SALAHUDDIN AHMED, J.--This petition appears to have been barred by 93 days.
2. The impugned order is dated the 23rd of October, 1972. The present petition was filed on the 30th of March, 1973. The petitioner has sought to get the benefit of the period he spent in prosecuting a review application from the impugned order. The review application was filed on the 6th of November, 1972, and it was rejected on the 13th of March, 1973. On the same day the petitioner applied for s certified copy of the order rejecting the review petition, and he obtained the certified copy on the 29th of March, 1973. The petitioner claims that he is entitled to a deduction of the period between 6thl November, 1972 and the 23rd of March, 1973, for the purpose of filing the present petition. This is a question of which require looking into.
3. It appears that during the pendency of the petitioner's writ petition, respondent Rao Mohammad Abdul Sattar Khan, died on the 7th of June, 1971 and the petitioner made an application for substitution under Order XXII, Rule 4 of the Code of Civil Procedure on the 18th of November, 1971.
The learned Single Judge of the High Court held that as the application for substitution was made beyond the period of 90 days as prescribed under Article 177 of the Limitation Act, it had become barred with the result that the writ petition stood abated.
4. It has been contended before us that Article 177 of the Limitation Act applied only to a suit or appeal under the Code of Civil Procedure and therefore it did not apply to a Constitution Petition. It is submitted that as there is no Article of the Limitation Act that specifically applies to a Constitution Petition, the residual Article 181 applies, and if that be so the application for substitution had not become barred.
3. Mr. S.M. Zafar has entered a Caveat on behalf of the respondents. He has contended that the Constitution Petition must be regarded as a suit within the meaning of the Code of Civil Procedure and therefore Article 171 of the Limitation Act applies. In support of this contention he has cited the case of Hussain Bakhsh v. Settlement Commissioner and others, quoted in PLD 1970 SC 1. In the case under report, the question for consideration was whether the High Court had power to review an order made by him in exercise of its power under Article 98 of the late 1962 Constitution of Pakistan. This Court held that apart from the High Court's power to correct, errors apparent on the face of the record in exercise of its inherent jurisdiction, the High Court had power under the Code of Civil Procedure 1908, to review its own order made in writ jurisdiction in a civil matter. A proceeding under Article 98 of the Constitution concerning civil matter being a civil proceeding relating to the High Court's original civil jurisdiction and section 114 of the Code conferring power of review not having been made inapplicable to the High Court in the exercise of the original civil jurisdiction, the power to review an order made by the High Court in its writ jurisdiction would be available to it under the said section 114.
6. In the case of Noor Ahmad and others v. Chattomal Gurmukhdas and others, reported in AIR 1934 Sind 36, in the case of an application for leave to appeal to the Privy Council it was held that Order XXII of the Code of Civil Procedure did not apply to the applications for leave to appeal to the Privy Council. It was observed that prima facie neither Art. 176 nor 177 of the Limitation Act applied to a case where the deceased was neither plaintiff of an appellant nor a defendant or a respondent, but was merely an applicant or opponent, in a proceeding which was instituted as a preliminary step to the filing of a suit or an appeal.
8. A question has also arisen whether the Law Reforms Ordinance, 1972, applies to the present case and whether in view of sub-rule (3) added to Order XXII, Rule 4 of the Code of Civil Procedure there could be no abatement of the writ petition even though the application for substitution had been made beyond the period of, limitation. In this connection, the case of Ghulam Haider v. Mst. Raj Bhari and others reported in PLD 1973 Lah 372 has been cited. In the case under report while dealing with a question of abatement in a second appeal, a learned Single Judge of the Lahore High Court relying on a decision of this Court in PLD 1969 S.C. 599 observed that the appeal had abated after the lapse of ninety days of the death of Ghulam Haider i.e. Much before the Law Reforms Ordinance XXI of 1972, came into force, and that till such time as the abatement was set aside, the petitioners had no right to continue the appeal as legal representatives. The respondents had acquired a corresponding right to defeat the petition which had been refused on merits. If the alteration in procedure was admitted to be applied retrospective to the pending petition, could cause great injustice to the respondents so as to deprive them of the right which had accrued to them before the change came in.
9. All these are legal questions which merit consideration. It accordingly grant leave to appeal.
Security for costs in the sum of Rs.1,000 shall be furnished by the appellant.
The status quo order as issued earlier will continue to remain in force until the disposal of the appeal.