1990 PLP 621 (CLC)

This application has been filed for restoration of the first rent appeal dismissed for non‑prosecution on 21‑3‑1989. Briefly the facts are that the Rent Controller (East) Karachi had directed the ejectment of the present appellant from the premises in dispute vide order passed on 26‑9‑1988. The present appellant being aggrieved from the said order had filed the first rent appeal which was admitted on 26‑10‑1988 and after due service on the respondent the appeal came up for regular hearing on 21‑3‑1989. When the appellant and his counsel were called absent while the Advocates for the respondent were present and the appeal was dismssed for non‑prosecution. The Advocate for the appellant has moved this application on 10‑5‑1989 for restoration of the appeal i.e. 50 days after the order of dismissal for non prosecution was passed. I have heard Mr. Muhammad Hashim Khan, learned counsel for the appellant who has filed his personal affidavit stating therein that through an oversight he missed the case in the cause list and as such neither he nor the appellant could attend the Court on the said date. The learned counsel has contended that this is sufficient cause for restoration of the appeal. He has placed reliance‑on the case of Yousuf v. Fazal Karim 1983 CLC 2219 wherein it has been held:‑‑ "This statement of Advocate on oath is not denied and even otherwise I do not find any reason to disbelieve the same. Although this conduct of the advocate was somewhat negligent but it was not contumacious and therefore I am satisfied that his non‑appearance on 2‑11‑1982 when the appeal was fixed for regular hearing was through a bona fide mistake and his non‑appearance was neither intentional nor deliberate. 1, therefore, accept the application and re‑admit the appeal to its file. The appeal will be fixed for final hearing on re‑opening of the Court after summer vacation." Mr. Feroze Khan, learned counsel for the respondent has opposed this application of the appellant and has contended that the reasons advanced by the Advocate for the appellant cannot be treated as sufficient cause but it amounts to a negligence on part of the Advocate which cannot be condoned. However, in view of the above decision of this Court I am inclined to accept the abovesaidlA reasons advanced by the Advocate for the appellant to be sufficient cause fort restoration. Mr. Feroze Khan, learned counsel for the respondent then took another objection to the effect that the present application for restoration of the appeal having been made after a period of 30 days is time‑barred and cannot be accepted. The learned counsel has placed reliance on the provisions of Article 168 of the Limitation Act which provides for a period of 30 days within which such application can be moved. He has placed reliance on the case of Dr. Munawar v. Ahmad Ali Siddiqui 1983 CLC 2076. On the other hand Mr. Muhammad Hashim Khan, learned counsel for the appellant has contended that it will be Art.181 of the Limitation Act that will apply to the present case and not Art.

168. He has placed reliance on the above‑cited case Yousuf v. Fazal Karim. I have given anxious consideration to the contentions of the learned counsel and the decisions of this Court in view of the above two cited cases. It may be observed that in the case of Yousuf v. Faza1 Karim it has been held that it would be Article 181 of the Limitation Act that would be applicable and not Article 168 of the said Act. Reliance has been placed on the case of Afzal Begum v. YMCA PLD 1979 SC 18 wherein the provisions of Articles 164 and 169 of the Limitation Act were considered by their Lordhips. In this Supreme Court case the application was moved under Order XLI, Rule 21, C.P.C. for "re‑hearing of an appeal" which was heard and decided ex parte and, therefore, the provisions of Article 169 of the Limitation Act were taken into consideration and it was held that since the order passed in a rent appeal is not by itself a . executable as a decree, therefore, Article 169 would not be applicable. .~ against this in case of dismissal of rent appeal for non‑prosecution there is no decree passed but it is only an order and Article 168 makes the specific p,‑ Nvision s whereby the period of 30 days is provided. It will be advantageous to reproduce here the two Articles:‑ ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ Description of application Period of Time from which period limitation begins to run ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ 168.‑ For the readmission (Thirty days) The date of the dismissal of an appeal dismissed for want of prosecution.

169. For the re‑hearing of (Thirty days) an appeal heard ex parte The date of the decree in appeal, or, ‑ where notice of the appeal was not duly served, when the applicant has knowledge of the decree. The plain reading of the column 3 of the abovesaid two Articles will show that Article 169 is applicable only where the rehearing of an appeal, culminating in a decree; is sought while in case of Article 168 it is the readmission of the appeal which is sought after the order of dismissal. It may also be observed that in case where the prayer is for rehearing of the appeal decided ex parte the starting point of limitation is the date or knowledge of decree while the starting point in case where the appeal is dismissed for want of prosecution is the date of dismissal. From this it is obvious that in case the prayer is for rehearing of a rent appeal, heard and decided ex parte, it will be Article 181 of the Limitation Act that. would 13 apply and not Article 169 which is applicable only where such decision results in :j decree. From the above discussion I am of the view that the case of Mst. Afzal Begum is not applicable to the present case which will be governed by Article 168 as laid down in the case of Lai Dino and others v. Deputy Commissioner and others 1982 SCMR 201 which has been followed by this Court in the case of Dr. Munawar v. Ahmad Ali. For the above reasons the applications C.M.A. No.727/89 and C.MA. Ic No.728/89 are dismissed with no order as to costs. AA./A‑640/K Applications dismissed.