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-- S. 151 - Miscellaneous application for restoration of review application - Counsel filing his own affidavit in support of his contention raised in application for restoration and relied upon decided cases by High Court where his affidavits urging same ground of having not received the cause list were accepted and cases were restored-Held, adopting same modus again and again rather made matter sceptical and affidavit thus was not inspiring -- Such circumstance could not be dubbed to be an error apparent on face of record to call for a further review-Application for restoration of review was refused in circumstances.

Zulifqar Ali v. Lal Din etc. 1974 S C M R 162 ; Haji Ahmed Hassan v. Dr. Mian Aziz Ahmed etc. 1979 C L C 629 and Mst. Baigan v. Abdul Hakeem etc. 1982 S C M R 673 ref.

-- S. 151-Refusal to restore review application - Miscellaneous application for setting aside primarily order of refusal to restore review application appearing to have assumed the shape of a second review does not lie and could not be sustained.

Mst. Baigan v. Abdul Hakeem etc. 1982 S C M R 673 distinguished.

Muhammad Yousaf v. Tajammal Hussain etc. P L D 1972 Lah. 565 and Muhammad Hussain etc. v. Farzand Ali etc. P L D 1976 Lah. 1173 ref.

0. IX, R. 9 - Good cause for non-appearance - Court to be satisfied as to sufficiency of good cause for non-appearance and it has to be subjective.

-- S. 151-Void order or an order without jurisdiction is only a type of an illegal order passed by a Court and could not be altered under S. 151. C. P. C.-High Court has no suo motu powers to tinker with such order.-[Void order]

Messrs Conforce Ltd. v. Syed Ali Shah P L D 1977 S C 599 fol.

--Negligent counsel-Only remedy for unfortunate client of such a counsel was to sue him for damages.

Mirza Muhammad Saeed v. Shahab-ud-Din etc. P L D 1983 S C 385 ref. (f ) Civil Procedure Code (V of 1"8I

Ss. 115 & 151-Revision petition is not a remedy of right and is conversely something ex gratia - When revision is dismissed for non-prosecution, there will be no right to ask for its restoration, nor would any formal application for the purpose be competent-Held, if revision itself could not be sought to be restored, how could a review application arising out of it and for that matter a second review of the order refusing restoration thereof be allowed.

Messrs Gantsons Industries Ltd. v. Mirza Akhlaque Ahmed P L D 1974 Kar. 339 and hlst. Mussarat Jehan v. Mustaf Ali Beg 1982 C L C 205 ref.

-- Bench having heard main revision petition and subsequent applications would hear all other miscellaneous/ review applications connected therewith.

Yusuf Ali Khan. Bar-at-Law for Applicant. ,

This miscellaneous application has been brought under section 151, C. P. C. for setting aside primarily an order of the 8th of November, 1986, by which I had refused to restore Review Application No. 12-C/85 earlier dismissed for non-prosecution on the 19th of October, 1986 at 1-10 p.m.

2. The main ground urged in support of this petition was that the impugned order was passed without lawful authority as also jurisdiction and was manifestly an attempt to cover up a fraud.

3. The background was that the petitioner filed Civil Revision No. 1919 of 1984 which was dismissed in limine on 24-4-1985. Later he filed the aforesaid Review Application which, of course, was admitted by an order of the 8th of May, 1985 but was dismissed for non-prosecution as indicated above. He then preferred C. M. No. 4901-C'86 for its restoration and the same too was dismissed by me in limine by the impugned order.

4. The ground taken up for restoration of the Review Application was that neither the petitioner nor his counsel Mr. Yusuf Ali Khan had any notice of the date of hearing. The latter filed his own affidavit in support of the contention and relied upon decisions made in his own,0 unreported cases, namely (1) Ghulam Yasin Khan etc. v. The Province of the Punjab etc. (C. M. No. 73-C/86 in W. P. No. 1110/74), (2) Abdul Aziz xhan v. Ch. Muhammad Ashral etc. (C, M. N.o 321/82 in I. C. A I

No. 59/77) and another one not specified, where his affidavits urging the same ground of having not received the Cause-list were accepted and the cases were restored. Unfortunately, 1 took the view that adopting the) same modus again and again rather made the matter sceptical and held that the affidavit was not inspiring. Consequently, I refused to restore the Review Application.

5. Replying a question as to whether the present C. M. Petition under section 151, C. P. C. was tenable, Mr. Yusuf Ali Khan contended that it might be treated as a review application in so far as it sought to correct an error apparent on the record in the shape of relying upon wrong reference vi:., Zulifqur Ali v. Lai Din etc. (1) and Haji Ahmed Hassan v. Dr. Mian Aziz Ahmed etc. (2) where to his reading, notice had in fact been served on the party or counsel in contradistinction to the present case in which its service was completely denied. He observed that the correct law applicable was as enunciated in Vfst. Baigan v. Abdul Hakeem etc. (3), wrongly quoted as 620 in the grounds of the C. M. where despite notice neither the counsel nor the party appeared and yet the case was restored. He referred to Seth Shivirattan G.Mohatta etc. v. Messrs A9uhammadi Steamship Co. etc. (4) further maintaining that the law was not to punish the client for the fault of the lawyer and that avoidance to apply it to the case in hand really called for rectification by review.

6. His third point to justify this sort of second review was that limine dismissal of the application for restoration without affording him an opportunity to appear as a witness or to call the peon who allegedly failed to deliver him the Cause-list, was void and that it had to be recalled suo Motu by the Court according to the rule laid down in Muhammad Iqbal v. S. A. M. Khan etc. (5).

