Friday, 26 September 2014

Suit for Damages on Malicious Prosecution can be filed within one year

PLJ 2014 Karachi 202
Present: Muhammad Ali Mazhar, J.
versus
Suit No. 385 of 1996 and C.M.A. No. 3650, 3125 of 2012,
decided 29.11.2013.
----Art. 23--Suit for damages on account of malicious prosecution was dismissed being time barred--Cause of action--Limitation was date when plaintiff was acquitted--Limitation for filing suit for compensation on account of malicious prosecution was one year--Suit was time barred due to summer vacation--Once suit was instituted on first opening day impediment of limitation does not come in way of plaintiff--Validity--Limitation for filing suit, for compensation on account of malicious prosecution is one year and starting point of limitation is date when plaintiff is acquitted and prosecution is otherwise terminated--Cause of action was accrued on date when High Court acquitted plaintiffs in original proceedings--Keeping in view averments made in plaint suit is apparently time barred and date of its institution is much after period of one year limitation prescribed under Art. 23 of Limitation Act and accordingly suit was dismissed under Section 3 of Limitation Act, but matter does not end here--Plaintiffs were out of country hence they could not promptly approach High Court--Information of dismissal of suit came into their knowledge through its reporting in Law Journal--Before instant application they moved similar application for recalling order, which was also dismissed for non-prosecution--No notice was issued and application was dismissed without issuing any notice to them.            [P. 211] A, B & C
----It well settled proposition of law that legal plea can be raised at any stage even up to level of appellate forum.    [P. 211] D
----O. VII, R. 6--Limitation Act, (IX of 1908), Ss. 12 to 20--Matter of procedure--Computation of period of limitation--Where suit was instituted after expiration of period by law of limitation, plaint shall show ground by which exemption from such law was claimed--Computation of period of limitation was provided under Sections 12 to 20 of Limitation Act, while limitation of suits, appeals and applications are provided under Sections 3 to 11 of Limitation Act.          [P. 212] E
----S. 4--Period of limitation--Suit, appeal or application to be filed on reopening of Court--Closure on day when limitation expires--Validity--Section 4 of Limitation Act, does not extend period of limitation prescribed under law but it simply permits a suit, appeal or application to be filed on re-opening of Court if period of limitation expires on a day when Court is closed.  [P. 212] F
----Original jurisdiction of High Court--High Courts were closed for civil business on account of summer vacations--It is also well known fact that Court at its principal seat exercises its original side jurisdiction for civil suits which jurisdiction is not available to other High Courts except Islamabad High Court and while exercising its original jurisdiction High Court exercises powers of Civil Court.         [P. 212] G
----S. 4--Recalled and reviewed of judgment--Limitation--Plaint was instituted very first day of reopening of Court after summer vacation--Validity--It is not time barred and institution on first re-opening day is duly protected under Section 4 of Limitation Act and since such important aspect escaped attention of Court or it was never pointed out, therefore, judgment was liable to be recalled and reviewed.        [P. 213] H
----S. 3--Civil Procedure Code, (V of 1908), O. VII, R. 11--Suit was not barred by limitation--Application for recalling order or reviewing order--Suit was not rejected under Order 7, Rule, 11 CPC--Validity--Order was passed without considering a particular aspect that suit was instituted on first opening day according to which suit was not barred by limitation, so instead of preferring appeal they had filed an application in first instance for recalling order or reviewing order.   [P. 215] I
----O. XLVII, R. 1 & S. 151--Grounds on which review can be sought--Application was moved u/S. 151, CPC but purpose and crux of application means to filing of review application--Validity--A review can be filed for rectification of any mistake or error apparent on face of record--Such mistake or error may be one of law which can be established without elaborate arguments--Error must have also substantial effect on fate of case and error apparent from face of record may be corrected without driving a party to appeal.     [P. 215] J
----S. 4--Delay if any for filing application for review of judgment was condoned and by treating application as review petition--Non compulsion or obligation to institute plaint during period of limitation--Validity--Judgment and decree both were liable to be recalled, and plaintiff was entitled to benefit of Section 4 of Limitation Act--No compulsion or obligation upon plaintiff to institute plaint during period of vacation and very language of the notification amply demonstrates that petition could be received from persons who choose to present them except on public holidays--No hesitation to hold that if plaintiff felt no urgency or did not opt to institute plaint during vacations, this does not mean that benefit of Section 4 of Limitation Act is wiped out which is always a beneficial provision in nature and plaintiff cannot be non-suited.  [P. 216] K & L
Ms. Saba Latif, Advocate for Plaintiffs along with Mr. Taffazul Haider Rizvi, Advocate/Attorney of Plaintiff No. 1.
