the vacations could be filed on the reopening of the Court and was, therefore, well within time. The authorities relied upon by the appellants are in point and the position is well settled. The only authority pressed into service on behalf of the appellants Nuchtyappa Mudali and others v. Ayyasami Ayyar referred to earlier proceeds on distinguishable facts. In that case the relevant Notification was in the following terms:- "The Courts will be open between the hours of 4 and 5 p.m. On Tuesdays and Fridays during the recess for the reception of plaints, petitions and other miscellaneous papers."
' The difference in the terminology employed in the two Notifications is very material. The Notification pressed into service on behalf of the appellants uses the word "Office" which as stated earlier is not the same thing as "Court".
11. In so far as the contention of the learned Counsel for the appellant with regard to recalling of the Order/Judgment dated 31.8.2010 on the premise that the same could only have been recalled under Order IX, Rule 13 or Section 12(2), C.P.C. Is concerned, we may observe that it was in fact the act of the Court whereby the issue of limitation was taken note of and the Judgment dated 31.8.2010 was passed whereby the Suit was dismissed on the ground of limitation. Firstly we may observe that it is a trite law that nobody should he prejudiced by the conduct or act of the Court and once such fact was brought to the notice of the Court, through an application, be it under Section 151, C.P.C. It becomes the responsibility of the Court to see as to whether a litigant has been prejudiced by the act of the Court or not. It is in fact the pith and substance of the application and the case which matters and not the provisions under which the application has been filed. In the instant matter, it is not relevant that the application has been filed under Section 151, C.P.C. And not under Section 12(2), C.P.C. But what is relevant is the gist and the issue before the Court. The learned Single judge has treated such application as a review and rightly so, as it is a settled proposition that as long as the power to hear and decided a matter vests in a Court, mere reference to a wrong provision of law, for invocation of that power is not a bar to the exercise of that power (Pakistan Fisheries Limited, Karachi v. United Bank Limited PLD 1993 SC 109). The respondent No.1 had sufficient cause to file such application and bring it to the notice of the Court that while passing Judgment dated 31.8.2010, the Court had misdirected itself in dismissing the Suit on the ground of limitation by ignoring the fact that the provision of Section 4 of the Limitation Act would be applicable in the instant case, therefore, this contention also being misconceived is hereby repelled as well.
12. In view of hereinabove facts and circumstances of the case, we are of the view that the impugned order being correct in law is unexceptionable and does not require any interference by this Court, B whereas, the appellant has failed to bring on record any illegality in the impugned order which could compel us to exercise any discretionary relief in favour of the appellant.
Accordingly, instant appeal being misconceived in facts and law is hereby dismissed.