1983 PLP 2219 (CLC)

S.21-Civil Procedure Code (V of 1908), O. XLI, r. 19 Appeal, restoration of-Advocate filing personal affidavit that through oversight he missed case in daily cause list-Statement of Advocate. on. Record not denied and no reason to disbelieve same-Conduct of Advocate though somewhat negligent yet not contumacious-Non-appearance in circumstances neither intentional nor deliberate and appeal readmitted for hearing. (d) Sind Rented Premises Ordinance (XV II of 1979)- --S. 21-Civil Procedure Code (V of 1908), O. XLI; r. 19 Appeal, restoration of-Advocate heart patient and confined to bed for 4 months-His name in cause list on date of hearing wrongly printed misleading Advocate, looking after work in his absence-Fact supported by affidavit of Advocate looking after work-Such fact not denied in counter-affidavit-Sufficient cause for non-appearance shown-Appeal readmitted for hearing, in circumstances. A. G. Siddiqui for Appellant. Munir A. Malick and Khalid Humayun for Respondent. S. Inayae Ali: Amicus curiae. This order will govern the disposal of C. M. A. No. 5/82 (under section 5 of Limitation Act) and C. M. A. No. 6/82 (under Order XLI, rule 19 read with section 151, C. P. C.) filed in F. R. A. No. 500/80 and C. M. A. No. 173/82 (under section 151, C. P. C. and section 21 of Sind Rented Premises Ordinance, 1979) and C. M. A. No. 174/82 (under section 21 (2) of the Sind Rented Premises Ordinance, 1979, filed in F. R. A. No. 504/80. Both the above appeals which were filed under section 21 of the Sind Rented Premises Ordinance, 1979 (I will hereafter refer this Ordinance as "the Ordinance for the sake of convenience) were dismissed for non-prosecution and applications were filed for their re admission/restoration. F. R. A. No. 500/80 was dismissed on account of non-appearance of the appellant and his counsel on 2nd November, 1981 when it was fixed for regular hearing and application for its restoration/re admission was filed on 21st December, 1981, accompanied by an application under section 5 of the Limitation Act. Similarly, F. R. A. No. 504/80 was dismissed for non-prosecution on 8th September, 1981 when it was fixed for regular hearing and application for re-admission of the appeal was filed on 12th January, 1982 but in this case no application under section 5 of the Limitation Act was filed for extension of the period of limitation. When the above applications for restoration came up for hearing before me the learned counsel for the respondents raised a preliminary objection that the applications were barred by limitation having been filed much after the expiry of 30 days period from the date of dismissal of the appeal. The learned counsel relied upon Article 168 of the Limitation Act (I will hereafter refer the Limitation Act, 1908 as the Act) which prescribes a period of 30 days for filing of an application for re-admission of the appeal dismissed for want of prosecu tion. The counsel for the appellants in reply to the above objection contended that Article 168 of the Act does not apply to application filed for restoration/re-admission of an appeal filed under the provisions of the Ordinance, as the Code of Civil Procedure, 1908 (I will hereafter refer the Code of Civil Procedure as the Code) does not apply to such appeals. It was further contended by the learned counsel for the appellants that while hearing an appeal under section 21 of the Ordinance the High Court does not act as a Court within the meaning of Code of Civil Procedure and therefore, for that reason also Article 168 of the Act has no application to the proceedings for restoration of an appeal filed under section 21 of the Ordinance. The above contention raises an important question of, law which is likely to affect a large number of cases, therefore, besides hearing the learned counsel for the parties in these appeals I also heard Mr. Syed Inayatali, Advocate, who was appointed by me as amicus curiae. 2. The learned amicus curiae, expressed the view that Article 168 of the Act will apply to restoration of appeals filed under the Ordinance. It is urged that this Article being of general nature and governing the re admission of appeal generally dismissed for want of prosecution there is no reason to interpret it in a manner so as to restrict its application to only those appeals which are filed under the Code The learned amicus curiae pointed out that while various Articles contained in the 3rd Division of the 1st Schedule to the Act makes specific reference to the Code, the other Articles in the same division make no reference to the Code. It is accord ingly contended that where the Legislature wanted :o restrict the application of certain Articles of the Act to the proceedings under the Code only it is so mentioned. Therefore, where no mention of the Code is made in some Articles of the Act they were intended to apply to all proceedings including the proceedings under the Code. 3. I have given my anxious consideration to the contentions raised by the learned counsel for the parties as well as to the submissions made by learned amicus curiae. The learned counsel for the appellants mainly contended that the provisions of Limitation Act apply only to proceedings under the Code and which are before a Court. I am unable to accept this contention of appellants' counsel. Although