Mr.Ghulam Murtaza, Advocate (M/s. Liaquat Merchant Associates) for Defendant Nos. 1, 3, 6, 7, 8 & 9.
Date of hearing: 12.9.2013.
Order
Through the instant applications, the plaintiffs have prayed that the judgment dated 31.8.2010 and decree, whereby the suit was dismissed being time barred under Article 23 of the Limitation Act be recalled/reviewed. Along with this application moved under Section 151 C.P.C, the plaintiffs have also filed application under Section 5 of the Limitation Act for condonation of delay.
2.  The brief facts of the case are that the plaintiffs had filed this suit for damages on account of malicious prosecution. In the plaint it was alleged that the cause of action was accrued to the plaintiffs on 20.7.1994 and it was an admitted fact that the suit was filed on 6.8.1995 and vide order dated 24.11.2008, this Court took judicial notice that from the averments made in the plaint, the suit appears to be time barred under Article 23 of the Limitation Act. Therefore, in presence of the counsel for the plaintiffs and Defendant Nos. 1 to 9, a preliminary legal issue as under:--
"Whether the suit filed by the plaintiff is time barred."
3.  After settlement of an issue of law, the office was directed to fix the suit for hearing of preliminary issue. Record reflects that since 19.4.2010, nobody appeared for the plaintiffs to argue the issue framed by the Court. On 23.8.2010, I partly heard the learned counsel for the defendants and since nobody was present for the plaintiffs, in the interest of justice, I directed the office to issue notice to the plaintiffs for 31.8.2010 but despite notice, nobody appeared to address the preliminary issue. After examining the averments made in the plaint and also keeping in view the Article 23 of Limitation Act, I dismissed the suit, which was on the face of it a time barred suit.
4.  After dismissal of the suit, the plaintiffs filed CMA No. 379/2011 on 12.1.2011 under Section 151, CPC for recalling the order which order according to them came into their knowledge through law journal "2010 CLD 1541". It was further stated in the same application that the counsel for the plaintiffs was an outside counsel and he was not served with any notice of hearing therefore, he could not appear. It was further claimed in the application that notice of hearing for 31.8.2010 was issued on 25.8.2010, which was dispatched by the office on 26.8.2010 through ordinary post, which was never received by the counsel for the plaintiffs. This application was fixed in Court for orders on 11.5.2011 when again the counsel for the plaintiffs was called absent, hence, this application was also dismissed for non-prosecution, thereafter, the plaintiffs moved the present application for recalling the order.
