2023 PLP 739 (MLD)

C.M. No. 2-C of 2018 CH. MUHAMMAD IQBAL, J.

Through this application under section 5 of the Limitation Act, 1908 the applicant seeks condonation of delay occurred in filing the application for restoration of titled appeal, which was dismissed for non-prosecution on 25.06.2018.

2. The captioned appeal was fixed for hearing on 25.06.2018 when no one appeared on behalf of the applicant/appellant to prosecute the same, resultantly, appeal was dismissed for non-prosecution. The applicant/appellant filed application for restoration of the appeal (C.M. No.1-C/2018) on 03.09.2018 along with instant application (C.M. No.2-C/2018) under section 5 of the Limitation Act, 1908 with the prayer for condonation of delay.

3. I have heard the arguments of the learned counsel for the parties and have gone through the record with their able assistance.

4. Admittedly, appeal was dismissed for non-prosecution on 25.06.2018 and the application for its restoration was filed on 03.09.2018 after lapse of 69 days whereas under Article 168 of the Limitation Act, 1908, prescribed period for re-admission of an appeal dismissed for want of prosecution, is 30 days. For ready reference, aforesaid provision is reproduced as under:- Description of suit Period of limitation Time from which period begins to run 168:- For the re -admission of an appeal dismissed for want of prosecution. Thirty days The date of the dismissal. Along with the above application, applicant filed instant application under section 5 of the Limitation Act and perusal of the contents whereof shows that the applicant did not furnish any reasonable explanation regarding the non-pursuing the proceedings of the appeal whereas it is inalienable obligation of a litigating party to keep itself abreast of the proceedings of the case and pursue the matter diligently as adjudication of a case cannot be left pending at the whims and caprice of the party to select the suitable time for challenging or pursuing the matter according to their own choice. Moreover, it is requirement of law that if the counsel is not available then the party itself must be present to pursue the case vigilantly and any communication gap between the counsel and the client is not a good ground for condonation of the delay. The adjudicating forum has to administer/regulate the proceedings and also to make diligent/bona fide effort to decide the matter within possibly shortest span of time whereas the indolent litigant is not entitled for any relief. Reliance is placed on the case titled as Haji Ghulam Sarwar v. Daya Ram (1975 SCMR 179) wherein the Hon'ble Apex Court has held as under:- "Again, under Article 168 of the Limitation Act, the time, as rightly held by the High Court, begins to run from the date of the dismissal and not from the date of the knowledge of the dismissal. The High Court, therefore, rightly rejected the contentions advanced by the petitioner." Another reliance is placed on a case titled as Munir Hussain v. Changaz Khan and others (2011 SCMR 1424) wherein the Hon'ble Apex Court has held as under:- "

3. Having heard the learned Advocate Supreme Court, we do not subscribe to his view. The above judgment does not apply to the facts of the present case where the petitioner had been admittedly negligent and indolent in prosecuting his second appeal, filing of the application for restoration and failing to properly explain his delay. The petitioner also failed to particularize his application to seek condonation of delay. He neither raised any plausible ground nor did he disclose the date and day of his knowledge of the dismissal of the RSA. Such an indolence cultivates a right in the opposite party which, as repeatedly held by this Court, should not be lightly dislocated to maintain judicial balance." (emphasis supplied) Reliance can also be placed on the cases titled as Sindh Industrial Trading Estates v. West Pakistan Water and Power Development Authority (PLD 1991 SC 2511), State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others (2012 SCMR 280), Messrs Blue Star Spinning Mills Ltd. v. Collector of Sales Tax and others (2013 SCMR 587), Ghulam Hussain Ramzan Ali v. Collector of Customs (Preventive), Karachi (2014 SCMR 1594), Hussain Khan v. Mst. Ghanno Bibi (Deceased) and others (1997 CLC 1324), Shabrati v. Shaukat Ali Khan (1997 MLD 2884), Messrs Bengal Corporation and 8 others v. Middle East Bank Ltd. [PLD 2000 Karachi 326 (D.B)] and Iqbal Ahmad and others v. Government of through Secretary and others (PLD 2007 Karachi 353).

5. From perusal of the contents of the application under Section 5 of the Act ibid, no cogent and convincing reasons have has been furnished by the applicant/appellant regarding the inordinate delay occasioned in filing the application for restoration of the Appeal.

6. In view of above, no case for condonation of delay is made out, as such instant application (C.M. No.2-C/2018) for condonation of delay is dismissed. Consequently, the application for restoration of the titled appeal (C.M. No.1-C/2018) is also dismissed being barred by time. MWA/M-31/L Application dismissed.