1987 PLP 767 (SCMR)

(On appeal from the judgment and order of the Lahore High Court, Lahore in Regular Second Appeal No.53 of 1969, dated 5th November, 1984). ‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), O. XLI, Rr.19 & 21‑‑Law Reforms Ordinance (XII of 1972)‑‑Dismissal of appeal for non‑prosecution‑‑Restoration of‑‑Power of High Court‑‑Plea that after promulgation of Law Reforms Ordinance 1972, since right of appeal against an order passed by High Court refusing to restore an appeal had been deleted, High Court was not left with power to dismiss an appeal for non‑prosecution or in default, repelled‑‑Held, if framer of law had closed an available remedy of appeal, then it could not possibly mean that power of High Court to act under provisions of O. XLI, R. 19, C.P.C. could not be exercised‑‑Closing of a remedy, of so was in wisdom of framer or legislator of a law, could not impose any fetters on power of High Court to Act under O. XL1, R.19, C . P. C . where the facts so warranted‑‑Closing of available remedy by way of appeal against an order passed by High Court refusing to restore an appeal by Law Reforms Ordinance, 1972 would not mean that High Court was also deprived of its powers under O. XLI, R. 19, C.P.C. to readmit appeal dismissed for default in appropriate cases. Ch. Abdur Rehman Cheema, Advocate Supreme Court instructed by Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioner. Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Respondent. Date of hearing: 18th January, 1987 JAVID IQBAL, J.‑‑ This petition for leave to appeal is directed against an order of a learned Single Judge of the Lahore High Court Lahore, dated 5th November, 1984 whereby the application for re‑admission of R.S.A. No. 53 of the petitioner which had previously been dismissed for non‑prosecution, was dismissed on merits for the reason that sufficient cause had not been made out for seeking restoration. We brought it to the notice of the learned counsel for the petitioner that we would decline to interfere on merits as there is no justification for that, and that if he has any legal point to urge in this case he may do so. The legal point raised by the learned counsel is that the learned Single Judge of the Lahore High Court, Lahore could not dismiss R.S.A. No.53 of 1969 for non‑prosecution because of the change of law due to promulgation of Law Reforms Ordinance, 1972. It was submitted that previously an order passed by the High Court refusing to restore an appeal was appealable under clause 10 of the Letters Patent which has now been repealed by the Law Reforms Ordinance, 1972. Consequently, the framer of the law in his wisdom has closed the remedy available to the public under the law. Since no other legal provision is available to allow the petitioner any relief in such circumstances, as an appeal dismissed for non‑prosecution cannot be restored, other provision which empowered the High Court to dismiss an appeal for non‑prosecution or in default would also not be enforceable. It was submitted that before the promulgation of the Law Reforms Ordinance, 1972 an appeal lay against the order of refusal to restore! re‑admit under Order XLI, Rule 19, C.P.C. or under Order XLL, Rule 21, C.P.C., but after promulgation of the aforesaid Ordinance since the right of appeal had been deleted, the High Court is not left with any power to dismiss an appeal for non‑prosecution or in default under Order XLI, Rule 19, C . P. C. We have considered this argument of the learned counsel but find it falacious. If the framer of a law has closed an available remedy of appeal then it could not possibly mean that the power of the High Court to act under the provisions of Order XLI, A Rule 19, C.P.C. could not be exercised. The closing of a remedy if so, is in the wisdom of the framer or the legislator of a law. But it could not impose any fetters on the power of the High Court to act under Order XLI, Rule 19, C.P. C. where the facts so warranted. No other legal point was urged. Therefore, we do not find any substance in this petition which is accordingly dismissed. M.I./A‑15/S Petition dismissed .