5.  The learned counsel for the plaintiffs argued that the plaintiffs received the information regarding the dismissal of the suit when the judgment was reported in the above Law Journal on 03.01.2011. It was further contended that the application for recalling the order was filed when the claim of set off filed by the defendants was fixed for evidence in Court. Since no notice was issued hence, the plaintiffs' counsel could not appear in this Court from Lahore. Restoration application was fixed for orders and due to default the application was dismissed for non-prosecution. It was further argued that counsel for the plaintiffs Mr.Talib Rizvi, who was practicing in Lahore expired in the month of January, 2012. Neither the applicant's attorney who is also based in Lahore nor his counsel's office received any notice of the date of hearing nor due to non-service of notice could the advocate appear. The learned counsel argued that the delay if any may be condoned. So far as the reasons for recalling the order is concerned learned counsel mostly reiterated the same arguments that counsel for the plaintiffs was expired and no notice was ever issued regarding the date of hearing. Besides above, it was further argued that the suit was dismissed without providing opportunity of fair trial as envisaged under Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973, which is a fundamental right of the plaintiffs. On 19.12.2012, while arguing the applications, learned counsel for the plaintiffs raised a question of law and also placed a copy of notification dated 21.3.1995, which was issued by the then Registrar of this Court. This notification pertains to the announcement of summer vacations commenced from 04.06.1995 to 05.08.1995 and according to which the Courts were to be reopened on Sunday, the 6th August, 1995. Though no such ground was incorporated in the application for claiming any exemption for the period of limitation but while placing the notification on record it is clear that in the aforesaid period this Court observed summer vacations. For ready reference the notification is reproduced as under:
"THE HIGH COURT OF SINDH, KARACHI
No. GAZ/XVII. 13, dated Karachi the 21st March, 1995.
NOTIFICATION
It is hereby notified for general information that the High Court of SindhKarachi and its Benches at SukkurHyderabad and Larkana will be closed for civil business on account of Summer Vacation from Sunday the 4th June, 1995 to Saturday the 5th August. 1995 and will re-open on Sunday the 6th August. 1995.
The Court and Office of the High Court of Sindh at Karachi and its Benches at SukkurHyderabad and Larkana will observe the following timings during the ensuing Summer Vacation:--
COURT TIMINGS       (From Sunday to Thursday)
09.30 a.m. to 11.00 a.m           Court Sittings
11.00 a.m. to 11.30 a.m           Interval
11.30 a.m. to 01.30 p.m          Court Sittings
OFFICE TIMINGS       (From Sunday to Thursday)
09.00 a.m. to 02.00 p.m          (Without break)
During the said period of Vacation. Petitions will be received daily from the persons who choose to present them except on Public Holidays. All such petitions and other miscellaneous petitions which cannot be disposed of at once, will be heard on the re-opening day of the Court after Summer Vacation on the dates that may be fixed.
            BY ORDER OF THE HIGH COURT
            REGISTRAR"
6.  Since the notification was produced randomly in Court during the course of arguments thus in order to provide a fair opportunity of rebuttal, I deemed it proper to provide an opportunity to the counsel for the defendants to examine the notification and copy of notification was supplied to him.
7.  Learned counsel argued that if notification is considered, the suit is not time barred as it was presented on first opening day and since nobody was present for the plaintiffs to highlight this important aspect hence, this notification escaped the attention of this Court. She further argued that no doubt on plain reading of the plaint the suit appears to be time barred under Article 23 of the Limitation Act, but due to summer vacations, the limitation in filing the suit was extended up to 6.8.1995 on which date the plaint was properly instituted in this Court, therefore, on this ground alone the order is liable to be recalled as the very root of the order is based on limitation and once the suit was instituted on first opening day the impediment of limitation does not come in the way of plaintiffs. In support of her arguments learned counsel for the plaintiffs relied upon the following case law:--
(1)        2007 SCMR 1256 (Mst.Razia Jafar & others v. Govt. of Balochistan & others). It is a settled maxim that nobody shall be prejudiced by the act of the Court or act of the public functionaries. Ahmad Latif Qureshi v. Controller of Examination PLD 1994 Lah. 3, Arshad Hussain's case 1991 CLC Note 20 at page 13, Mian Irshad Ali's case PLD 1975 Lah. 7 and Fateh Khan's case PLD 1991 SC 782.
(2)        2005 SCMR 720 (Mian Muhammad Talha Adil v. Mian Muhammad Lutfi). No person should suffer for act or omission of Court and act of Court should not prejudice anyone.
(3)        2010 SCMR 1408 (Government of NWFP & others v. Akbar Shah & others). Duty of Courts to apply correct law. Failure of counsel to properly advise would not be a complete excuse. Judge must wear all laws of country on sleeve of his rob. Primary duty of Courts and other adjudicating forums would be to decide lis before them in accordance with law. Courts/forums would not be relieved of such duty on account of fact or mean of litigation or of a lawyer.
