' The brief facts of the case are that the petitioner who was an employee of the Government of Pakistan was recommended to be compulsorily retired from service. Such an initimation was given to him by letter dated 30th April, 1959. Appeal preferred against the said order was also dismissed and the petitioner by letter dated 23rd June, 1959, was informed that he had been retired from the service on proportionate pension, for inefficiency. Certain other representations etc. Were made but it is not necessary to refer to the same for the purposes of this case.
2. Petitioner challenged the said orders by filing Suit No. 240 of 1969 on 10th December, 1969, in the Court of the With Civil Judge First Class, Karachi.
3. On 15th August, 1973 during the pendency of the above suit, Service Tribunals Ordinance No. XV of 1973 was promulgated whereby vide subsection (2) of section 3 it was .Provided that no Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including disciplinary matters. Section 4 laid down that any civil servant aggrieved by any official order whether original or appellate made by a departmental authority in respect of any of the terms and conditions of his service may, within 30 days of the communication of such order to him, prefer an appeal to the Tribunal having jurisdiction in the matter.
' And by section 6 of the said Ordinance of 1973 it was provided that :- "All suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of this Ordinance shall abate forthwith."
4. In view of the provisions of section 6 of the abovementioned Ordinance No. XV of 1973 the learned Civil Judge by order passed on 6th November, 1973, dismissed the suit as having abated.
5. The petitioner then being entitled to prefer an appeal in terms of section 4 of Ordinance No. XV of 1973 preferred Appeal No. 367 (K) of 1974 before the Federal Service Tribunal, Islamabad.
Before the said appeal could be decided, Ordinance No. XV of 1973 was amended by Service Tribunals (Amendment) Act No. XXXI of 1974, hereinafter referred to as the Amending Act of 1974.
Relevant for the purpose of this case is clause 'C' which was added to section 4 providing that : "No appeal would lie to a Tribunal against an order or decision of a departmental authority made at any time before 1st July, 1969."
Another important amendment was made in section 6 whereby for the words "commencement of this Act prefers an appeal to the Appellate Tribunal" the words "establishment of the appropriate Tribunal, prefer an appeal to it," were substituted. This Act of 1974 was promulgated on 6th May, 1974.
6. The effect of the amendments noted above was that the jurisdiction of the Service Tribunal was taken away in respect of orders or decisions of a departmental authority made at any time before 1st July, 1969. Consequently the appeal filed by the petitioner before the then Federal Services Tribunal referred to above, was dismissed on the ground that cognizance of the said appeal could not be taken and that the same was no longer entertain able by the sail Tribunal.
7. In the circumstances the petitioner on 27th January, 1975, moved the application dated 24th January, 1975, under Order XLVII Rule 1, C. P. C. For revival on the suit which had been dismissed as having abated under section 6 of the Ordinance No. XV of 1973 of 6th November, 1973.
' It may be pointed out here that the original suit filed by the petitioner was renumbered as suite No. 182 of 1972 of the Court of III Additional District Judge Karachi. The learned Judge after hearing the parties counsel, by order passed on 30th April, 1975, dismissed the said application.
8. The above order has now been challenged by the petitioner by moving this petition under section 115, C. P. C.
9. The question which requires consideration is, whether the order dated 6th November, 1973, passed by the learned Civil Judge whereby it was held that the suit stood abated under section 6 of the Ordinance No. XV of 1973 and thus dismissed could be set aside by moving an application under Order XLVII, rule I. C. P. C. Or otherwise under any other provision of law.
' In order to appreciate the question of law involved, it would be relevant to refer to the observations of the Honourable Supreme Court in the case of State v. Dosso (1) wherein the words "all applications and proceedings in respect of any writ which is not so provided for shall abate forthwith," appearing at the very end of subsection (7) of the Article II of Laws Continuance in force order promulgated by the President on 10th October, 1958, came up for consideration.
