Order Sheet

IN THE HIGH COURT OF SINDH AT KARACHI

Suit No. 570 of 2009

Date	Order with signature of Judge

Mr. Usman Tufail Shaikh, advocate for the plaintiff.

Mr. Ikram Ahmed Ansari, advocate for defendant No.2.

Dates of hearing : 31.03.2014 and 12.08.2014.

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ORDER ON C.M.A. No. 13240 OF 2013

NADEEM AKHTAR, J. – C.M.A. No.13240 of 2013 has been filed by defendant No.2 for self and purportedly on behalf of defendant No.1, seeking review of the order passed by me on 28.10.2013 whereby the office was directed to fix this Suit for ex-parte order against the defendants on the next date.

2. Relevant facts giving rise to this review application are that on 28.10.2013, Mr. Hassan Sabir Advocate made a statement before the Court that he was representing both the defendants in this Suit. As his power from defendant No.1 was not on record, the learned counsel requested for time to file fresh power on behalf of defendant No.1 (Pakistan Hockey Federation) on the ground that defendant No.2 (Muhammad Asif Bajwa), who was the Secretary General of defendant No.1, had resigned. This request was strongly opposed by the learned counsel for the plaintiff by submitting that Mr. Hassan Sabir Advocate never filed his power on behalf of defendant No.1, and the power was filed only on behalf of defendant No.2. It was also submitted by the learned counsel for the plaintiff that the written statement purportedly filed on behalf of the defendants was not signed or verified on oath by any of them, but was signed by Mr. Hassan Sabir Advocate, and as such the same cannot be deemed to be a written statement in terms of Order VI Rules 14 and 15 CPC. After observing that the submissions made by the learned counsel for the plaintiff appeared to be correct and written statement was not filed by any of the defendants, it was ordered by me on 28.10.2013 that the matter be fixed on 04.11.2013 for ex-parte order against them.

3. On 04.11.2013, Mr. Ikram Ahmed Ansari Advocate undertook to file power on behalf of both the defendants. On 26.11.2013, he filed the listed application for review of the order passed by me on 28.10.2013. The application has been filed on behalf of both the defendants, and is supported by the affidavit of defendant No.2, claiming to be the “General Secretary” of defendant No.1. Two powers were subsequently filed on 06.12.2013 by M/S Ikram Ahmed Ansari, Ayaz Ahmed Ansari and Hassan Sabir Advocates, one on behalf of defendant No.1, and the other on behalf of defendant No. 2. Before deciding the application in hand, in my humble opinion it is necessary to ascertain whether the same has been filed on behalf of both the defendants or not. Mr. Ikram Ahmed Ansari Advocate was requested to satisfy me as to how this review application can be treated to have been filed on behalf of defendant No.1 as the affidavit filed in support thereof is sworn by defendant No.2 claiming to be the “General Secretary” of defendant No.1, however, no resolution, authorization or power of attorney has been filed by him in order to show that defendant No.1 has authorized him to file the application on its behalf. Moreover, the seal of defendant No.1 does not appear either on the application or on the affidavit, although the seal appears on the powers filed on behalf of defendants 1 and 2. The learned counsel was also requested to clarify as to who has signed his power on behalf of defendant No.1, as defendant No.2, who claims to be the “General Secretary” of defendant No.1, has not signed the power, and some other person has signed the power whose name and designation have not been disclosed therein.

4. Mr. Ikram Ahmed Ansari Advocate submitted that by virtue of Article 20.2.8 of the Constitution of defendant No.1, the Secretary General can exercise all such powers and perform all such duties on behalf of defendant No.1 that are specified in Article 20 of the Constitution, and no specific resolution, authorization or power of attorney is required for exercising such powers or performing such duties. Regarding the signature of some other person appearing on the power filed by him on behalf of defendant No.1, the learned counsel candidly conceded that when the order under review was passed on 28.10.2013 and when this review application was filed on 26.11.2013, defendant No.2 was not the Secretary General of defendant No.1, but one Rana Mujahid Ali was holding the said post. He stated that his power on behalf of defendant No.1 was signed by the said Rana Mujahid Ali, and in order to substantiate this statement, he placed on record a copy of letter dated 16.11.2013 issued and signed by the said Rana Mujahid Ali as the Secretary General of defendant No.1.

5. In reply to the above submissions of Mr. Ikram Ahmed Ansari, learned counsel for the plaintiff submitted that under Article 20.2.1 of the Constitution of defendant No.1, the Secretary General cannot exercise any power on his own without the approval of the Board of defendant No.1 constituted under Article 13 of its Constitution, whose powers and functions are specified in Article 13.6 of the Constitution.

6. I have examined the relevant provisions of the Constitution of defendant No.1 relied upon by the learned counsel for the parties. Article 20.2.8 of the Constitution empowers the Secretary General of defendant No.1 to “take all measures / actions for the safeguard of the interests and in furtherance to the objects of PHF”. This Article does not specifically authorize the Secretary General to represent defendant No.1 in legal proceedings before any Court, or to sign, verify or file pleadings on its behalf. Article 13 of the Constitution provides that there shall be an Executive Board of defendant No.1, which shall be elected by the Congress for a term of four years. All the powers and functions under this Article are exercised either by the Board or by the Committees and Sub-Committees constituted by the Board.

