1. ' These applications, under Order 37, rule 4, C.P.C. And Order 47, rule 1, C.P.C., respectively, to recall and review the order dated the 16th August, 1993, whereby conditional leave to appear and defend the suit was granted to them, and the decree dated the 28th November, 1993, which was passed against them in consequence of their failure to furnish security, have been made by defendants Nos.6, 8 and 9.
2. ' Neither of the learned counsel have advanced any argument with regard to the maintainability of the application for review, but in view of the decision in the case of Pak Libya Holding Co. Ltd. v.
3. Multitrade (Pvt.) Ltd. 1988 CLC 1648, I consider it necessary to see whether this Court, acting as a Special Court under the Banking Companies (Recovery of Loans) Ordinance, 1979, has the power to review its orders and decrees. In that case, it was held that there is no provision in the aforesaid Ordinance for review of any order passed by a Special Court and, therefore, its orders were ,not open to review. Reliance was placed on the cases of Hussain Bux v. Settlement Commissioner PLD 1970 SC 1 and Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94.
4. ' In the case of Hussain Bux v. Settlement Commissioner it was held that the provisions of C.P.C., except those that were excluded, applied, by virtue of section 117, of the Code, to High Courts; that section 114 thereof was not excluded; and that a proceeding under Article 98 of the Constitution concerning a civil matter being a civil proceeding relating to the High Court's original civil jurisdiction and section 114 of the Code of Civil Procedure conferring power of review not having been made inapplicable to the High Court in exercise of its original civil jurisdiction, the power of review an order made by the High Court in its writ jurisdiction will be available to it under section 114.
5. ' In the present case, section 3 of the Banking Companies (Recovery of Loans) Ordinance provides as follows:-- "The provisions of this Ordinance shall be in addition to and, save as hereinafter expressly provided, not in derogation of any other law for the time being in force."
6. The effect of section 3 is that the provisions of Civil Procedure Code continue to be applicable to Special Courts to the extent that they have not been ousted by the provisions of the Ordinance. See Muhammad Ayub Butt v. Allied Bank Ltd. PLD 1981 SC 359. The question, therefore, is whether the provisions of section 114, C.P.C. Have been exculded by anything in the Ordinance. Section 11 of the Ordinance, 1979 provides that subject to the provisions for appeal in section 12 no Court or other authority shall call or permit to be called in question any order or judgment of a Special Court.
7. There is, thus, finality attached to the orders and judgments of a Special Court; but that finality is only, it seems, qua a Court other than a Special Court for the prohibition in section 11 is addressed to a "Court" which is a Court other than a "Special Court" mentioned in the section. It would, therefore, appear that section 11 does not have the effect of ousting section 114, C.P.C. Because an application for review is to be heard by Special Court itself and not by any other Court. Section 12 of the Ordinance provides for appeals from orders and judgments of a Special Court while providing that no, appeal shall lie from an interlocutory order which does not dispose of the entire case. It is true that provision, alongwith the other provisions of the Ordinance, has been enacted with the object of ensuring expeditious hearing of cases by Special Courts but then the legislature itself having considered it sufficient, in order to achieve the object, to confer only a limited or restricted right of appeal, it is neither necessary nor proper, nor, indeed, possible, to construe the section as having excluded the application of section 114, C.P.C. To Special Courts. In fact, in view of the finality attached to the judgments and orders of Special Courts and in view of only a restricted right of appeal having been conferred, it is necessary that Special Courts should have the power to review its orders and judgments under section 114, C.P.C.
8. ' This Court, acting as a Special Court, therefore, has power, under section 114, C.P.C., to review its orders and judgments.
9. ' In the case of Muzaffar Ali v. Muhammad Shafi it was reaffirmed that a review is a substantive right and is always a creation of the relevant statute on the subject and it was held that, in view of the Explanation to subsection (4) of section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959, providing that in appeals to High Court under section 15(4) of the Ordinance, the provisions of Part VII of C.P.C., consisting of sections 96 to 112, will apply, the provisions of section 114, C.P.0 conferring power of review, "stand expressly and deliberately excluded". Consequently, it was held that the High Court had no power to review its orders passed in appeal under section 15(4) of the Ordinance. The case is obviously distinguishable from the present one.
