2016 PLP 61 (CLCN)

SHAH JEHAN KHAN AKHUNDZADA, J.

Through this judgment I intend to dispose of an application (C.M. No.01 of 2013) for restoration of Civil Revision No.373-P of 2012 which was dismissed for non-prosecution by this Court on 14/09/2012.

2. The relevant facts of the case are that Jehanzaib Sohail petitioner/plaintiff had instituted a suit for declaration etc against Mst.Shagufta Begum and others respondents/defendants regarding the house in dispute in the Court of senior Civil Judge, Peshawar. Along with the suit an application for the grant of temporary injunction restraining the respondents from alienating and disposing of the suit house in any manner whatsoever and also restraining them from dispossessing the petitioner/plaintiff from the suit house till the final disposal of the suit was also submitted. During the pendency of the suit despite issuing of temporary injunction the petitioner/plaintiff was dispossessed from the suit house and the registered sale deed in his favour was cancelled by Sub-Registrar Peshawar and thus the petitioner/plaintiff moved an application for impleadment of Sub-Registrar, Peshawar on 15/07/2007 which was allowed and the said Sub-Registrar was impleaded as defendant in the suit. After recording statement of P.W.1, the petitioner/plaintiff submitted another application on 18/10/2011 for amendment of his plaint which was resisted by the respondents/defendants and after hearing the learned counsel for parties, the learned trial Judge vide his judgment/order dated 20/10/2011 dismissed the said application as well as the main suit of the petitioner/plaintiff. The petitioner/plaintiff instead of filing appeal or revision filed review petition in the trial Court which too was dismissed vide judgment/order dated 11/01/2012. Hence the instant revision petition.

3. On 18/06/2012 the revision petition was adjourned to 14/09/2012 in presence of the petitioner and one Tahir son of respondent No.1. but on the said date learned counsel for the respondents was in attendance while none was present on behalf of the petitioner and thus the revision petition was dismissed for non-prosecution. Now the petitioner/plaintiff filed an application (C.M. No.01 of 2013) for restoration of the main revision petition with an application for condonation of delay under section 5 of the Limitation Act.

4. I have heard the learned counsel for the parties and have also gone through the material available on file.

5. Perusal of the order-sheets of this Court reveal that the revision petition was filed on 05/04/2012 which was fixed for hearing in motion on 14/05/2012 on which date the petitioner and learned counsel for the respondents were present who accepts notice on behalf of the respondents and the case was adjourned to 18/06/2012. Again on 18/06/2012 the case was adjourned to 14/09/2012 in presence of the petitioner and learned counsel for the respondents but on 14/09/2012 learned counsel for the respondents was present while none was present on behalf of the petitioner and the revision petition was dismissed for non-prosecution but the application for restoration of the same was made after 120 days on 02/01/2013 and the petitioner has failed to explain delay of each day and to show sufficient cause for his non-appearance when the revision was called for hearing which is mandatory. It is by now well recognized maxim for a party who seeks indulgence and condonation of delay under section 5 of the Limitation Act to account for and explain the delay of each day. In the instant case a perusal of application under section 5 of Limitation Act and the affidavit in support thereof show no sufficient cause for not filing the application for restoration of the revision petition within prescribed period. It is also settled proposition of law that when a valuable right has occrued to the other party by the lapse of time he could not be deprived of that right. It is also grund norms that the High Court has to see that justice should be done to both the parties according to law. For the basic route to guide the discretion whether the applicant has acted with reasonable diligence in presenting the application, reliance is placed on (2002 SCMR 1405) and (1990 CLC 1936).

6. In view of what has been discussed above I have no hesitation in finding that there is no sufficient cause disclosed by the petitioner due to which he failed to file application for restoration of the revision petition within time. Thus the applications for restoration of revision petition being time barred is dismissed along with application for condonation of delay being meritless. ZC/194/P Application dismissed.