10. While construing the words "shall abate forthwith" the Honourable Supreme Court proceeded to observe as follows :- "The expression abates and 'abatement' does not appear to be capable of being defined generally with any exactness. They are used in a number of legal contexts and their effect in each case may be gauged with precision, either from the context or from the terms of the relevant statute. The incidents of abatement vary from law to law, one prominent feature of abatement is that the proceedings may be revived upon the happening of certain events, and the performance of certain conditions, so that it might be thought that in such cases, abatement is not a final conclusion, but has the effect of keeping the matter in a state of suspense pending certain developments."
' The Hon'ble Supreme Court while observing that the conception of abatement under examination in the case, every circumstance combined to create the impression that the provision was for an immediate and peremptory cessation, beyond hope of recall, proceeded to refer to the ordinary concept of the procedural law and held.
"The common cases of abatement in the Civil Law arise upon the death or bankruptcy of the party.
Or upon the devolution of the estate in dispute. In all these cases, there is provision for substitution of parties and for the proceedings to continue thereafter."
' The Hon'ble Supreme Court further held as follows :- "In the law of election petitions, a petition abates upon the death of sole or the last surviving petitioner, but it may be revived by a competent person entitled to peruse it. In affiliation proceedings, i.e. Proceedings commenced by a mother to obtain maintenance for an illegitimate child from the putative father it has been held that the proceedings abate upon the death of the mother because only the mother is competent to commence them and equally they abate upon the death of the putative father. In these cases, the abatement is final. Proceedings in lunacy are abated by the death of the patient, and they remain so until a personal representative has been duly constituted, when they may be revived."
11. I would also like to refer here to the case of Khan Faizullah Khan v. Government of Pakistan (2) wherein at page 296 the Honourable {{FOOT NOTE}}
(1) PLD 1958 SC 533 (2) PLD 1974 SC 291 {{FOOT NOTE}} ' Supreme Court as to the jurisdiction of the Service Tribunals in respect of order; passed before 1st July, 196Q, observed "It would appear, therefore, that the "controversy arising in the instant case is not amenable to the jurisdiction of either Tribunal, as it arose much before the prescribed date namely, the first of July, 1969."
' The next case to which reference may be made is the case of Islamic Republic of Pakistan v.
Amjad Mirza (1). The Honourable Supreme Court in the said case held :-- "It cannot be disputed that in the instant case the order of compulsory retirement of the respondent having been made before 1st July. 1969, the Tribunal did not have the jurisdiction to deal with the matter."
12. Reference may now be made to the case of Masud Ahmad v. Pakistan (2) where while considering the effect of section 6 on abatement of the suit and repelling the contention raised that the proceedings could continue in the Civil Court despite the commencement of the Ordinance the Honourable Supreme Court held :- "Indeed the language of the statute is peremptory and the proceedings in the suit abated ipso facto by operation of law and therefore no formal order of the Court were necessary to terminate the proceedings before it."
13. In the light of the above discussions the conclusions which follow are :-
(i) That on coming into force of Ordinance No. XV of 19 73 (followed by Act No. LXX of 1973) the plaintiff's suit abated forthwith, though the order recording the abatement was passed on 6th November, 1973.
(ii) That the order of compulsory retirement of the petitioner made in 1959 ceased to be amenable to the jurisdiction of the Service Tribunal, on coming into force of the amendment brought about on 6th May, 1974, by the Service Tribunal (Amendment) Act No. XXXI of 1974 whereby sub-clause 'C' was added after paragraph (b).
14. This brings us to the crucial issue as to the competency of the application filed for review/setting aside the abatement of suit which had taken p1ace on coming into force of the Ordinance and declared to have abated as such by order passed on 6th November, 1973.
15. Mr, A. K. M. Idris, the learned counsel for the petitioner, stated that in the Code of Civil Procedure there is no express provision under which the petitioner could move an application for setting aside abatement of suit which took place in the circumstances of the case. It was contended that as a result of the amending Act of 1974 the order passed on 6th November, 1973, by the Civil Court declaring the plaintiff's suit as having abated should no longer be deemed to be a valid order and in the absence of any other remedy provided by law the petitioner was justified to have moved the Court by submitting an application for setting aside the abovementioned order passed on 6th November, 1973, by way of review and that otherwise it may be treated as an application for setting aside the abatement of the suit. Placing reliance on the case of Mirza Iftikhar v. {{FOOT NOTE}}
(I) PLD 1977 SC 182 (2) PLD 1976 SC 195 {{FOOT NOTE}} ' Nirza Bashir (1) the learned counsel contended that even in the absence of any express provision in the Code of Civil Procedure the learned trial Court ought to have declined his to justice, equity and good conscience in exercise of its inherent powers under section 151, C. P. C.