(4)        2001 SCMR 1822 (Ali Muhammad v. Chief Settlement Commissioner & others). No period of limitation would run against a void order.
(5)        2003 SCMR 1772 (Muhammad Yar v. Muhammad). Section 4 revolves around two maxims i.e. "Lex nori cogit ad impossiblia" (law does not compel a man to do that which he cannot possibly perform) and "Actus Curiae neminem gravabit" (an act of Court shall prejudice no man). Period of limitation is not amended/modified/ altered or changed by such provisions. Section 4 has no concern whatsoever with computing prescribed period, but where such period expires on a day, when Court was closed, then plaints/petitions/applications may be preferred on the day, when Court re-opens.
(6)        1980 SCMR 375 (Ikramullah v. Said Jamal). Section 4 simply permits a suit, appeal or applications to be filed on re-opening of Court, if period of limitation expired on a day when Court closed. Principle in underlying section is plaintiff or applicant not to be prejudiced by act of Court, namely its closure on day when limitation expires.
(7)        2000 SCMR 354 (Nooruddin & others v. Pakistan). Provision of Section 4 Limitation Act, 1908 enables a suitor, appellant or applicant, in cases where the period of limitation for his suit, appeal or application expires on a day when the Court is closed, to institute prefer or make such suit, appeal or application as the case may be, on the day Court re-opens. Section 4 of the Limitation Act enables a suitor, appellant or applicant, in cases where the period of limitation for his suit, appeal or application expires on a day when the Court is closed, to institute, prefer or make such suit, appeal or application, as the case may be on the day the Court re-opens. Where the Limitation Act provides an extension in the period of limitation, such as under the bulk of Sections 6 to 24, the person concerned may add such period to that in contemplation of the First Schedule to the Limitation Act, and if the combined period so arrived at expires when the Court is closed, including when it is closed for vacation, the relevant suit, appeal or application, taking benefit from Section 4 of the Limitation Act, may be instituted, preferred or made on the date the relevant Court reopens.
8.  Conversely, the learned counsel for the defendants argued that the application is time barred and liable to be dismissed. The application filed for recalling the order dated 31.8.2010 is not competent and the plaintiffs have failed to file application under relevant provision of law. Learned counsel further argued that mere engagement of a counsel is not enough but the party is responsible to pursue their case diligently. It was further stated that no personal affidavit has been filed by the plaintiffs in support of their application under Section 151, CPC in order to justify their absence in pursuing their claim. The suit was dismissed as time barred and its restoration will tantamount to permit the institution of a new suit for the trial. Learned counsel also rebutted the claim of non-service of the notice. It was contended that various notices were issued to the plaintiffs, but they failed to respond and finally on 31.8.2010 when counsel for the plaintiffs failed to appear, this Court heard the case and decided the same. Learned counsel further argued that according to Sindh Chief Court Rules, the Registrar (O.S) on every Saturday fixes the date in suits hence it was the duty of plaintiffs' advocate to remain in the office at the time of fixation of date so that the date may be noted. It was further averred that the rejected plaint, cannot be restored under the inherent jurisdiction of the Court and proper remedy was to file appeal or revision. Learned counsel made much emphasis that rejection of the plaint is tantamount to passing of decree which is challengeable in the appeal. So far as the notification of summer vacation is concerned, the learned counsel argued that Section 4 of the Limitation Act only applies where no arrangement exists for receiving petition. Despite summer vacations, the offices of the Court were opened and there was no impediment not to institute the plaint and according to the said notification this Court was opened for institution of some lis hence, period of limitation could not be enlarged under Section 4 of the Limitation Act. In support of his arguments, the learned counsel relied upon the following case law:--
(1)        2003 SCMR 157 (Memon Educational Board & Society Karachi v. Munawar Hussain). Section 2(2), 96 & Order VII Rule 11. Rejection of plaint tantamount to passing of a decree under Section 2(2), CPC and the same is challengeable in appeal under Section 96 CPC.
