2009 PLP 1570 (YLR)

Laws Cited

Representation

• ----Ss.115 & 151---Limitation Act (IX of 1908), S.5---Dismissal of revision in default and for non-prosecution-Application for restoration---Limitation---Applicant who was 81 years old lady, her revision application having been dismissed in default and for non prosecution, she filed application for setting aside order, of dismissal and for restoration of revision application---Counsel representing the applicant had expired and after his death neither the applicant had any information about the date of hearing nor any intimation notice was sent to the applicant by the court for appearance in person---Question of vigilance of applicant found support from her affidavit as her son when came to know about the dismissal of the revision and death of counsel for applicant, he resorted to file application for restoration within six days from the date of knowledge---Applicant, in circumstances, had set up a sufficient cause requiring interference in the impugned order as the parties were entitled to a hearing on merits---Impugned order whereby revision was dismissed in default and non-prosecution, was set aside and revisional application was restored to its original position subject to payment of cost.
• Syed Tassawar Hussain Rizvi for Respondent.
• MRS. QAISER IQBAL, J.---This is an application moved by the applicant seeking set aside of the order dated 15-4-2008 whereby the Civil Revision Application was dismissed in default and for non-prosecution accompanied by the affidavit of the applicant wherein she has stated that being old and infirm lady she was not in a position to pursue her cause and was represented by Mr. Muhammad Sharif Advocate till his last breath, two of her sons presently are available in Pakistan. One of them namely Shahid Khan has been residing in Pakistan and had been pursuing his case through her Advocate who was vigilant in pursuing cause of the applicant. On number of occasions she contracted Mr. Muhammad Sharif Advocate on telephone as a precautionary measures called upon her son Shahid to visit the office of her Advocate, it transpired that the learned Advocate of the applicant has expired on 8-12-2007 upon further inquiry it was revealed that revision application was dismissed for non-prosecution. On 15-4-2008 son of the applicant made further queries from the office of the applicant's Advocate, his colleague was also not: available as he was appointed civil Judge in Northern Areas. In such situation the revision was dismissed in default and non-prosecution.
• In the counter affidavit filed by the respondent to controvert the contents of the affidavit by one Shahid Khan, legal representative of deceased Abdul Jabbar Khan it is emphatically stated that though Mr. Muhammad Sharif Advocate had expired but it was the duty of the applicant to be vigilant in pursuing her cause. Admittedly two of her sons are residing in Karachi. They could pursue the case when the instant revision was dismissed for non-prosecution. Subsequent thereof for two months intentionally or deliberately no move was made by the applicant whereas the application for restoration is accompanied by an application under section 5 of the Limitation Act has no bearing to the facts and circumstances of the case therefore the application in liable to be dismissed. In support of the above contention reliance is placed in case of Zulfiqar Ali v. Lal Deen (1974 SCMR 162), appeal which was dismissed for non-prosecution was not restored on account of the negligence of the counsel and also the negligence of the parties. The rule formulated is that the party as well as counsel both are bound so see that the appeal is properly and diligently prosecuted and lack in the performance of responsibility to Court was sufficient ground resulted in dismissal of the appeal. In case of Iqbal Ahmed v. Mst. Sharif un Nisa and others (PLD 1956 Lahore 1089) the scope of section 5 of the Limitation Act was taken into consideration it was observed that it will not apply to an application for restoration of an appeal. It is further laid down that section 5 in term applies to appeals, application for review or leave to appeal and to such other applications to which it may be made applicable by any enactment or rule for the time being in force. Since no rule has been framed under section 122 of the Civil Procedure Code to make section 5 of the Act applicable to an application for restoration of an appeal dismissed for non-prosecution therefore section 5 was not applicable.
• Learned counsel for applicant has contended that the applicant is aged about 81 years. She was not in a position to appear and pursue the cause personally, revision application was dismissed for -non-prosecution is liable to be restored as sufficient cause has been shown due to the death of her Advocate applicant was not aware of the date of hearing.
• I have considered the arguments advanced at bar. The factum of age of the applicant has not been denied by the respondent's representative in the counter affidavit, it is further stated that his sons were available in Karachi could pursue her cause on account of their negligence and on account of the absence of her counsel on the revision application was dismissed. The question requiring for determination is whether a sufficient cause so as to justify restoration has been made out or not in the instant case. Mr. Muhammad Sharif Advocate expired on 8-12-2007 after his death neither the applicant has any information about the date of hearing nor any intimation notice was sent to the applicant by the Court for appearance in person. The question of vigilance of the applicant finds support from her affidavit as her son Shahid as he came to know about the dismissal of the revision and death of her counsel on 13-9-2008 and has resorted to file application for restoration within six days from the date of the knowledge. In case of Farman Ali v. Muhammad Yousuf Ali (1990 CLC 1936 (Lahore)) the revision application was restored although it was barred by law on the point of non-appearance of the counsel as his name did not appear in the cause list and was deemed to be justified in the circumstances of the case though the applicant was put in beyond period of limitation yet the above ground .was taken to be sufficient cause and the delay was condoned so also in case of Muhammad Sharif v. Settlement Department etc. (1989 MLD 3342), the writ petition dismissed for non-appearance of petitioner when his counsel had notice of date of hearing was restored, on the principle that intimation to counsel is intimation to the petitioner would not disentitle petitioner for restoration of writ petition in a case where counsel does not inform petitioner about date of hearing. It was deemed to be a sufficient cause for .non-prosecution. So also in case of Fazal Hussain v. Mst. Musharraf Sultana (PLD 1992 Lahore 250), while adverting to the issue of restoration of the revision application dismissed default it has been laid down that under sections 151 and 115 of the Civil Procedure Code if the revision is dismissed in default could be restored in exercise of inherent powers of the Court. It is laid down that Court is possessed of inherent jurisdiction to recall and set aside an invalid .or an unjust order, to promote justice, and not to defeat its purpose as there is no limitation prescribed for filing a revision application under Code of Civil Procedure though 90 days practice is observed as rule in Courts and delay thereafter is required to be explained by the applicant. It is however hold that limitation did not bar or affect the exercise of inherent powers of the Court to make orders, which are necessary for the ends of justice or to prevent the abuse of the process of the Court.

Headnotes / Summary

Judgment & Decree