1989 PLP 3989 (MLD)

(b) Civil Procedure Code (V of 1908)

O.XLI, R.19--Limitation Act (IX of 1908), S.5--Re-admission of appeal dismissed in default--Delay--Condonation--Non-applicability of S.5 of the Limitation Act to applications for admission of appeals dismissed in default causing great hardship to innocent and bona fide litigants--Need for proper legislation in that behalf emphasised. Ashraf Ayoob for Appellant. Ashraf Ali for Respondents. Date of hearing: 22nd February, 1987. The appellant filed this appeal which was dismissed on 19-5-.1986. The appellant filed an application under Order XLI, Rule 19 C.P.C. on I1-8-1986 alongwith an application under Section 5 of the Limitation Act. The main ground shown in the affidavit was that the appellant's advocate was not aware of the date of hearing and did not appear in Court. A supplementary affidavit was filed in which it was stated that the relevant page of the cause list in which his case was printed was not received by him. At the outset it may be stated that if this was the main reason for non-appearance it should have been mentioned in the first affidavit and not in the second affidavit. Be that as it may, the main question is whether the provision of section 5 of the Limitation Act is applicable to application under Order XLI, Rule 19 C.P.C. According to Mr. Ashraf Ayoob the period of limitation should be computed from the date of the knowledge. He is however, not able to cite any authority or any provision of the limitation Act in support of his contention. Article 1(k8 of the Limitation Act clearly provides that an application for re-admission of appeal dismissed for want of prosecution should he filed within 30 days from the date of the dismissal and not from the date of knowledge.

2. So far its the application under Section 5 of the Limitation Act is concerned, it can he made only if it is applicable to a certain proceeding. Section 5 of the Limitation Act has not been made applicable the application under Order XI-1, Rule 19 C.P.C. Reference can he made to Muhammad Din v. Muhammad Salem 1979 S C M R

172. It may be noted that by Ordinance X of 1980 the provisions of section 5 of the Limitation Act were made applicable to application under Order IX, Rule 9(1) C.P.C. but no such amendment wits made with regard to Order XLI, Rule 19 C.P.C. The application under Section 5 of the Limitation Act is, therefore, not maintainable and it is dismissed. Consequently application under Order XLI, Rule 19 C.P.C. is also dismissed as barred by time.

3. Before parting with the judgment I may point out that due to non applicability of section 5 of the Limitation Act to application under Order XLI, Rule 19 and the restricted nature of Article 168 great hardship has been caused to the innocent and bona tide litigants. If Section 5 of the Limitation Act could B have been applied to Order IX, Rule 9(1) C.P.C. there is no reason not to apply it to Order XLI, Rule 19 C.P.C. Much water has flown under the bridge and it is high time that a proper legislation is made in this regard. The office should send a copy of this judgment to the Secretary, Ministry of Justice and Parliamentary Affairs, Government of Pakistan, Islamabad for perusal and necessary action. M.Z.S./M-896/K Application dismissed.