(2)        PLD 1963 Karachi 883 (Sirajuddin v. Muhammad Sharif). Civil Procedure Code (V of 1908) Order VII Rule 11 and 13 and Section 151. Time barred suit. Rejected plaint cannot be restored by invoking inherent powers under Section 151.
(3)        2006 CLC 618 (Muhammad Shareef v. Muhammad Ramzan & others). According to notification of High Court dated 14.5.1998, summer vacations started from 13th July up to 12th September, but its Registry remained open during vacations for receipt of all kinds of petitions on working days. In spite of closure of High Court for regular work during such vacations, alternate arrangements had been made for receipt of petitions involving question of limitation. High Court during vacations would be deemed to be open for institution of some lis. Period of limitation, thus, could not be enlarged under cover of Section 4 of Limitation Act, 1908. Preparation of memorandum of revision and its filing on 14.9.1998 showed that petitioner had not made any effort to file same within prescribed time.
(4)        1971 SCMR 779 (Jumma v. Maulvi Mubarak). Constitution of Pakistan (1962), Article 58(3) read with Supreme Court Rules, 1956, Order XIII Rule 1. Delay of 68 days in filing petition for Special Leave to Appeal. Delay explained as due to fact that Supreme Court was closed for long vacation. Held. Offices of Supreme Court remain open during vacation and delay, in circumstances, could not be condoned.
(5)        1999 SCMR 108 (Lehar Khan & others v. Amir Hamza & others). When Supreme Court was in vacation, Registries were always open for receiving petitions and other work. Judges of Supreme Court invariably work throughout vacation. Provisions of Order II Rule 2 Supreme Court Rules, 1980 specifically provide for offices of Court to remain open during summer vacation and winter holidays. Registries of Supreme Court were non-vacation offices. Offices of Supreme Court being open for receiving petitions and for doing other work, Provision of Section 4. Limitation Act, 1908 would not be applicable.
(6)        1970 SCMR 234 (M/s. M.A. Nawaz & Co. & others v. National Bank of Pakistan). Supreme Court Rules 1956 Order XIII Rule 1 read with Limitation Act (IX of 1908) Section 4. Petition for Special Leave to Appeal barred by time. Contention that Court closed for long vacation and therefore, extension of time could be claimed under Section 4 Limitation Act, 1908. Held. Provision of Section 4 applicable only where no arrangement exist for receiving petitions etc. Registries of Supreme Court open during vacation for receiving petitions etc.
(7)        1995 MLD 1042 (Khushi Muhammad v. Muhammad Sharif). Section 4., CPC (V of 1908) Section 100. Appeal, Limitation. Judgment of lower Appellate Court was dated 10.4.1985, while appellants applied for copies on 15.4.1985 and certified copies were delivered to them on 20.5.1985. Memorandum of appeal was presented in High Court on 19.8.1985 during summer vacation. Limitation of 90 days expired on 15.8.1985 while appeal was presented on 19.8.1985 which was barred by five days. Provision of Section 4 Limitation Act, 1908, whereby appeals etc. could be filed on reopening of Court was not applicable for prevailing practice was that the Benches of High Court as also registry remained open throughout the vacation and appeal, application etc. were received during vacations.
