1989 PLP 1275 (MLD)

This is an application for restoration of the appeal dismissed for non prosecution on 16‑5‑1987:

2. Earlier the appellant Lahore Improvement Trust was represented by Syed Virasat Hussain Naqvi, Advocate. He died and in his place Mr. Asad Ullah Siddiqui, Advocate, appeared on the penultimate date namely, 12‑5‑1987. He suggested to the Court to issue a notice to the appellant‑Trust as they had engaged another lawyer to represent them in the appeal. Consequently an urgent notice war, ordered to be issued to them for 10r5‑1987. Nobody appeared on their behalf on the said date. It was, however, thought that since an urgent notice was addressed to them, it must have been served upon them in the ordinary course; the same constituted sufficient service and, therefore, the appeal was dismissed for non‑prosecution.

3. The C.M. under consideration was filed on 16‑1‑1985 stating that the urgent notice issued on 12‑5‑1987 was entrusted to the process server on 16‑5‑1987 itself and that he made a report on its reverse side to the effect that there was no time left for service. He accordingly returned it without service with a request to extend time for the purpose. Alongside, the appellant made an application under section 5 of the Limitation Act for condonation of delay reiterating the same ground. Of course, additionally they mentioned that the correct nomenclature of the appellant namely, the Lahore Improvement Trust was not shown in the cause list and that instead it was wrongly described as `Labour Improvement Trust' for which reason their counsel could not take due notice of the hearing of the appeal

4. The respondent opposed the C.M. in his detailed reply dated 9‑3‑1988 where he contended that a copy of the order dated 16‑5‑1987 dismissing the appeal was produced by him before the executing Court on 14‑11‑1987 in presence of the appellant's counsel who came to know of it eversince, and if for any reason the appellant had no notice earlier of the hearing fixed for 16‑5‑1987, they had acquired sufficient knowledge thereof on 14‑t 1‑1987 which would be the terminus a quo for counting limitation of thirty days for making the application. According to, him, it lapsed by the 13th of December. 1987, and the application for restoration filed on 16‑1‑1988 was hopelessly barred by time. He further urged that no reason was advanced to explain away the delay suffered by the appellant after 13‑12‑1987 till filing of the application.

5. Mr. Khakan Babar for the appellant‑Trust seriously argued that the urgent notice; dated 12‑5‑1987 could not be served upon them for no fault of heirs and that they may riot be punished for a fault of the Court in issuing tile notice late or without waiting for‑its return with the report of the process‑server. He emphasised that ordinarily it should have been regarded a case of non‑return of the process after service rather than to act upon a converse assumption of believing it to have been received by the appellant in due course. HC added that if notice had been issued for any next date by showing the correct nomenclature of the appellant as `Lahore Improvement Trust', there was every possibility of hip receiving it through the cause list and, that he would have been responsible in that event to take charge of the case. He canvassed that in the typical circumstances, narrated above, the notice was not sent, nor was even received back in time, nor was a" fresh notice issued and that practically the appellant ‑applicant was condemned unheard.

6. In regard to acquiring knowledge of dismissal of appeal on 1‑1‑11‑1987 before the executing Court where a copy of the relevant order was said to have been filed, Mr. Khakan Babar observed that some counsel may have noted the existence of the: order and that since he was not concerned with the appeal pending in the High Court, he may not have attached much importance to it as it did not directly relate to his job in the course of execution proceedings. He still further pointed out that a dozen of counsel were engaged by the Improvement Trust to represent them in various Courts at lower level and that somebody's omission or indifference at that level may not be used against the appellant to preclude them from pursuing their appeal to the High Court.

7. On the other hand, Mr. S.M. Masud Advocate took exception to the long delay in making the application especially after 14‑11‑1987 when the applicant as a juristic person came to know of the existence of the order, dated 16‑5‑1987, whereby their appeal was dismissed. He cited Commissioner of Income‑Tax v. Rais Pir Ahmad Khan (1981 S C M R 37) in support of the claim that neither the Government, nor any of its Departments including the applicant would be entitled to any concession in the matter of applying limitation: Rather by virtue of the facilities available to them, they were expected to be more active, attentive and efficient in pursuing cases before the Courts of law.

8. The fact remains that the appellant‑Trust got knowledge of the dismissal of the appeal on 14‑11‑1987 when a copy of the relevant order was placed before the executing Court. The same decree, was being executed there and it should have evidently evoked awareness on the part of the appellant‑applicant to see that in time. The application was made on 16‑1‑1988, that is their appeal was restored a little more than two months after the applicant came to know of dismissal of the No plausible explanation has been offered for this delay. The ground appeal urged by Mr. Khakan Babar that somebody dealing with the cases of Improvement Trust at lower level may be held responsible for running out the time against the appellant in the context of the present application is not acceptable. The Supreme Court in clear terms laid down in the Commissioner of Income Tax's case, that they cannot be treated differently. It obviously meant that they had to explain delay of each individual day starting from 13‑12‑1987 upto 16-1-1988 when the present application was filed.

7. I would have given some place to the argument that urgent notice was not served and that its return without service was a material circumstance, but the fact that the applicant came to know of dismissal of the appeal in the course of E execution proceedings, would reduce the weight of the above 'contention. Even if, therefore, the order of dismissal was void, for non‑service of the notice, subsequent knowledge thereof on the part of the appellant should have persuaded them to file the present application within thirty days at least from the date of knowledge. In S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore, and another (1978 S C M R 367) it has been laid down that even to challenge void orders, limitation is attracted. The old concept that such' orders may not be challenged or that no limitation applied to them for the purposes of challenging them, is no more obtaining these days.

8. As a result, the C.M. No.148‑C,1988 is dismissed. M.Z.S./L‑56/L Application dismissed.