1. I intend to dispose of the above two applications by this common order as the facts and parties are the same. Application (CMA 4697 of 1986) under Order IX, Rule VII read with section 151 is for recalling the order dated 1-4-1986 while application (CMA 4698 of 1986) under section 5 Limitation Act is for condoning the delay.
2. The facts leading to the filing of the above applications are that the plaintiff filed above suit for cancellation of sale-deed and specific performance, permanent injunction and declaration against Commander AA. Shaikh and 2 others. The summons was issued on 30-11-1985 for 15-1-1986.
3. The summons was returned served on defendants 2 and 3 but the summons returned unserved on defendant No. 1. The suit was adjourned to 24-2-1986 for service of summons on defendant No. 1. A diary sheet of 24-2-1986 shows that the summons was not issued as cost was not paid. The suit was again adjourned to 1-4-1986. It was ordered that cost to be paid within three days. Again it seems that cost was not paid. A perusal of the diary sheet shows that none was present on behalf of the plaintiff. There was no application for extension to pay cost. The plaint was struck off against defendant No. 1 under Rule 128 of Sind Chief Court Rules (O.S.).
4. The above applications were presented on 20-10-1986. Mr. S. Mushtaq Ahmed Riazi Advocate has filed his own affidavit in support of the applications. The grounds for recalling the order dated 1-4- 1986 are (1) "due to oversight he could not see the list for 1-4-1986" and (2) "the defendant No. 1 is aware about the proceeding but he avoided the service deliberately and he was considering to make an application under Order 5, Rule 20 for substituted service" and (3) "he came to know about this fact on 5-10-1986 when he sate the file to verify the issues". The defendants 2 and 3 resisted the applications.
5. I have heard the learned counsel for the parties.
6. Mr. S. Mushtaq Hussain the learned counsel for the defendants 2 and 3 urged that as the fresh summons was not applied within the period of three months from bailiff's return of summons unserved on the defendant No. 1, the law requires that the Court shall dismiss the suit.
7. Admittedly between the return of the bailiff of the summons unserved on 1-12-1985 or when the suit was fixed before the Additional Registrar (O.S.) on 15-1-1986 and the application for recalling the order more than six months had elapsed.
8. Order 9 Rule 5, C.P.C. Reads as under:-- "5. Dismissal of suit where Plaintiff, after summons returned unserved fails for three months to apply for fresh summons.--(1) Where after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiff fails, for a period of three months from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of fresh summons the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that:-- (a)he has failed after using his best endeavours to discover the residence of the defendant who has not been served, or (b)such defendant is avoiding service of process, or (c)there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit.
9. (2)In such case the plaintiff may (subject to the law of limitation) bring a fresh suit."
10. Order 9, Rule 5 provides a rule of limitation.
11. Its command is that when the summons are returned unserved, plaintiff's failure to apply for a fresh summons within three months from the date of such return of unsuccessful service will entail the penalty of dismissal of his suit. When that default occurs the Court is left with no discretion but "shall make an order" that the suit be dismissed". The limitation, therefore, is three months. If within those three months, the plaintiff applies for fresh summons, he has to satisfy the Court that either
(a) he has failed after using his best endeavours to discover the residence of the defendant who has not been served, or (b) such defendant is avoiding service of process, or (c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit. If he does so to satisfy the Court, the Court may extend the tune.
12. The argument, therefore, is that the application for recalling the order was made in this case more than three months after the bailiff's return, the suit must be dismissed under Order 9, Rule 5 of the Code.
13. Mr. Mushtaq A. Memon the learned counsel for the plaintiff contended that Rule 129 of Sind Chief Court Rules does not provide any limitation period. The learned counsel further contended that Order 9 Rule 5 of the Code on proper construction means that the inaction for the three months has no doubt to be explained on the grounds stated therein but the application need not be made within that three months.
14. Reverting to the first contention of Mr. Memon that the procedure regulating the processes is said to be laid down by the Sind Chief Court Rules (O.S.) in Chapter VI. The contention is that the procedure prescribed therein is to be the whole law on such procedure as applicable to the Original side of this Court. It is contended that such procedure is not regulated by Order 9 Rule 5 at all. Now, by Rule 3 of Order XLIX, it is found that Order 9 Rule 5 of the Code is not one of the Rules excluded from the original side of the High Courts. Normally, therefore, Order 9 Rule 5 of the Code prima facie is applicable to the ordinary original civil jurisdiction of this Court.