9.  Heard the arguments. It is an admitted position that the suit was instituted in this Court on 6.8.1995 and in Paragraph 31 of the plaint it is clearly mentioned that the cause of action accrued to the plaintiff on 20.7.1994 according to Article 23 of the Limitation Act, the Limitation for filing suit, for compensation on account of malicious prosecution is one year and the starting point of limitation is the date when plaintiff is acquitted and the prosecution is otherwise terminated. The cause of action was accrued on 20.7.1994 which is the date when this Court acquitted the plaintiffs in the original proceedings. Keeping in view the averments made in the plaint the suit is apparently time barred and the date of its institution is much after the period of one year limitation prescribed under Article 23 of the Limitation Act and accordingly the suit was dismissed under Section 3 of the Limitation Act, but the matter does not end here. In both the applications one moved under Section 151, CPC with enabling provisions of, CPC and the application under Section 5 of the Limitation Act, mostly the learned counsel for the plaintiff taken the ground of non-service of notice when the matter was fixed for hearing and decision of the preliminary issue. This ground was also taken that the senior counsel died and the plaintiffs were out of country hence they could not promptly approach this Court. They also pleaded that information of the dismissal of the suit came into their knowledge through its reporting in the Law Journal. It is also a matter of fact that before instant application they moved the similar application for recalling the order, which was also dismissed for non-prosecution for winch also the plaintiffs' counsel argued that no notice was issued and the application was dismissed without issuing any notice to them. In my view all these grounds are immaterial as it was the responsibility of the plaintiffs and their counsel to pursue their lis diligently. I myself issued notices to them before passing the judgment, but they never appeared. However, during the course of arguments on 19.12.2012, the learned counsel for the plaintiffs produced a notification of summer vacations observed by this Court from Sunday 04.06.1995 to Saturday 05.08.1995 and according to notification the first opening day was 06.08.1995. Since this notification was produced during course of arguments and a law point was raised, therefore, I deemed it appropriate to supply copy of notification to the counsel for the defendants so that he may not be taken into surprise and I also afforded opportunity to the learned counsel for the defendants to come prepared on the next date so that he may be able to confront this legal plea which came to rescue the plaintiffs' case as blessing in disguise as no such ground was initially taken in the application for recalling the order. It well settled proposition of law that the legal plea can be raised at any stage even up to the level of appellate forum.
10.  Under Order VII Rule 6 CPC, it is clearly provided that as a matter of procedure where the suit is instituted after the expiration of the period by the law of limitation, the plaint shall show the ground by which exemption from such law is claimed. The computation of period of limitation is provided under Sections 12 to 20 of the Limitation Act while limitation of suits, appeals and applications are provided under Sections 3 to 11 of the part 2 of the Limitation Act. Section 4 in the case in hand is relevant which is reproduced as under:
"4. Where Court is closed when period expires.--Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens."
11.  Section 4 of the Limitation Act does not extend the period of limitation prescribed under the law but it simply permits a suit, appeal or application to be filed on re-opening of the Court if the period of limitation expires on a day when the Court is closed. The language of Section 4 itself speaks of the expiry of the period of limitation and the principle underlying the section is that the plaintiff or the applicant should not to be prejudiced by the act of Court, namely, its closure on day when limitation expires. It does not extend the period of limitation, but merely provides a device to overcome the closure of the Court on the day the limitation expires. Reference can be made to the case ofIkramullah & others v. Said Jamal reported in PLD 1980 SCMR 375.
12.  It is clear from the notification dated 21.3.1995 issued by the then learned Registrar of this Court that this Court, and its benches at Sukkur, Hyderabad and Larkanawere closed for civil business on account of summer vacations from Sunday 04.06.1995 to Saturday 05.08.1995 and were reopened on Sunday 06.08.1995. According to this notification the Courts were closed for civil business during summer vacations, however, it was further mentioned in the notification that during the period of vacation the petitions were to be received daily from the persons who choose (emphasis added) to present them except on public holidays and all such petitions and other misc. petitions which cannot be disposed of at once were required to be heard on the reopening day of the Court after summer vacations on the dates that may be fixed. However, it was left open to the discretion of the petitioners to institute the petition if they choose to present during summer vacations. It is also well known fact that the Court (Sindh High Court) at its principal seat exercises its original side jurisdiction for the civil suits which jurisdiction is not available to the other High Courts except Islamabad High Court and while exercising its original jurisdiction this Court exercises the powers of Civil Court. Reference can be made to judgment of Divisional Bench of this Court authored by me in the case of (Muhammad Naved Aslam & others v. Mst. Aisha Siddiqui & others) reported in 2011 CLC 1176 in which it was held that while exercising powers on original side, this Court is in fact exercises jurisdiction in the civil district of Karachi as was exercisable immediately before the commencement of establishment of West Pakistan High Court Orders by the Chief Court of Sindh under Section 8 of the Sindh Courts Act 1926. The Karachi Bench of the Sindh High Court is functioning or exercising powers and performing duties as the principal Civil Court of original jurisdiction in the civil district of Karachi.