in the preamble of the Act it is mentioned that the object of the Act is to consolidate and amend the law relating to limitation of suits, appeals and certain applications to Court but a closer look on various provisions of the Act will show that the provisions of the Act are not restricted in their application to proceedings before the Court alone. Section 29 of the Act provides that where a local or special law provides a period of limitation different from the period prescribed therefore, in the Ist Schedule to the Act, then only some of A provisions of the Act apply but where the period of limitation prescribed by the special or local law is the same as prescribed in the 1st Schedule of the Act then the whole of the Act becomes applicable. This section of the Act makes no distinction between the proceedings before a Court or tribunal. It is therefore not correct to say drat provisions of the Act will apply only to proceedings before the Court and not before a tribunal. 4. I will now examine the contention whether Article 168 of the Act applied to an application for restoration of an appeal filed under the Ordinance which was dismissed for default. The Ordinance is admittedly a special as well as a local law within the meaning of section 29 of the Act. It is not disputed that under the Ordinance, the period of limitation prescribed for filing an appeal before this Court is different from the period prescribed therefore, in the 1st Schedule to the Act. In these circumstances, in my humble view only those provisions of the Act which are mentioned in clause (a) of subsection (2) of section 29 of the Act will be applicable and therefore, Article 168 of the Act which prescribes the period for filing of an application for restoration of appeal dismissed for non-appearance will not be attracted. However in absence of any specific Article in the Act being applicable to such applications, the same should be filed within a reason able time which in my view should be equivalent to the period prescribed in the residuary Article 181 of the Act, as three years. While still on this point I may mention here the case of Afroze Begum v. Y. M. C. A. (PLD 1979SC18) where the Supreme Court while considering the applicability of Article 169 of the Act as application made for rehearing of an appeal heard ex parte under section 15 (4) of the West Pakistan Urban Rent Restriction Ordi nance 1959, held that this Article did not apply to such application which will be governed under Article 181 of the Act. I, therefore, hold that the two applications C. M. A. No. 6/82 in F. R. A. No. 500/80 and C. 114. A. No. 173/82 in F. R, A. No. 504/80 filed for restoration/re-admission of appeals are within time. Having held the applications for restoration/ re-admission of appeals within time I will now proceed to examine these applications on merits. 5. In C. M. A. No. 6/82 filed for restoration/re-admission of F. R. A. No. 500/80 the counsel for the appellant has filed his personal affidavit stating that through oversight he missed the case in the daily cause list an therefore, he could not attend the case on the date of hearing. This state ment of advocate on oath is not denied and even otherwise I do not find any reason to disbelieve the same. Although this conduct of the Advocate was somewhat negligent but it was not contumacious and therefore I am satisfied that his non-appearance on 2nd November, 1982 when the appeal was fixed for regular hearing was through a bona fide mistake and hi non-appearance was neither intentional nor deliberate. I, therefore, accept the application and re-admit the appeal to its file. The appeal will be fixed for final hearing on re-opening of the Court after summer vacation. 6. In F. R. A. No. 504/80 the application for restoration is also supported by the personal affidavit of the Advocate for the appel lant. It is stated in the affidavit that the Advocate is a heart patient and he was confined to bed for about 4 months and even at the time of filing affidavit he was Advised not to attend the work. It is further stated that his name in the cause list on the date of hearing was wrongly printed which misled the Advocate who was looking after the work in his absence. Mr. Khan Muhammad, the Advocate who was looking after the work of the Advocate for the appellant has also filed his personal affidavit supporting the above statement of the appellant's Advocate. These facts are not denied in the counter-affidavit but it is asserted that even if this statement was correct then also there was delay in making the application for restoration. Although there appears to be some delay in filing the application for restoration after the appellant came to know of the dismissal of the appeal but this delay has been sufficiently explained in the rejoinder affidavit filed on behalf of the appellant. I am, therefore, satisfied that sufficient cause has been shown for non-appearance of the appellant's counsel on the date of hearing and re-admit the appeal to its file. This appeal will also now be fixed for hearing on re-opening of the Court after summer vacation. Since these appeals have been restored the stay orders granted at the time of admission of these appeals stand revived. All the above-mentioned applications are disposed of accordingly. M. Y. M. Appeal allowed.