P L D 1997 Peshawar 55 (PLP)
JAMILA BEGUM and others‑‑‑Petitioners Versus ABDULLAH JAN and others‑‑‑Respondents
| Citation | P L D 1997 Peshawar 55 (PLP) |
| Forum / Court | |
| Bench Members | Qazi Muhammad Farooq, J |
| Parties | JAMILA BEGUM and others‑‑‑Petitioners Versus ABDULLAH JAN and others‑‑‑Respondents |
Q1: What are the key laws and sections cited in P L D 1997 Peshawar 55 (PLP)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case P L D 1997 Peshawar 55 (PLP)?
The case was heard and decided by the bench comprising: Qazi Muhammad Farooq, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: P L D 1997 Peshawar 55 (PLP) (JAMILA BEGUM and others‑‑‑Petitioners Versus ABDULLAH JAN and others‑‑‑Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- ‑‑‑‑O.IX, Rr.8 & 9‑‑‑Limitation Act (IX of 1908), Arts. 163 & 181‑‑‑Dismissal of suit in default‑‑‑Restoration‑‑‑Suit filed by plaintiff was dismissed in default and application for restoration of suit filed by plaintiffs was also dismissed by Trial Court as time‑barred, but in appeal filed by plaintiffs against order of Trial Court, Appellate Court below set aside order of Trial Court and allowed restoration of suit‑‑‑Defendants had challenged order of Appellate Court below contending that application filed by plaintiffs for restoration of suit was to be governed by Art. 163 of Limitation Act, 1908 which provided thirty days for filing such application whereas application was filed by plaintiffs after seventy seven days from dismissal of suit‑‑‑Defendants also alleged that application for restoration of suit having not been accompanied by an application for condonation of delay such application was not maintainable‑‑‑Date on which suit was dismissed for non‑prosecution having been given by Reader of the Court and not by Presiding Officer, such date could not be treated as a date of hearing within contemplation of O. IX, R.8, C.P.C.‑‑‑Period of limitation for filing application for restoration of suit thus was to be determined in the light of Art. 181 of Limitation Act, 1908 which provided period of three years for filing application and not Art. 163 of that Act‑‑‑Application for restoration of suit filed after seventy‑seven days from dismissal of suit, therefore, was well within time‑‑‑Even otherwise cause for non‑appearance highlighted by plaintiffs in their application for restorations of suit being a "sufficient cause" within contemplation of O.IX, R.9, C.P.C.. suit was rightly restored‑‑‑In absence of any delay in filing application for restoration of suit there was no need to file application for condonation of delay and delay was condonable without a formal application in view of fact that act of Court should prejudice no one.
- Haji Muhammad Zahir Shah for Petitioners.
- Amir Muhammad Khan for Respondents.
- Date of hearing: 25th October, 1995.
Headnotes / Summary
(a) Civil Procedure Code (V of 1908)‑‑‑ M. Shafique Shah and another v. Mst. Irshad Begum and 8 others 1981 CLC 369; Abdul Rahman and another v. Mukhtar Ahmad and another 1985 CLC 1072 and Muhammad Qasim and others v. Mouiuddin and others 1995 SCMR 218 ref. (b) Administration of justice‑‑‑ ‑‑‑‑ Act of Court should prejudice no one.
Judgment & Decree
A suit for possession of certain property by partition brought by the respondents was dismissed in default on 19‑7‑1989. The application filed by them for its restoration on 5‑10‑1989 was also dismissed as time‑barred on 13‑9‑1992 by the learned trial Court. However, the appeal filed by the respondents was accepted by the learned Additional District Judge, Kohat on 2‑2‑1994 and the order of the learned Trial Court was set aside on payment of Rs.500 as costs and the case was sent to the Trial Court for further proceedings.. Feeling aggrieved the petitioners have filed this revision petition.
2. It was contended by the learned counsel for the petitioners that the application of the respondents was governed by Article 163 of the Limitation Act and having been brought after 77 days instead of 30 days was badly barred by limitation. It was further contended that the application for restoration of the suit having not been accompanied by an application for condonation of delay was not at all maintainable. Reliance was placed on M. Shafique Shah and another v. Mst. Irshad Begum and 8 others (1981 CLC 369) and Abdul Rahman and another v. Mukhtar Ahmad and another (1985 CLC 1072).
3. The learned counsel for the respondents defended the impugned order by contending that the suit was dismissed on a date given by the Reader of the Court and not by the Presiding Officer, therefore, the application was governed by Article 181 of the Limitation Act and having been filed within a period of three years from the date of knowledge of the dismissal was well within time. Reliance was placed on Muhammad Qasim and others v. Mouiuddin and others (1995 SCMR 218), wherein it was held that a date given by the Reader of the Court cannot be treated as a date of hearing, therefore, an order of dismissal passed on such a date for non‑prosecution is a nullity in the eyes of law.
4. The contention raised by the learned counsel for the respondents has a definite edge over the arguments advanced by the learned counsel for the petitioners because the date on which the suit was dismissed for non‑prosecution having been given by the Reader of the Court and not by the Presiding Officer cannot be treated as a date of hearing within the contemplation of Order 9, Rule 8, C.P.C. and as such the period of limitation is to be determined in the light of Article 181 and not Article 163 of the Limitation Act. In any event the cause for non‑appearance highlighted in the application is a "sufficient cause" within the import of Order 9, Rule 9, C.P.C. As regards the authorities cited by the learned counsel for the petitioners it would suffice to say that there being no delay in filing the application for restoration of the suit there was no need to file an' application for condonation of delay. and in any case the delay was condonable without a formal application in view of the well‑known maxim that an act of Court shall prejudice no one. This revision petition is, therefore, dismissed. Parties to bear their own costs. H.B.T./2012/P Revision dismissed.