13.  According to the Paragraph 31 of the plaint, the cause of action was accrued on 20.7.1994 and according to the limitation prescribed in the Limitation Act, the suit was required to be instituted on 19.7.1995 during which period this Court was observing summer vacations up to 5.8.1995 and the first reopening day was Sunday 06.08.1995 on which date the plaint was instituted, hence the learned counsel for the plaintiffs argued that since the plaint was instituted on very first day of reopening of the Court, after summer vacation, therefore, it is not time barred and the institution on first re-opening day is duly protected under Section 4 of the Limitation Act and since this important aspect escaped the attention of the Court or it was never pointed out, therefore, judgment dated 31.8.2010 is liable to be recalled and reviewed.
14.  Learned counsel for the plaintiffs referred to the cases of MstRazia JafarMian Muhammad Talha Adil and Government of NWFP in which the apex Court held that nobody should be prejudiced by the act of Court or act of the public functionaries. For the act and omission of the Court it was further held that it is the duty of the Court to apply correct law. The judge must wear all laws of country on sleeve on his rob and the primary duty of Courts would be to decide lis before them in accordance with law. In the case of Ali Muhammad it was held that no period of limitation would run against a void order while in the case of Muhammad Yar the hon'ble Supreme Court held that Section 4 revolves around two maxims i.e. "Lex nun cogit ad impossible" (law does not compel a man to do that which he cannot possibly perform) and "Actus Curiaeneminem gravabit" (an act of Court shall prejudice no man). Period of limitation is not amended/modified/altered or changed by such provisions. Section 4 has no concern whatsoever with computing prescribed period, but where such period expires on a day, when Court was closed, then plaints/petitions/applications may be preferred on the day, when Court re-opens. In the case of Nooruddin the hon'ble Supreme Court held that the Limitation Act provides on extension in the period of limitation such as under the bulk of Sections 6 to 24, the person concerned may add such period to that in contemplation of first schedule of the Limitation Act and if the combined period so arrived at expires when the Court is closed, including when it is closed for vacation, the relevant suit, appeal or application taking benefit from Section 4 of the Limitation Act, may be instituted preferred or made on the date the relevant Court reopens.
15.  Learned counsel for the defendants relied upon the cases of Memon Educational Board & Society and Sirajuddin (supra). In both the cases the plaints were rejected under Order VII Rule 11 CPC, hence the Hon'ble Supreme Court held that rejection of plaint tantamount to passing of a decree and the same is challengeable in appeal and in another case it was held that the plaint was rejected under Order VII Rule 11, CPC cannot be restored by invoking inherent powers under Section 151 CPC. Both the precedents are distinguishable as in this case the plaint was not rejected under Order VII Rule 11, CPC but the suit was dismissed under Section 3 of the Limitation Act.Whether the appropriate remedy was appeal or review it will be discussed later. Learned counsel further relied upon the case of Muhammad Shareef in which also the benefit of Section 4 was claimed and the learned Judge observed that the notification depicts that summer vacations of the Lahore High Court for the year 1998 started from 13th July up to 12 September and the first opening day was 13.09.1998 while the civil revision was filed on 14.09.1998. The learned Court held that since the arrangements were made for receiving the petition hence this could not be said that the Courts were closed. In this notification also the first part relates to the civil business for which the Courts were closed while in the later part it is stated that the petition will be received daily from such person as may choose to present them. In my view word "choose" mentioned in the later part of the notification is an option which may or may not be exercised and this word has not been used as compulsion or obligation which may override the specific provision of Section 4 of Limitation Act. He further referred to the case of Jumma in which the Hon'ble Supreme Court held that in terms of Rule 3 of Order II of the Supreme Court Rules, a notification was issued by the Hon'ble Chief Justice in view of the said notification the offices were open for their ordinary and routine business during vacation which includes the reception of petition of special leave to appeal. Since in this case law counsel for the petitioner argued before the Court that in view of Section 4 of the Limitation