2017 PLP 221 (CLCN)

ZAFAR AHMED RAJPUT, J.

By means of Statement dated 11.03.2016, the appellants seek withdrawal of Statement dated 07.03.2016, filed for the withdrawal of the C.M.A. No. 629 of 2015. Learned counsel has submitted that due to misconception of legal position as to non-application of the provisions of Order XLI, Rule 17, C.P.C. and Limitation Act, 1908, Statement dated 07.03.2016 was filed for the withdrawal of C.M.A. No. 629 of 2015; therefore, Statement, dated 07.03.2016, may be treated as withdrawn and said C.M.A. may be decided on merit. In view of above contention of learned counsel for the appellants, the Statement, dated 11.03.2016, is allowed and in result thereof Statement dated 07.03.2016 stands withdrawn. C.M.A. No. 629 of 2015. This is an application under section 5 of the Limitation Act, 1908 (the Act), filed by the appellants seeking condonation of delay in filing application for re-admission of appeal i.e. C.M.A. No. 233 of 2015. Facts necessary for the disposal of this application are that the appellants had preferred instant First Appeal against the judgment dated 17.03.1998 and decree dated 29.04.1998, whereby Suit bearing No.1521 of 1992, filed by the appellants/plaintiffs was dismissed by the learned Judge of Banking Court No. III, Karachi. The appeal was fixed for hearing on 28.8.2014 when it was dismissed for non-prosecution and; thereafter, on 12.1.2015 the appellants filed C.M.A. No. 233 of 2015 for setting aside the said order and re-admission of the appeal. Subsequently, on 11.3.2015, the appellants filed this C.M.A. for the condonation of delay in filing C.M.A. No. 233 of 2015. Heard the learned counsel for the appellant and perused the material available on record. Learned counsel has mainly contended that on 28.08.2014 the instant appeal was fixed for hearing at serial No. 106 and since several cases were also fixed before six different Benches of this Court wherein he had to appear, he deputed his Court Clerk to intimate this Court but when his Court Clerk reached before the Bench, the case had already been called and the Reader of the Bench informed him that the instant appeal was adjourned and; thereafter, at the end of winter vacations of High Court they checked the status of their pending cases, and found the instant appeal stood dismissed on account of non-prosecution. He has further contended that when this fact came to his knowledge, he immediately filed an application for the readmission of appeal being C.M.A. No. 233 of 2015 on 12.01.2015, but the office raised objections on 15.01.2015 with regard to the limitation; therefore, this C.M.A. was filed by him on 11.03.2015. The learned counsel has also contended that his absence on 28.08.2014 was not deliberate but owing to the fact that he was busy before other Benches of this Court, otherwise there was no reason for him not to appear in the case. He has also contended that the law favours adjudication of the matter between the parties on merits unless there are serious lapses on the part of the party to be not vigilant. In support of his contentions, the learned counsel has relied upon 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 evenmis information can be relied upon as explanation grounds for restoration of Appeal/Revision for default of appearance by lawyer. (ii) M. Muhammad Sadiq and another v. Punjab Raod Transport Board, Lahore through Managing Director (1991 SCMR 2321). It has been held by the Honourable Supreme Court of Pakistan that dismissal for want of prosecution under Order XLI, R. 17, C.P.C. is not a decision on merits and on application of the appellant the Court can readmit the appeal on such terms as to costs or otherwise as it thinks fit provided the appellant shows sufficient cause for his non-appearance. (iii) Sarwar Sultana and 5 others v. Ilam Din and 3 others (PLD 1989 SC 371). It has been held by the Honourable Supreme Court of Pakistan that where a counsel commits a genuine. mistake in making estimate of time, for reaching a Court as a result of which the case gets disposed of in his absence, depending upon the circumstances of each case, it would be good reason for recalling the order which was passed as a result of the counsel's absence. (iv) Mst. Mariam Bai and another v. Mst. Mehrunnisa Begum (1985 SCMR 2064). It was observed by the Honourable Supreme Court of Pakistan, while setting aside the impugned order of High Court and allowing appeal that no finding was existing in impugned order about negligence against the counsel for non-appearance on date of hearing and Apex Court held that having found no reason to question the cause shown by the counsel for the petitioners for his absence on the relevant rate, the Court ought to have accepted the application and restored the appeals to the file. (v) Mst. Begum and others v. Mst. Begum Kaniz Fatima Hayat and others (1989 SCMR 883). It has been held by the Honourable Supreme Court of Pakistan that the assertions of the counsel in his affidavit about his illness duly supported by the medical certificate, which had not been called in question by the defendant, could be accepted as established. (vi) Islamic Republic of Pakistan through the Secretary, Ministry of Defence, Government of Pakistan, Rawalpindi and another v. Amjad Ali Mirza (PLD 1977 SC 182). In this case an application for bringing on record the legal heirs of respondents was filed about a month beyond limitation for which no counter affidavit was filed to controvert the ground for condonation of delay. The Honourable Supreme Court of Pakistan held that non-filing of counter affidavit to the application alone should be good enough to justify the setting aside of the abatement of appeal. We have heard the learned counsel at length, perused the material available on record and also gone through the case-law cited by him. It appears that the instant appeal was dismissed for non-prosecution on 28.08.2014 and the application (C.M.A. No. 233 of 2015) for its re-admission was filed on 12.01.2015. It may be observed that 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, C.M.A. No. 233 of 2015 was/is barred by time for three and half months and for its condonation no application under section 5 of the Act was filed in the first instance. The objection in this regard was raised by the office of this Court on the presentation of C.M.A. No. 233 of 2015 and it was therefore, the appellants filed the application in hand on 11.03.2015, after two months of the filing of C.M.A. No. 233 of 2015. In a case where office of the Court pointed out delay in filing application for re-admission of the appeal, the application for condonation of delay must have been filed diligently and showing no further indolence. Hence the gross negligence on the part of the appellants is quite apparent in pursuing the remedy. As regard to the cause shown by the counsel for the appellants for his non-appearance before the Court on the day when the appeal was dismissed and for the condonation of delay in filing application for readmission of appeal, it may be noted that a direct allegation has been leveled against the Reader of the Court/Bench of misreporting the status of appeal, but no supporting affidavit of the counsel's Court Clerk has been filed; even his name is not mentioned in the application, thus, the explanation offered does not appear to be plausible and this fact brings the case of appellants in the area that the appellants have not approached the Court with clean hands. So far the contention of learned counsel for the appellants the law favours adjudication of the matter between the parties on merits is concerned, it may be observed that it is equally settled principle of law that law favours the vigilant not indolent or negligent and that for seeking condonation of delay beyond the limitation period each day to be explained with cogent and substantial reasons and in the present case appellants have miserably failed to assign sufficient cause for the condonation of delay. The case-law cited by the learned counsel for the appellants does not advance the case of the appellants as the same are distinguishable so far the facts of this case are concerned. The cases of Ghutam Qassim, M. Muhammad Sadiq, Sarwar Sultana and Mst. Marium Bai (supra) are on the principles held by the Honourable Supreme Court of Pakistan for the restoration of lis dismissed for non-prosecution wherein no question of limitation was involved. While in the case of Mst. Begum and Islamic Republic of Pakistan (supra) the applications for condonation of delay were filed along with application for restoration of suit and setting aside the abatement of appeal, respectively, with the affidavit of the concerned party/persons. For the fore-going facts and reasons, the application (C.M.A. No. 269 of 2015) is rejected and in consequence thereof the application for readmission of appeal i.e. C.M.A. No. 233 of 2015 stands dismissed being time barred. ZC/P-8/Sindh Petition dismissed.