2017 PLP 1741 (CLC)

ZAFAR AHMED RAJPUT, J.

By means of this application (CMA No.293/2013, under Order XLI, Rules 17 and 19 read with Section 151 C.P.C.), the appellant seeks setting aside the order dated 16.01.2013 whereby instant appeal was dismissed for non-prosecution.

2. Facts necessary for the disposal of the application are that the appellant preferred instant High Court Appeal against the Judgment and Decree dated 12.09.1991, whereby the Suit bearing No.308 of 1997 filed by the appellant/plaintiff was dismissed by the learned Single Judge of this Court. The appeal was fixed for hearing on 16.01.2013 when the same was dismissed for non-prosecution and; thereafter, on 20.02.2013 the instant application was filed by the appellant for setting-aside the said order and re-admission of the appeal.

3. Heard the learned counsel for the appellant and respondents and perused the material available on record.

4. The learned counsel for the appellant has mainly contended that on 16.01.2013 he attended the Court in the morning and when it appeared that the board being large with other cases the appeal might not be taken up; he left the court room to attend his other work. He has further contended that the law favours adjudication of lis between the parties on merits rather than its dismissal on technical grounds. While arguing on the point of maintainability of this application in terms of limitation, without filing an application for condonation of delay in filing instant application, he has contended that the appeal dismissed for non-prosecution could be restored under Section 151, C.P.C., and Article 181 of the Limitation Act, 1908 ("the Act") could be applied and there would be no need of filing application under Section 5 of the Act for the condonation of the delay. He has further contended that for the purpose of seeking re-admission of an appeal time runs from the date of knowledge and not from the date of dismissal and since the dismissal of the appeal came into his knowledge on 18.02.2013 through Mr. Ahmed Fazeel, counsel for the respondent No.1, his application is within time. In support of his contentions, the learned counsel has relied on the following case-law: (i) Ghulam Qassim v. Ghulam Hussain (PLD 1992 SC 577) It has been held by the Honourable Supreme Court of Pakistan that the human innocent failing like honesty, mis-calculation, mis-understanding, mis-timing or even mis-information can be relied upon as explanation grounds for restoration of Appeal/Revision for default of appearance by lawyer. (ii) (Ahmed Ali v. Registrar, Co-operative Societies (PLD 1971 Karachi 182). It has been held by the Division Bench of this Court that a second application under Order IX, C.P.C. for restoration of previous dismissed application under the same provision would lie, either under Order IX itself or under Section 151, C.P.C. and in such cases Article 181 of the Limitation Act, 1908 would be applicable being residuary article, which applies to all applications for which no express provision is made in the Limitation Act, 1908. (iii) Sabitri Bala v. Rohini Kanta Mondal (PLD 1953 Dacca 23). It has been held by the Division Bench of Dacca High Court that where an appeal was dismissed under the Rules of the Court and not under the Rule 11 or 17 or 18 of the Order XLI, C.P.C., the appeal could be restored in exercise of inherent powers of the Court under Section 151, C.P.C. (iv) S.J. Shah v. S.M. Alam (1982 CLC 622) It has been held by the learned Single Judge of this Court that the Article 14 of the Limitation Act does not apply where an official order is passed behind the person's back and in such a case limitation would start when aggrieved person comes to know of order passed by public officer. (v) Totomal and 6 others v. Deputy Commissioner and Additional Settlement Commission, Khairpur and 3 others) (PLD 1972 Karachi 116). It has been held by the learned Single Judge of this Court that a writ petition dismissed in default can be restored under Section 151, C.P.C. and the time shall begin from the date of knowledge of dismissal and not from the date of dismissal itself. (vi) Allah Ditta v. Muhammad Afzal (1995 CLC 292). It has been held by the learned Single Judge of Lahore High Court that there is no specific provision in the Code for restoration of an application of application for re-admission of an appeal dismissed for non-prosecution, but the Court has not only the power to dismiss a cause under its inherent jurisdiction in matters not specifically dealt with by the Code of Civil Procedure but also to restore the cause on sufficient ground being disclosed. (vii) Muhammad Afzal v. Muhammad Sharif (1994 CLC 2310). It has been held by the learned Single Judge of the Lahore High Court that the application for setting-aside ex parte proceedings would be governed by Article 181, Limitation Act, 1908, which provides three years period.