16. Mr Noorul Hassan the learned counsel for the respondent's however submitted that the application by the petitioner before the trial Court be it treated as an application for review under Order XLVII, Rule 1. C P. C. Or otherwise for setting aside the order of abatement of the suit, was barred by time. The learned counsel for the petitioner conceded that the order sought to be reviewed or set aside, was passed on 6th November, 1973, and as such the application filed on 27th January, 1975, was barred by time as application for review could be filed within 90 days under Art. 124, and for setting aside abatement time prescribed is 60 days under Article 171 of the Limitation Act.
17. To overcome the abovementioned obvious difficulty the petitioner placed reliance on application dated 24th January, 1975, filed on 27th January, 1975, under section 5 of Limitation Act for condonation of delay, alongwith application under Order XLVII, rule 1, C. P. C. Which itself is dated 24th January, 1975, and was filed on 27th January, 1975.
' We have already noted above that after the order was passed on 6th November, 1973, by the Civil Judge, the petitioner had filed appeal before the Service Tribunal at Islamabad but in view of amending Act. No. XXXI of 1974 the same was dismissed on 1st January, 1975. The application for review or revival of the suit thereafter was filed by the petitioner on 27th January, 1975. Thus between the dismissal of the appeal and the filing of the above application in the Civil Court there occurred a delay of 26 days, which has remained unexplained. It is by now well-settled law that a party who seeks indulgence and condonation of delay under section 5 of the Limitation Act has to account for and explain the delay of each day. In this particular case a perusal of the application under section 5 of Limitation Act and the affidavit filed in support thereof would show that the plaintiff not only failed to give any sufficient cause for not filing the application immediately after coming into force of Service Tribunals (Amendment) Act No. XXXI of 1974 on 6th May, 1974, but remained contended with perusing his appeal before the Tribunal till it was dismissed on 1st January, 1975, as untenable.
' Even after the dismissal of the appeal as above, the petitioner did not act with due diligence. The application for review/revival of the suit prepared on 24th January, 1975, was filed on 27th January, 1975. The delay between 1st January, 1975, and 27th January, 1975 (for 26 days) has remained totally unexplained. Neither any explanation was offered nor was any attempt made to explain this inordinate delay.
' In the circumstances discussed above I find that no reasonable or sufficient cause has been made out to condone the delay.
18. The learned counsel for the petitioner, then submitted that it was a fit case for exercise of inherent powers of the Court to review/ revive the suit as according to him order of the trial Court dated 6th November, 1973, whereby the suit was declared to have abated in view of Ordinance No. XV of 1973 was found to be erroneous in view of change in law (Act No. XXXI of 1974). {{FOOT NOTE}}
(1) PLD 1953 Lah. 1 {{FOOT NOTE}} The arguments advanced as above cannot succeed, as there Is no room for the exercise of the inherent powers by the Court when there exists an express provision negating the claim. The inherent powers are meant to be invoked to meet ends of justice and prevent abuse of the process of the Court, and are not to be exercised in aid of a party who was negligent. I have already held above that the petitioner had not pursued the matter with due diligence and that the application filed by him was barred by time thus liable to be dismissed. In the circumstances of the case the question of exercise of inherent powers does not arise.
19. The upshot of the above discussion is that no sufficient cause has been made out within the meaning of section 115, C. P. C. To interfere with the order passed by the learned trial Court. The petitioner was retired in 1959 and it would be abuse of the process of the Court to respondent the matter now after lapse of almost 23 years. The revision petition is accordingly dismissed. There shall however be no order as to costs.