1985 PLP 1619 (MLD)

The petitioners have filed the present petition for re-admission of their regular second appeal bearing No.43 of 1984, which was dismissed in default on 19-11-1984, on the ground that the petitioners' counsel could not appear on the date fixed for hearing of the appeal as his clerk had omitted to note the case in the cause-list inadvertently. Alongwith the petition an application under section 5 of the Limitation act has also been submitted by the petitioners for condonation of delay in filing the petition for re-admission of the appeal. It is stated in the application that the petitioners had no knowledge of the dismissal of their appeal and that they came to know about it only on 9-4-1985.

2. The main petition as well as the application under section 5 of the Limitation Act have been opposed by the respondent. The learned counsel for the respondent has contended that the petition for re-admission of the appeal is hopelessly time-barred and that the petitioners are not entitled to the condonation of delay as the provisions of section 5 of the Limitation Act are not applicable to petitions for re-admission of appeal dismissed in default. He has referred to Iqbal Ahmad v. Mst. Sharif-un-Nisa and others P L D 1967 Lah. 1098 in support of his contention that the provisions of section 5 of the Limitation Act are not applicable to petition for restoration of appeals dismissed in default. Learned counsel for the petitioners on the other hand has submitted that the petitioners have moved this Court for the re-admission of their appeal dismissed in default by invoking the inherent jurisdiction of the Court under section 151, C.P.C. The provisions of Article 168 are not applicable to their petition and in any case the Court has inherent jurisdiction to condone the delay in filing the petition for re-admission of appeal.

3. The petitioners appeal was dismissed in default under Order XLI, rule 11(2), C.P.C. due to the petitioners' failure to appear in Court on the date fixed for hearing of the appeal. Rule 19 of Order XLI, C.P.C. specifically deals with re--admission of appeals dismissed in default. The petitioners remedy after the dismissal of their appeal, therefore, was to move this Court under the above-mentioned provisions of law for re-admission of the appeal. It is well--settled that inherent jurisdiction of the Court conferred under section 151, C.P.C. cannot be invoked where remedy is available under a specific provision of law. The present petition, though purporting to have been filed under section 151 C.P.C, shall have to be construed as one under Order XLI, rule 19 C . P. C . The provisions of Article 168 of the Limitation Act under which petition for re-admission of appeal dismissed for wait of prosecution has to be filed within. 30 days from the dismissal of the appeal, cannot be allowed to be circumvented by the petitioners by .4 invoking the inherent jurisdiction of this Court under section 151, C.P.C. for re-admission of their appeal dismissed for default. As the petition has not been filed within the prescribed period of limitation i.e. 30 days of the dismissal of the appeal it is liable to be rejected are being time-barred. The provisions of section 5 of the Limitation Act under which the Court has been empowered to admit an appeal or application for revision or review of judgment or for leave to appeal or any other application to which the provisions of the section are applicable by or-under any enactment for the time being in force after the period of limitation prescribed therefore has expired if the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within the prescribed period of limitation are not applicable to the instant petition as has been held in Iqbal Ahmad's case cited by the learned counsel for the respondent. In view of the above legal position the petition for re-admission of appeal filed by the petitioners is dismissed with costs. H . B . T . Petition dismissed.