10. ' Miss Sofia Saeed, the learned counsel for the plaintiffs submits, at the outset, that C.MA. 1107 of 1994 for review is barred by limitation because under Article 162 of the First Schedule to Limitation Act the period of limitation for an application for review of judgment by High Court in exercise of its original jurisdiction is 20 days from the date of the decree or order. According to her, the period of limitation in respect of the order which was passed on the 16th August, 1993, expired on 5th September, 1993, and the period in respect of the decree which was passed on the 28th November, 1993, expired on the 18th December, 1993 so that the application, filed on the 2nd March, 1994, is clearly barred by limitation. Mr. Kazim Hasan does not controvert the submission of Miss Sofia Saeed. It appears, however, that Article 162 has no application to the present case because this Court, while passing the impugned order and decree was acting as a Special Court under the Banking Companies (Recovery of Loans) Ordinance while Article 162 applies only where the judgment sought to be reviewed is that of the High Court passed in exercise of its original civil jurisdiction. The relevant Article is, in fact, Article 173 which prescribes the period of limitation for applications for review "except in cases provided for by Article 161 and Article 162". Article 173 provides for a period of 90 days from the date of decree or order for filing an application for review but that is of no avail to the defendants because even that period had expired before the present application was filed. The application for review is, therefore, clearly barred by limitation.
11. ' The grounds on which C.MA 1106/94, under Order 37, rule 4, C.P.C. Has been made are, inter alia, (i) that the defendants have no assets and were, therefore, unable to furnish security and that, consequently, the conditional leave granted to them was illusory, (ii) that, while granting leave to the defendants, the Court "placed reliance on the provisions of Article 113 of the Qanun-e-Shahadat Order and it was held that the plaintiff need not prove the guarantee because execution of the guarantee was not denied in the affidavits of defendants Nos. 6, 8 and 9" whereas the defendants, while not denying signing the guarantees, had not admitted execution thereof.
12. Assuming, without accepting, that the defendants have no assets, as alleged, and were therefore, unable to furnish security, it is no ground for setting aside the decree and granting the defendants unconditional leave to appear and defend the suit. Whether or not a defendant is to be required to furnish security as a condition of leave to appear and defend the suit depends on the nature of the defence set up by him and not on his ability, or the lack of it, to furnish security. In any event, it was not the case of the defendants that they were entitled to unconditional leave because they had no assets.
13. ' The second ground, viz. That in the order dated the 16th August, 1993, I "placed reliance" on Article 113 of the Qanun-e-Shahadat Order and "held" that the plaintiff need not prove the guarantee, is factually incorrect. In fact, I only recorded the respective arguments of the parties and observed that the point thus raised required consideration. That is evident from the following passage from the order:-- "It is contended that the provision of Article 17 (2) (a) of the Qanune-Shahadat Order, which requires that a document creating financial liability shall be attested as prescribed thereby, is mandatory and that the guarantee, admittedly, not having been attested in accordance with that provision, is void and not admissible in evidence because, as provided by Article 79 of the Order, no document which is required to be attested by any law shall be received in evidence unless it is so attested. Mr. Arfin, the learned counsel for the plaintiff, submits, on the other hand, that, notwithstanding the provisions of Articles 17(2)(a) and 79 of the Qanun-e-Shahadat Order, the plaintiff need not prove the guarantee because the defendant has not in his affidavits denied the execution of the guarantee. The argument is, prima facie, supported by Article 113 of the Qanun-e- Shahadat Order. The point thus raised requires consideration."
14. ' It may be observed that if, in fact, I had "placed reliance" on Article 113 of Qanun-e-Shahadat Order and 'held' that the guarantees need not be proved, no question of granting leave to the defendants would have arisen in view of the fact that the remaining defences set up by them were found to be without merit.
15. ' The third ground on which the application under Order 37, rule 4 is based concerns the question of period of limitation for the suit and that is also the ground relied on in the other application which is under Order 47, Rule 1, C.P.C.
16. ' The relevant averments in the plaint are that "the defendants Nos.2 to 9 furnished their guarantees to the plaintiff' (para. 12), and that the cause of action against "all the defendants" arose when "the defendants executed and delivered to the plaintiff the letters of guarantee mentioned in the plaint"
17. (para. 15 (d)). Copies of the guarantees, all dated the 30th December, 1984, have been annexed to the plaint. There is, admittedly, no plea in the plaint that the filing of the suit be treated as demand under the guarantees though, by the guarantees, the defendants have undertaken to make payment "on demand". It is, therefore, contended that the finding that the filing of the suit itself amount to demand is mistaken/erroneous because (i) "it is not permissible to ignore the pleadings and read some thing which is not even pleaded", (ii) for the purpose of limitation the time of filing the suit cannot be the same as "the time from which the period beings to run contemplated by the First Schedule to the Limitation Act, read with section 3 thereof, and (iii) if demand was condition for enforcement of the guarantees then demand was necessary before cause of action against guarantors could arise.
