2008 PLP 498 (CLC)

For orders on Office Objections. For hearing of C.M.As.Nos.4012 and 6969 of 2005. NADEEM AZHAR SIDDIQI, J.

By this application the plaintiff has prayed for condonation of one-day delay in filing the application under Order IX, rule 4, C.P.C. The learned counsel for the plaintiff submits that the suit was dismissed on 11-4-2005 and the restoration application has been filed on 11-5-2005 and at the best there is only one-day delay in filing of the said application. He further submits that in the similar circumstances the learned Single Bench of this Court has condoned one-day delay in filing of the restoration application. He has also produced photocopy of the order dated 17-9-2007 passed in Suit No. Nil of 2004 (Port Qasim Authority v. Siraj Valliani). Earlier when this matter was taken up for hearing on 5-8-2005 the learned counsel submits that the time shall start running from 12-4-2005 from the next date of passing of the order. Subsection (1) of section 12 of the Limitation Act, 1908, deals with exclusion of time in legal proceedings and provides that in computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded. In view of the above provision it appears that the day on which the order was passed is to be excluded and the time starts running from the next date which is 12-4-2005 and the last date for filing of the restoration application was 11-5-2005. The restoration application was filed on 11-5-2005. For the above reason it appears that there appears no delay in filing of the restoration application, hence the application is disposed of with the above observation.

2. By this application the plaintiff has prayed for restoration of the suit dismissed for non-prosecution on 11-4-2005. The reason for restoration of the application as mentioned in the affidavit is that the counsel for the plaintiff Mr. M. Umer Qureshi felt seriously sick and due to his illness he could not attend this case. It was further stated in the affidavit that the plaintiff was under the impression that the matter was being properly prosecuted and that non-appearance of the learned counsel for the plaintiff and the plaintiff was, a result of circumstances beyond their control and was due to force measure. The learned counsel has further referred to the order by which the other suits dismissed in similar circumstances were restored. The learned counsel submits that sufficient cause for restoration has been shown and that the suit was dismissed before issuance of summons to the defendant and the suit can be restored without hearing of the defendant. The cause shown in the application appears to be reasonable and in view of showing sufficient cause the order dated 11-4-2005 is recalled and the suit is restored to its original position. The application is disposed of.

1. Office has raised objections that the suit is barred by Article 110 of the Limitation Act, 1908. The learned counsel for 'the plaintiff submits that Article 149 of the Limitation Act will apply. He further submits that the suit was filed for recovery of land rent and other charges and this is a continuous and recurring cause of action and the suit is not barred by limitation and submits that the cause of action as stated in the plaint accrued on 8-5-2001 and 4-12-2003 and the suit was presented in the office on 26-4-2004 and the same is not barred by limitation. The submissions made by the learned counsel for the plaintiff have some force. Office objection has to be seen in terms of the contents of the plaint. In the plaint the cause of action has been pleaded as accrued on 8-5-2001 and according to Article 110 of the Limitation Act, 1908 a suit for recovery of arrears of rent may be filed within three years when the arrears become due. In view of the above, the objection is overruled. Office is directed to register the suit. Adjourned to a date in office. M.H./P-30/K Order accordingly.