1. ' MAMOON KAZI, J--- This High Court Appeal under section 3 of the Law Reforms Ordinance, 1972 is directed against the order passed by the learned Single Judge of this Court in Chambers, dated 11- 1-1990.
2. ' The facts of the case briefly stated are that the respondent No.1 in this case filed an application under Order 11, rule 12, C.P.C. Seeking directions from the Court to direct the appellant to make discovery on oath of all the documents which were or had been in possession and power of the appellant relating to the matter in question. The Additional Registrar passed an order dated 14-10- 1987 calling upon the appellant to file affidavit or documents within three weeks. On 21-12-1987 the appellant made an application for extension of time by four weeks to enable him to file requisite affidavit which was granted by the Additional Registrar. However, no such affidavit was filed.
3. Respondent No.1 then made an application under Order 11, rule 21, C.P.C. Requesting for dismissal of the appellant's suit as he had failed to comply with the orders of the Additional Registrar. On 17-1- 1988 Mr.Rao M.Shakir Naqshbandi the appellant's counsel undertook to file documents within three days and, in view of such undertaking the application of the respondent was dismissed as not pressed. Thereafter the case came up for hearing on 23-3-1988 for further orders as it was pointed out that no affidavit of documents had been filed by the appellant. Consequently, the following order was passed by the learned Single Judge who then heard the case.
4. "None present for the plaintiff. Defendant Mohammad Munir Khan present. On 14-10-1987 the plaintiff was directed to file affidavit of documents within three weeks. He failed to file the documents or affidavit. On 17-1-1988 learned counsel for the plaintiff undertook to file documents within three days, but he has failed to file the documents. As such the suit is dismissed for non- prosecution under Order XI, Rule 21, C.P.C.."
5. ' The appellant then filed an application before the learned Single Judge under Order 47, rule 1 read with section 151, C.P.C. Praying for review of the said order dated 20-3-1988. This application has been dismissed by the learned Single Judge as not maintainable and hence the present appeal.
6. ' We have teard the learned counsel for the appellant and the learned counsel for respondent No.1.
7. None has appeared on behalf of the other respondents. The main contention of the learned counsel for the appellant is that when the order dated 20-3-1988 was passed by the learned Single Judge in Chambers the appellant had in fact filed an affidavit of documents in the office of this Court on 20-1-1988 and therefore it was the office which was in error while not placing such affidavit before the Court on the said date of hearing. In view of this factual position the contention of the learned counsel is that the Court while invoking its inherent powers under section 151, C.P.C.
8. Could either recall or review such order. The learned counsel has further pointed out that the period of limitation for filing such an application would be governed by Article 181 of the Limitation Act which provides for a period of three years for filing such application. Consequently, according to the learned counsel, the learned Single Judge was in error while holding that the application filed by the appellant was not maintainable.
9. ' We would like to point out that the learned Single Judge was mainly impressed by the fact that rule 75(3) of the Sindh Chief Court Rules (OS) makes it obligatory for a party filing an affidavit in the Court to serve a copy of such affidavit on the opposite side. Rule 75(4) further provides that no affidavit shall be used at the hearing unless a copy thereof is served on the other side and rule 75(5) further provides that where an affidavit is not filed and served as aforesaid, it shall be filed separately in record of the case until leave of the Court has been obtained under sub-rule (4).
10. Consequently, according to the learned Judge, the office rightly did not put up the affidavit filed by the appellant before the Court. The learned Judge it appears was also impressed by the fact that Article 162 of the Limitation Act provides for a period of 20 days for filing an application for review of a judgment of the High Court in the exercise of its original jurisdiction and such period of limitation has to be computed from the date of the decree or order. As the application filed by the applicant had been filed beyond such period the learned Judge was of the opinion that the said application was time-barred. It is pertinent to point out that no application under section 5 of the Limitation Act was filed by the appellant before the Court.
11. We would like to point out that the provisions of rule 75 would apply to an affidavit which may be filed in support of an application or a counter-affidavit or an affidavit-in-rejoinder. The provisions of rule 75 therefore do not appear to be applicable to affidavit which may be filed under Order 11 rule 21, C.P.C. It is pertinent to point out that there is no controversy on the point that an affidavit in compliance with the order of this Court had been filed by the appellant on 20-1-19&S. Since this affidavit was not put up before the Court by the office the learned Judge was pleased to dispose of the case under Order 11, rule 21, C.P.C. . This order, in our opinion, could be recalled by the learned Single Judge by invoking his inherent powers under section 151, C.P.C. Reference in this regard may be made to the case of B. Mohanlal & Co v. A. Yolibai AIR 1932 Born. 271 wherein it was held that an application to set aside an order under Order 11, rule 21, C.P.C. Can be made to the Court under its inherent jurisdiction under section 151, C.P.C.. It may be pointed out that although, as pointed out earlier, that Article 162 of the Limitation Act provides for a period of 20 days for filing an application for review but for an application under section 151, C.P.C. No period of limitation has been specifically provided in the Limitation Act. Under such circumstances the period of limitation for filing an application under section 151, C.P.C. Would be governed by Article 181 of the Limitation Act which is the residuary article. In this regard the learned counsel for the appellant has placed reliance upon the case of Mst.Nigar Bibi v. Salahuddin Khan PLD 1990 SC 76 wherein it has been held that in case of an ex parte order passed by the High Court against the respondents who were not served, an application under section 151, C.P.C. For recalling such order would be competent for which the period of limitation would be three years as prescribed by Article 181 of the Limitation Act.
12. It has been further held that such an application would not be governed by Article 162 of the Limitation Act. We are of the view that in the present case also Article 162 of the Limitation Act would not be attracted because, as has been pointed out earlier, when the order, dismissing the case under Order 11, Rule 21, C.P.C., for non-prosecution was passed, the appellant had already filed an affidavit in the concerned office of this Court which fact was not brought to the notice of the Court at the time of the passing of such order. Therefore, such order, in our We are consequently of the view that the application filed by the appellant for recall of the order of this Court dated 20-3- 1988 was competent and the same was not liable to be dismissed as not maintainable.
13. ' In the result, we allow this appeal and recall the order dated 11-1-1990 passed by the learned Single Judge and remand the case for further proceedings. The parties are left to bear their own costs in view of the questions raised.