7. The admitted position that has emerged from the above is that defendant No.2 was not the Secretary General of defendant No.1 when the order under review was passed on 28.10.2013 or when this review application was filed on 26.11.2013 ; the person who was holding the post of Secretary General on the aforesaid dates and is still holding the said post, has not filed the review application nor has he sworn the affidavit filed in support thereof; and, defendant No.2, who is the former Secretary General, has not been authorized by defendant No.1 to file the application on its behalf. Even otherwise, defendant No.2, after having resigned from the post of Secretary General, cannot claim himself to be the authorized representative of defendant No.1. In view of the above, I am of the clear view that the instant review application can be considered to have been filed only by defendant No.2, and there is no review application before me by or on behalf defendant No.1.

8. Adverting to the merits of the review application, Mr. Usman Tufail Shaikh, learned counsel for the plaintiff, raised a preliminary objection that the application is barred by limitation as it has been filed after expiration of 20 days which is the prescribed period of limitation for review. He submitted that the application is liable to be dismissed on this ground alone. In reply to this preliminary objection, learned counsel for defendant No.2 submitted that the application is not barred by time as Article 173 of the Limitation Act, 1908, would apply in this case, wherein the prescribed period of limitation is 90 days. This position was controverted by the learned counsel for the plaintiff by submitting that Article 162 of the Limitation Act, 1908, specifically provides limitation of 20 days for seeking review of judgment by a High Court in the exercise of its original jurisdiction ; and therefore, Article 173 providing limitation of 90 days relied upon by Mr. Ikram Ahmed Ansari, shall not apply in the instant case as the same applies to review of judgment except in the cases provided for by Articles 161 and 162. In support of this submission, he relied upon Riyaz Qasim V/S Messrs AMA (Pvt.) Ltd., 1999 CLC 445, and Sardar Ali and 3 others V/S Tehsil Municipal Administration through Tehsil Nazim, 2012 YLR 1686.

9. I have heard the learned counsel for the parties and have also examined the law cited at the bar. The order under review was passed by me on 28.10.2013, whereas the application for its review was presented on 26.11.2013, that is, after 29 days of passing the order. Article 173 of the Limitation Act, 1908, provides a limitation of 90 days for review of judgment except in cases provided for by Articles 161 and 162 of the said Act. Article 161 is not relevant to the instant case, as it deals with the review of a judgment by the Court of Small Causes or by a Court invested with the jurisdiction of a Court of Small Causes. Article 162 of the Limitation Act, 1908, prescribes limitation period of 20 days “For a review of judgment by a High Court in the exercise of its original jurisdiction” from “The date of the decree or order”. It is significant to note that Article 162 ibid has been made applicable specifically to cases where review is sought before the High Court in its original jurisdiction ; and, it has been made applicable not only to judgment / decree, but also to an order passed by the High Court. In view of the limitation prescribed specifically for the review of the judgment / decree or order of High Court, I have no hesitation in holding that the instant review application shall be governed by Article 162 ibid and not by Article 173 ibid. This view is supported by the cases of Riyaz Qasim (supra) and Sardar Ali (supra) relied upon by the learned counsel for the plaintiff. In the former case, it was held by a learned Division Bench of this Court that Article 162 ibid was applicable, under which an application for review before the High Court could be filed within 20 days from the date of decree or order ; and, since the application was not filed within the prescribed period, the same was barred by time. The same view was taken in the latter case by a learned Division Bench of the learned Lahore High Court.

10. In addition to the cases relied upon by the learned counsel for the plaintiff, reference may also be made to Natasha Hussain V/S Shabbir Hussain and 2 others, PLD 2013 Lahore 257, and Amjad Jan and others V/S Qazi Azizul Haq and others, 2009 SCMR 1022. In both these cases also, it was held that the limitation period of 20 days prescribed in Article 162 ibid shall apply in cases where review is sought before the High Court in its original jurisdiction. The first mentioned case was decided by a learned Division Bench of the learned Lahore High Court. In the last mentioned case, the Hon’ble Supreme Court was pleased to further hold that as the review application before the High Court was not filed within 20 days and it was not accompanied by an application under Section 5 of the Limitation Act, 1908, for condonation of the delay, it was liable to be dismissed. In Imtiaz Ali V/S Atta Muhammad and another, PLD 2008 Supreme Court 462, the Hon’ble Supreme Court was pleased to hold that the appeal, having been filed after one day of the period of limitation, had created valuable right in favour of the respondents. No sufficient cause was found for filing the appeal beyond the period of limitation, and the delay of only one day was not condoned by the Hon’ble Supreme Court.

11. In view of the above discussion, I have come to the conclusion that the instant review application filed by defendant No.2 is barred by time as the same was not filed within the limitation of 20 days prescribed in Article 162 ibid. Moreover, no application for condonation of the delay in filing the said application was filed. Accordingly, the review application is dismissed with no order as to costs.

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J U D G E

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