7. In my opinion, the present application does not lie. It appears to assume the shape of a second review which in no manner could be sustained. In Muhammad Yousaf v. Tajammal Hussain etc. (6) it was held that the provisions of Order XLVII, rule 1, C. P. C. did not furnish a proper remedy for setting aside an order on the ground of fraud and further that section 151 being a residuary section was also of no help. In Muhammad Hussain etc. v. Farzand Ali etc. (7), a Division Bench of this Court had laid down that "mere mistake of law or incorrect exposition of law" was no ground for review. I had rightly or wrongly held in the impugned order that there was neglect on the part of the counsel in at least not noting the case from the list displayed in the Bar Room ; that it being either the third or fourth case in the series where he repeated precisely the same ground of failure to receive notice through the peon, it appeared to be a "well-considered modus of explaining non-appearance" on the part of the counsel and further that by reason of its frequent repetition, it had lost efficacy. The conclusion was that the notice in fact was served upon the counsel and, therefore, both the cases relied upon were rightly invoked.

(1) 1974 S C M R 162 (2) 1.979 C L C 629

(3) 1982 S C M R 673 (4) P L D 1965 S C 669

(5) P L D 1970 Lab. 614 (6) P L D 1972 Lab. 565

(7) P L D 1976 Lab. 1173

8. The contention that in Mst. Baigan's case, restoration was upheld by the Supreme Court, is indeed not to the point, firstly because it was a case of converse circumstances and secondly the affidavit there was not found to be false. No doubt the deponent of the affidavit there, being clerk of the counsel, was examined at length, yet it was nowhere provided that such a statement be recorded obligatorily. Mr. Yusuf Ali Khan here relied only upon his own affidavit showing simultaneously that even earlier he had been employing the same mode to explain his absence in other cases. This was the phenomenon which tilted the impression against the veracity of the affidavit on it, face value and, therefore, there was ample justification at least in my estimation to rule it out. I had given this reason, good or bad, and indeed reiterate it.

9. I was conscious of the fact that the stage to rebut this affidavit by the opposite-party had yet not reached and ordinarily I should have accepted it. Indeed its veracity was eroded by the learned counsel himself in pointing out that he had been doing it even earlier as a matter of course. Since reliance on the affidavit alone was placed, it was open to the Court to have scanned it without calling him or the peon concerned as witnesses. The provisions of Order IX, rule 9, C. P. C. talk only of satisfying the Court ' as to sufficiency of good cause for non-appearance and obviously it has to be subjective. It was no stage to insist for recording formal evidence muchless in a case where no intention was disclosed to rely upon it. If the petitioner or for that matter Mr. Yusuf Ali Khan rested content in placing exclusive reliance upon the affidavit, it could have been accepted or even , rejected. They should have foreseen the consequences. In a way, this was all about from them and its uninspiring nature justified limine dismissal of the application. It could not be dubbed to be an error apparent on the face of the record to call for a further review.

10. Considerable stress was laid on suo Motu exercise of power by this Court for recalling the order as being void. I don't think the decision in Muhammad Iqbal's case had any such import. It was given in the context of an objection of limitation. The rule laid down there was that no limitation applied to it and the Court could exercise its powers silo Motu. The impression that a void order may be ignored or altered any time seems to have undergone a change. In Messrs Conforce Ltd. v. Syed Ali Shah (1), it was ruled that even "a void order or an order without jurisdiction is only a type of an illegal order passed by a Court" and could not be "altered" A under section 151, C. P. C. I would, therefore, say that even suo Motu power to tinker with any such order will be deemed to have been withdrawn as per the dictum of the Supreme Court.

11. The third error apparent on the record was said to be failure to apply the rule enunciated in the case of Seth Shivrattan G. Mnhata for not punishing the client for the fault of the counsel. This too is no more obtaining as lately after considering this very point in Mirza Muhammad Saeed v. Shahab-uil-Din etc. (2), it was observed that "the only remedy for the unfortunate client of such a counsel appears to be to sue him for damages". Thus, there was no idea of insisting for complying with the older view of the Supreme Court.

(1) P L D 1977 S C 599 (2) P L D 1983 S C 385

12. Last but not the least is the question of maintainability of not only the present C. M. Petition but also of the Review Application and its restoration. It is commonly accepted that a revision petition is not a remedy of right and is conversely something ex gratia. Therefore, if it is dismissed for non-prosecution, there will be no right to ask for its restoration, nor would any formal application for the purpose be competent. Messrs Ganisons Industries Ltd. v. Mirza Akhlaque Ahmed (1) and Mst. Mussarat Jehan v. MustaJ' Ali Beg (2) may be referred to with advantage in support of this view. Obviously, if the revision itself could not be sought to be restored, how could a Review Application arising out of it, or for that matter, a second review of the order refusing restoration thereof be allowed The whole exercise on the part of Mr. Yusuf Ali Khan in this behalf was completely idle.

13. Some serious vituperations have been made against me in the petition under consideration. It appears that the learned counsel failed to convince the Honourable Chief Justice to get this petition marked to any other Bench perhaps because of the compulsion that it had to be heard by me for the reason of having earlier disposed of not only the main revision but also the subsequent applications. In regard to the truth of the vituperations, the less said the better because those appear to be proverbial if not compulsive with the counsel.

14. As a result, 1 dismiss the application in limine.

M. S. A. Application dismissed.

(1) P L D 1974 Kar. 339 (2) 1982 C L C 205

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