1984 PLP 2131 (CLC)

Laws Cited

Representation

• Ch. Khurshid Ahmad for Petitioner.
• Akhtar Mir Warsi for Respondents.
• Date of hearing : 19th February, 1984.
• This constitution petition is directed against the order, dated 8th July, 1981 of the learned Additional District Judge whereby he refused to restore the appeal of the petitioner dismissed for non‑prosecution, vide order, dated 30th March, 1981. The learned Appellate Court was of the view that the explanation offered for non‑appearance on the date of hearing did not constitute a sufficient cause for restoration of the appeal and, as such, he refused to re‑admit the appeal. The explana tion given was that on 3rd February, 1981 on account of some misunder standing, the petitioner took the next date as 31st March, 1981 and when he appeared in the Court on 31st March, 1981 he came to know that the appeal was dismissed for default on 30th March, 1981. This explanation was not accepted as in between these two dates the appeal was fixed on 22nd February, 1981 and on the said date the petitioner was present and the matter was adjourned to 30th March, 1981. This position has now been accepted by the learned counsel before me and, as such, he does not press the plea that the explanation offered before the appellate Court constituted a sufficient cause for re‑admitting the appeal dismissed for non‑prosecution. He, however, argued that an application under Order XLI, rule 27, C. P. C. filed by the petitioner was being fixed since x7th January, 1981 and that the appeal itself was not fixed for hearing and, as such on account of absence of the petitioner and his counsel, the said application could at best be dismissed and not the appeal itself. This plea is not available to the petitioner as the same was admittedly not taken in the application for restoration of the appeal. A copy of the order‑sheet appended with this petition shows that on 22nd February, 1981 the matter was adjourned to 30th March, 1981 without specifying that it was the application for additional evidence which was to come up for arguments. Had the appeal not been fixed for the said date and it was only the application which was adjourned to the said date, the said plea must have been taken in the application for restoration. This plea having not been taken before the appellate Court, cannot be allowed to be urged for the first time in constitutional jurisdiction. This being the position, no justifiable excep tion can be taken to the order, dated 8th July, 1981 dismissing the appli cation for restoration and thus refusing to restore the appeal. This constitution petition, therefore, fails and is dismissed with costs.
• 2. At this stage, learned counsel for the petitioner, however, seeks time to deliver the vacant possession of the shop. Learned counsel for respondent No. 1 is prepared to allow three months' time subject to the payment of rent. The ejectment order shall not, therefore, be executed for a period of three months from today subject to payment of rent, and delivery of vacant possession voluntarily on expiry of these three months.

Headnotes / Summary

Judgment & Decree