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P L D 1959 (W. P.) Karachi 19

 

Before Constantine, J

 

NOOR MUHAMMAD and others‑Applicants

 

versus

 

THE REHABILITATION COMMISSIONER KARACHI‑Respondent

 

Rev. Application No. 156 of 1958, decided on 4th August 1958.

 

Abdul Majid for Applicants.

 

Z. C. Velliani for Respondent.

 

Date of hearing : 4‑8‑58.

 

JUDGMENT

 

The facts giving rise to this application are as follows :‑

 

A development plan for Lalukhet was proposed whereby a road of 300 feet wide should be constructed. At the sides of this proposed road plots were allotted to various people including the four applicants. Apparently some unauthorised persons encroa ched upon the area near these plots so allotted. Later the authorities decided to reduce the width of this road and to allow some of the unauthorised occupants to occupy sites at the side of the road so reduced. Hence the suit by the present applicants to restrain the authorities from so proceeding on the ground that they had a right to a frontage upon a road of the original width, 300 feet. The learned Sub‑Judge granted an ex parte injunction but discharged it at the hearing. Appeal was taken to the Court of the First Additional District Judge, Mr. Iftikhar Husain. The appellants applied for an interim injunction. The order of the Additional District Judge states that notice was served upon the respondent, i.e., the Rehabilitation Commissioner. On the 9th January 1958, in his absence the interim injunction was confirmed on the ground that no opposition was offered to it. The Additional District Judge also proceeded to set aside the order of the Sub‑Judge.

 

On the 22nd February 1958, the Government authority filed an application for re‑hearing of the appeal. In the accompanying affidavit the order of the Additional District Judge was referred to as dated 31st January 1958, whereas the date heading the judgment is 9th January 1958. Mr. Velliani does not deny that the date must be taken as the 9th January 1958. The learned Additional District Judge held that Article 169 applied, granted the application, and later on re‑hearing, dismissed the appeal and discharged the injunction. Hence the application in revision. Since section 5 has not been extended to applications to rehear ex parte appeals, and, since section 12 does not apply to such applications, if Article 169 does apply, then the Additional District Judge was wrong in entertaining application to rehear.

 

The point is whether Article 169 of the Limitation Act, as the learned District Judge held, applies to this case. This Article is as follows :‑

 

“For the re‑hearing of an appeals | Thirty days”.

heard ex parte |

 

Pausing here, so far as this wording goes the Article would apply since this was an appeal (albeit from an order) heard ex parte. But the Article then continues :‑‑

 

“The date of the decree in appeal or, where notice of the appeal was not duly served, when the applicant has knowledge of the decree,” and so far as I van see the warding of this pact of the Article shows that the Article can only apply to cases where one has a decree; for it is impossible to reckon 30 days from a non‑existent point of time. Counsel could point to no other article. The residuary Article 181 would therefore apply, giving three years time. There is therefore no wrong exercise of jurisdiction by the learned Additional District Judge.

 

The learned advocate for the applicants, Mr. Abdul Majid, then attempted to argue the merits of the case, but as this is an application in revision, it is necessary for the applicant to show either an excess or want of jurisdiction or material irregularity and none of these points are involved in his discussion of the merits of the case.

 

I therefore dismiss the revision application. Mr. Velliani claims costs, but since his original view was that Article 169 did apply it appears to me that he should not obtain costs and there will, therefore, be no order as to costs of this revision application.

 

A. H. Application dismissed.

 

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