Act the notification issued by the Hon'ble Chief Justice of Supreme Court was ultra vires, which was not accepted by the Hon'ble Supreme Court and the leave was refused. The mark distinction in this case is that the hon'ble Supreme Court held that the offices of Supreme Court were open for ordinary and routine business in their own rules, hence, this case is distinguishable. In the cases of Lehar Khan and M/s. M.A. Nawaz also the Hon'ble Supreme Court relied upon the Order II Rule 2 of Supreme Court Rules 1980 which provides that except holidays the offices of the Supreme Court shall be open during vacations and the winter holidays. It was further held that registries of Supreme Court are non-vacation offices hence Section 4 of the Limitation Act could not be applied. Again I would like to observe that the judgment of apex Court is based on the premise of its own rules which virtually excluded the operation of Section 4 of the Limitation Act. He further relied upon the case ofKhushi Muhammad (supra) in which the second appeal was found barred by time and it was held that the appeal could be filed on the reopening day was not applicable for prevailing practice of the benches of the High Court as also registry remained open throughout vacations.
16.  Now I would like to take into consideration the arguments of the learned counsel for the defendant that the plaint rejected under Order VII Rule 11, CPC is a degree and an appeal should have been filed rather than an application under Section 151 CPC. Let me first clarify that in the case in hand the plaint was not rejected under Order VII Rule 11 CPC, but it was dismissed under Section 3 of the Limitation Act. Since the plaintiff is of the view that the order was passed without considering a particular aspect that the suit was instituted on the first opening day according to which the suit was not barred by limitation, so instead of preferring appeal they have filed an application in the first instance for recalling the order or reviewing the order.
17.  The nomenclature of application hardly matters but what matters is the pith and substance. Though the application was moved under Section 151, CPC but the purpose and crux of application means to filing of a review application under Order XLVII Rule 1 CPC, in which it is clearly provided that any person considering himself aggrieved by a decree or order from which an appeal is allowed but from which no appeal has been preferred may apply for review of judgment. The mere fact that an appeal is competent is no ground for refusing review. The grounds on which review can be sought are enumerated in Rule 1 of Order XLVII. A review can be filed for the rectification of any mistake or error apparent on the face of the record. Such mistake or error may be one of law which can be established without elaborate arguments. The error must have also substantial effect on the fate of the case and the error apparent from the face of the record may be corrected without driving a party to appeal. Section 4 of the Limitation Act revolves around two maxims i.e. "Lex non cogit ad impossiblia" (law does not compel a man to do that which he cannot possibly perform) and "ActusCuriae neminem gravabit" (an act of Court shall prejudice no man). Period of limitation is not amended/ modified/altered or changed by Section 4 which has no concern whatsoever with computing prescribed period, but where such period expires on a day, when Court was closed, then plaints/petitions/applications may be preferred on the day, when Court re-opens.
18.  Keeping in view the above circumstances, the delay if any for filing application for review of the judgment is condoned and by treating the application as review petition, I am of the firm view that the judgment and decree both are liable to be recalled and the plaintiff is entitled to the benefit of Section 4 of the Limitation Act. Even from the language used in the notification produced by the plaintiff, it is unequivocally vibrant that there was no compulsion or obligation upon the plaintiff to institute the plaint during the period of vacation and the very language of this notification amply demonstrates that the petition could be received from persons who choose to present them except on public holidays. So I have no hesitation in my mind to hold that if the plaintiff felt no urgency or did not opt to institute the plaint during vacations, this does not mean that the benefit of Section 4 of the Limitation Act is wiped out which is always a beneficial provision in nature and plaintiff cannot be nonsuited.
19.  As a result of above discussion, the judgment dated 31.8.2010 and the decree passed in pursuance thereof both are recalled. The suit is restored to its original position. Both Applications are disposed of.

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