18. It is true that it is not permissible to ignore the pleadings or to read therein something which is not there. But, it is well-established that pleadings ought not to be strictly construed and, as observed by the Supreme Court in the case of S.M. Ayub v. Syed Yusuf Shah PLD 1967 SC 486, "The law of pleadings has never been strictly construed and rigorously applied in all its technicalities". The reason for the rule, apart from the anxiety of the Courts to do substantial justice, appears to be the quality of pleadings which is generally prevalent. The Privy Council had long ago held that the pleadings in Mofussil areas of India should not be construed very strictly. That rule was applied in the case of Deeplal and others v. Parshwanath Digambar Jain Vaidayalaya Mahamantri Shri Gulabchand AIR 1956 Raj.
171. The suit had been filed by the respondent and, in view of the description of the respondent as appearing in the title of the suit, it was contended, in effect, that the suit had been filed by Gulalchand who was not entitled to do so. The contention was rejected and it was held that careful perusal of the plaint showed that the suit had been filed by a registered society called Shri Parashwanath Digamber Jain Vaidayalaya and the name of its Secretary, Shri Gulabchand, had been mentioned because the plaint was signed by him. It was further held that the documents filed with the plaint showed that the Mahamantri, or the Secretary, was empowered to sue on behalf of the society and it was not disputed that Gulalchand was Mahamantri of the society. The pleading in question in that case was from the Court of District Judge, Udaipur, which was not a Mofussil area but the rule of construction of pleadings laid down by the Privy Council was applied because it was found that pleadings in that Court were no better than in Mofussil.
19. ' It has to be recognised that the standard of pleadings in this Court, better though it might be than in the Mofussil, leaves a great deal to be desired. More often than not, the pleadings lack precisions, are verbose and contain a great deal of matter which ought not to be there, and not in frequently omit to mention pertinent and relevant facts. The plaint in the present suit is a case in point. On the relevant pleas therein, set-out hereinabove, taken by themselves, the suit would be apparently barred by limitation as against the guarantors and yet the fact that no demand under the guarantees had been made was omitted. However, notwithstanding the carelessness in drafting the plaint, it is obvious that upon construing the plaint, along with the guarantees annexed thereto, it did not appear that any demand under the guarantees had been made and that, therefore, the plaint was not, ex facie, barred by limitation.
20. ' In N. Subromonian v. S. Kalyanarama and others AIR 1958 Ker. 243 the Court overlooked the omission in the plaint formally to rely on acknowledgement as a ground of exception for saving limitation because the relevant facts had been mentioned therein.
21. ' In Abdul Ghana v. Thai Development Authority PLD 1958 Lah. 69 a notice terminating his services was served on the plaintiff on the 28th April, 1954. The plaintiff's appeal to Chairman was dismissed and the order of dismissal was conveyed to him on 10th February, 1955 and he filed a suit on 16th July, 1955 for declaration that termination of his services was illegal. He pleaded in the plaint that the cause of action arose on the 28th April, 1954 , and the defendant took the plea that the suit was barred by limitation under section 75 (3) of the Thal Development Authority Act. The plaintiff then filed a replication stating that cause of action arose on the 10th February, 1955, when the order of dismissal of appeal was communicated to him. It was held:-- 'The learned trial Judge was quite right in treating the replication as part of, or as supplement to, the plaint. The provisions of Order VIII, rule 9, Order VI, rule 17 and Order XIV, rule 1, sub-rule (5) and rule 3, Civil P.C. Leave no room for doubting the correctness of this proposition. The Privy Council warned the Courts in the Indian Sub-Continent that pleadings ought not to be strictly construed.
22. The learned trial Court might also have added that in the plaint itself the plaintiff had stated in para. 8 that he had filed an appeal against the order of the Superintending Engineer but without avail. The only omission in the plaint was regarding the date of the rejection of the appeal and that was made good on replication. In the circumstances of this case it must be held that the plaintiff alleged the filing of his appeal, and its rejection as parts of the cause of action in his favour?