15. But the contention of Mr. Memon is that the rules of this Court overrule the first Schedule of the Civil Procedure Code including Order 9 Rule 5. Section 117, C.P.C. Will apply to the High Courts, makes special exceptions in favour of these High Court Rules by saying save as provided in this part (9) or in part (10) or in rules'.
16. Section 120, C.P.C. In part 10 grants powers to the High Courts to make rules to `regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit', the only limitation herein set out being that such rules shall not be inconsistent with the letters patent which does not mean that they cannot be inconsistent with the Code.
17. PLD 1970 SC 1) the Supreme Court held that the. High Court, though it exercises of civil jurisdiction, is not a civil Court. This was the view taken by a Special Bench of the Calcutta High Court in ILR 2 Calcutta 93. "Nevertheless, the provisions of the Code of Civil Procedure, in view of section 117 thereof, apply to High Courts. This section declares that the provisions of the Code shall, save as provided in Parts IX and X of the Code and the Rules embodied therein or made thereunder, apply to High Courts. Sections 16, 17 and 20 of the Code, according to section 120 occurring in part IX, are inapplicable to a High Court in the exercise of its original civil jurisdiction. Under section 129 occurring in Part X of the Code, the High Court can make rules not inconsistent with the Letters Patent for the purpose of regulating its own procedure in the exercise of its original civil jurisdiction.
18. The submission of Mr. Memon was that Chapter VI of the Chief Court of Sind on the original side does not lay down any limitation of three months as in Order 9 Rule 5, C.P.C. Rule 129 says that a plaint or miscellaneous application struck off the file under the preceding rule 128, may be restored to the file, as of the date on which it was originally filed on the application of the ;plaintiff or applicant and on sufficient grounds being shown to the satisfaction of the Registrar (O.S.).
19. Therefore, the contention was that Rule 129 dispenses with the limitation of three months as provided in Order 9 Rule 5 of the Code. In support of his contention the learned counsel invited my attention to the Scheme of conduct of suit starting from the issue of summons and is given a special procedure in the Sind Chief Court Rules, on the original side, which are m material particulars different from the provisions contained in the Civil Procedure Code.
20. There is some force in -this argument. I take the matter out of the operation of Order 9 Rule 5. In coming to this contention, I am persuaded by the language of section 117, C.P.C. Which says save as provided in the rules made by the High Court either in Part IX or Part X, including section 129, C.P.C. Relating to the rules making power of the Chartered High Courts in respect of Civil Procedure.
21. The High Court could have made a rule dispensing with the three months limitation of Order 9 Rule 5, C.P.C. Either completely or by introducing any other special limitation. But the Sind Chief Court have done so. I have already reproduced Rule 129 in the earlier part of his Order. Rule 129 expressly provides that an application and sufficient grounds being shown to the satisfaction of the Registrar. I find that the Rule of the original side by necessary implication is that the three months period should not be applied to the procedure on the original side. I am of the opinion that Rule 129 has expressly or impliedly excluded the operation of Order 9 Rule 5.
22. The facts set out in the application that the defendant No. 1 is aware of the proceeding and is avoiding the service. The grounds for recalling of the order dated 1-4-1986 are that the case list of 1-4-1986 could not be checked due to oversight and the defendant No. 1 is aware of the proceedings. The defendants 2 and 3 have not specially denied these facts in the counter-affidavit.
23. Mr. Memon submitted that the second suit is not barred by the provisions of Order 9 Rule 5 and Rule 129 of the Sind Chief Court Rules (O.S.). The plaintiff can file an application under Order 1 Rule 10(2) for impleading him as a party. On facts 'like these, it is the most proper case on which such extension should be granted or order dated 1-4-1986 should be recalled, so that the course suggested by the learned counsel for the plaintiff that only suggests a multiplicity of proceedings but whose ultimate results are bound to be the same. Justice demands, therefore, that the result should be produced without that multiplicity of useless proceedings.
24. For the aforesaid reasons the order dated 1-4-1986 is hereby recalled. The application is accordingly allowed but subject to payment of Rs. 1,000 as costs. The plaintiff is directed to pay the process within three days of this order.