5. On the other hand, the learned counsel for the respondent No.1 has vehemently opposed this application. He has maintained that since the application is barred by time, it is not maintainable in law. He has invited our attention towards the orders sheets dated 14.12.2011, 08.05.2012 and 21.11.2012 and contended that the counsel for the appellant most of the times chose to remain absent and it was thereafter on 16.01.2013 that the appeal was dismissed for non-prosecution. He has prayed for the dismissal of the instant application with cost. In support of his contentions, the learned counsel has relied on the following case-law: (i) Sindh Industrial Trading Estate v. West Pakistan Water and Power Development Authority, (PLD 1991 Supreme Court 250). It has been held that if an application in a case which falls under the Order XLI, Rule 17(1) read with Rule 19 C.P.C. is not filed within the period prescribed by the Article 168, inherent power of the Court under Section 151, C.P.C. cannot be invoked. (ii) Lal Dino v. Deputy Commissioner and others (1982 SCMR 201). It has been held that for restoration of appeal dismissed for default and non-prosecution, Article 168, Limitation Act, 1908 is applicable and not the residuary Article 181, hence, prescribed limitation in such case is thirty days. (iii) Haji Ghulam Sarwar v. Daya Ram (1975 SCMR 179). It has been held that under Article 168 of the Limitation Act the time for re-admission of an appeal dismissed for want of prosecution begins to an from the date of the dismissal and not from the date of knowledge of the dismissal. (iv) Mst. Halima Tahir and 5 others v. Mst. Naheed Ejaz and 3 others (2010 MLD 554). It has been held by the Division Bench of this Court, comprising of one of us (Irfan Saadat Khan, J), that under Article 168 of the Limitation Act, 1908 the application for restoration of the appeal, dismissed for non-prosecution, is to be filed within thirty days from the date of dismissal and not from the date of knowledge and when the application was filed out of time, party filing such application has to explain each day of delay, more so valuable rights by efflux of time would occur to the opposite party.

6. The learned counsel for the respondent No.2, while adopting the arguments of the learned counsel for the respondent No.1, has contended that the case-law cited by the learned counsel for the appellant are distinguishable as the same relate either to the restoration of the suits or writ petitions or ex parte proceedings, while the instant application is for re-admission of the appeal under Order XLI, Rules 17 and 19, C.P.C. He has further contended that the application for re-admission of the appeal is time barred for 4 days and for condonation of delay no application under Section 5 of the Act has been filed; therefore, this application being not maintainable is liable to be dismissed.

7. It appears from the perusal of the record that before its dismissal for non-prosecution on 16.01.2013, the appeal was fixed on 14.12.2011 for regular hearing and Mr. R.F. Virjee, learned counsel for the appellant, requested for time; on that the matter was adjourned with caution to all the counsel to be prepared to proceed on next date else any counsel seeking adjournment shall be burdened with cost of not less than 25000/=. Thereafter, the matter was fixed on 08.05.2012, but could not proceed and was adjourned by the Court in the interest of justice, as Mr. Virjee was called absent. Then matter was fixed on 21.11.2012 but again adjourned as none was present. After that, the matter was fixed on 16.01.2013 when none was present for the appellant and the matter was dismissed by the Court for non-prosecution at 1:20 p.m. It is, thus, apparent that the conduct of the counsel for the appellant had left no choice with the Court, but to dismiss the appeal for non-prosecution.

8. The appeal was dismissed for non-prosecution on 16.01.2013, but the instant application for its re-admission has been filed on 20.02.2013. By virtue of added sub-rule (2) of the Rule 19 of Order XLI, C.P.C., the provisions of Section 5 of the Act has been made applicable to the applications seeking re-admission of an appeal under Rule 19(1) of Order XLI, C.P.C. The period of limitation for re-admission of an appeal under Rule 19(1) (ibid) is thirty days, under Article 168 of the Act. The time begins to run from the date of "dismissal" of appeal and not from the date of "knowledge". As such, the instant application is barred by time for four days and for its condonation no application under section 5 of the Act has been filed by the appellant.

9. We are not persuaded by the contentions of the learned counsel for the appellant regarding application of Section 151, C.P.C., and Article 181 of the Act for the restoration of appeal dismissed for non-prosecution. In this regard, it may be observed that it is a general principle of law that the inherent jurisdiction under Section 151, C.P.C. can only be invoked when no specific provision to meet a particular situation is available in C.P.C. It may further be added that the provisions of Section 151, C.P.C. cannot be invoked to defeat the provisions of C.P.C., nor can they be invoked to condone gross negligence of a party in a matter. However, the Court does not hesitate in entertaining an application under section 151, C.P.C. and exercising its inherent powers in respect of an order for which the fault lies with the Court itself although the period prescribed under the limitation law for challenging such an order may have expired, but this rule is not applicable here, as in the case in hand the fault lies with the appellant, not with the Court, for passing the order of dismissal of appeal for non-prosecution. In similar terms, Article 181 of the Act is residuary and applies to all the matters in respect of which no period of limitation is provided. If an application is governed by any other Article in the Schedule (as in present case the application under Order XLI, Rule 19(1), C.P.C. is governed by Article 168 of the Act), Article 181 of the Act being residuary Article will not apply. The case-law thus cited by the learned counsel for the appellant are distinguishable so far the facts of the case in hand are concerned.

10. For the foregoing facts and reasons, instant application for re-admission of appeal filed after expiry of the prescribed period merits dismissal as time barred.

11. Above are the reasons of our short order dated 04.03.2016. MH/S-44/Sindh Application dismissed.