23. ' The case of Fatehali Shah and others v. Muhammad Bakhsh and others AIR 1928 Lahore 516 is similar to the present case. There Muhammad Hamid Shah gifted certain properties to his wife Mughlani Bibi. A part of these properties were earlier mortgaged by him and was in possession of the mortgagee. After the death of Mughlani Bibi, her sister, Rani, took possession of the property which was in the possession of the former and mutation thereof as well as of the property in the possession of the mortgagee was made in her favour on 21st October, 1913. The order of mutation was reversed by the Collector, on an appeal by other widows of Muhammad Hamid Shah, on 11th November, 1913. Appeal to the Financial Commissioner failed and, consequently, on 4th January, 1917, the name of Rath was removed from revenue records and the names of the aforesaid widows were substituted. Thereupon Rani was dispossessed by the widows. She then filed a suit for possession of the properties from which she was dispossessed and for declaration that she was the owner of the properties in the possession of the mortgagee. In the plaint the cause of action was not based on the reversal of entries in favour of the defendant and consequent dispossession of the plaintiff but it was definitely stated that the cause of action arose. On the 13th January, 1913. It was held:-- "Now, it is no doubt true that in the plaint the plaintiffs did not mention the date of the reversal of the entries in favour of the defendants nor of their dispossession by them, but the learned Senior Subordinate Judge has held that this took place on 4th January 1917. This finding is not attacked before us by the appellants. Moreover, the Civil Procedure Code nowhere provides that the plaintiff shall state in a separate paragraph of the plaint the date of the accrual of -the cause of action. All that it requires is that the facts constituting the cause of action and when it arose should be stated in the plaint. Order 7, R.1, Civil P.C., is quite clear on this point and the forms of the plaints and the pleadings in Appendix A of Sched. 1, Civil Procedure Code, do not contain a separate paragraph stating when the cause of action arose. The omission to mention the dates of the reversal of the entries and dispossession of the plaintiffs was not noticed by the parties when the issues were framed but the necessary information, it appears, was supplied during the trial. In my opinion this was merely a formal omission which does not in any way affect the merits of the case and the plaintiffs cannot be tied down to the date of the accrual of the cause of action mentioned in the plaint. The Court is entitled, as the learned Senior Subordinate Judge has done, to determine the date on which the cause of action arose from the facts alleged and proved. After an examination of the pleadings and the finding of the Senior Subordinate Judge I have no doubt that it was on 4th January 1917 that the right of the plaintiffs was really infringed by the defendants necessitating the present suit and, therefore, the time must be held to run against them from that date and not earlier."
24. ' Applying the above principle, it is clear that in the present case, it was proper to refer to the guarantees, copies whereof had been produced with the plaint, for the purpose of ascertaining when the cause of action arose, notwithstanding the state of the pleadings in the plaint as mentioned above.
25. The submission that for the purpose of limitation, the time of filing a suit cannot be the same as "the time from which the period begins to run" as contemplated by the First. Schedule to the Limitation Act read with section 3 thereof, is based on misconception. a suit must, of course, be filed before the expiry of the period of limitation prescribed therefor by a relevant Article of the First Schedule and such period has to be computed from the "time from which" it begins to run, as provided in column 3 of such Article, so that if the time, so computed, has run out, the suit must, by virtue of section 3 of the Limitation Act, be dismissed. These provisions, however, cannot apply where the time, at the time of the filing of the suit, has not begun to run and a fortiori, not expired.
26. ' In the present case, no demand for payment under the guarantees having been made, not only the period for filing the suit had not begun to run but, evidently, no cause of action had accrued to the plaintiff under the guarantees when the suit was filed. That brings me to the argument on behalf of the defendants, which is precisely that no demand having been made under the guarantees, no cause of action had accrued to the plaintiff. The submission is right as far as it goes but if does not go far enough. It is clear on principle and well-established by authority that, in order to shorten litigants, prevent multiplicity of proceedings, avoid hardship to litigants and to do compete justice, the Courts will take notice of events which occur after the institution of the suit.
27. Consequently, a suit filed before the accrual of cause of action will not fail if the cause of action accrues or matures during the pendency of the suit. In Mst. Amina Begum and another v. Mehar Ghulam Dastgir PLD 1978 SC 220 a shop was transferred to the respondent and P.T.O. Was issued to him and thereafter he served a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, on the petitioners. In terms of proviso (b) to section 30(1) of the said Act, the petitioners, as tenants, were protected and could not be ejected for a period of six years after service of notice. The respondent filed an application for ejectment of the petitioners from the shop, before the expiry of such period of six years, on the ground, inter alia, of bona fide requirement for reconstruction. The period of six years expired during the pendency of the proceedings for ejectment and the Rent Controller directed the ejectment of the petitioners. It was held by the High Court of Lahore that the protection given to the petitioners had ended by efflux of time during the pendency of the proceedings, that the cause of action had, thus, matured against the petitioners during the pendency of those proceedings and that order of ejectment could be passed against them if warranted by the facts of the case. Petition for leave to appeal to Supreme Court failed.
28. It is, thus clear that, apart from the application for review being barred by limitation, both the applications are without any merit. It may be added that the fact that I have discussed the grounds raised in the application must not be taken to mean that they, assuming them to be correct, disclosed `special circumstances' as contemplated by Order 39, rule 4, C.P.0 or satisfied the requirements of Order 47, rule 1, C.P.C. That aspect of the matter was not argued by either of the learned counsel.
29. ' The applications are, therefore, hereby dismissed.