2014 PLP 1078 (MLD)
Chaudhary MUHAMMAD YASEEN — Appellant Versus ABID WASEEM — Respondent
| Citation | 2014 PLP 1078 (MLD) |
| Forum / Court | Sindh |
| Bench Members | Hasan Feroz, J |
| Parties | Chaudhary MUHAMMAD YASEEN — Appellant Versus ABID WASEEM — Respondent |
| Primary Law | Civil Procedure Code (V of 1908) |
Q1: What are the key laws and sections cited in 2014 PLP 1078 (MLD)?
This judgment primarily cites: Civil Procedure Code (V of 1908) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2014 PLP 1078 (MLD)?
The case was heard and decided by the Sindh bench comprising: Hasan Feroz, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2014 PLP 1078 (MLD) (Chaudhary MUHAMMAD YASEEN — Appellant Versus ABID WASEEM — Respondent). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Tariq Mahmood for Appellant.
- Raja Muhammad Sabir for Respondent.
- Date of hearing: 23rd January, 2014.
Headnotes / Summary
O. XLI, R. 19
Limitation Act (IX of 1908), S. 5
Scope
Contention of applicant was that he could not furnish court fee due to his illness
Applicant had paid court fee after dismissal of his appeal with an application for condonation of delay
Conduct of applicant with the deposit of court fee and his inability for appearing on the date fixed for hearing would attract the essence of S. 5 of Limitation Act, 1908
Substantial justice would not meet the ends of justice if applicant would be precluded from pursuing his appeal
Appeal was restored subject to payment of cost of Rs.5,000 in circumstances.
Judgment & Decree
HASAN FEROZ, J.
This C.M.A. bearing No.5219 of 2012 has been filed on behalf of the appellant for restoration of 1st Appeal, which was dismissed by this Court vide order dated 6-8-2012 in non-payment of Court fee and non-prosecution. The appeal of the appellant was dismissed on 6-8-2012 under Order XLI, Rule 17 due to non-payment of Court fee and non-appearance.
2. I have heard the learned counsel for the parties. It has been contended by the appellant that after filing of the appeal, he could not furnish the Court fee as he was suffering from sugar and high blood pressure and the contention of the learned counsel was that since Appeal has not been listed with its number. Learned counsel for the appellant has further contended that the valuable right of the appellant will frustrate if the appeal is not restored to its original position as the purpose of appeal is to impugn the judgment wherein leave to defend could not be fulfilled by him due to reason beyond his control and as such the present appeal if not restored, ends of justice will be defeated.
3. The learned counsel for the respondent has opposed this application on the ground that the same has been filed after the lapse of 30 days as required under Article 168 of Limitation Act and thus, inherent powers cannot be invoked. Further it has been contended that the appellant has failed to give each day's account of delay for attracting condonation of delay under section 5 of Limitation Act.
4. I have in my consideration the essence of Rule 19 C.P.C. read with section 5 of Limitation Act. It has been urged by appellant that he was prevented by a sufficient cause from appearing when the appeal was called for hearing and from depositing the Court fee. The appellant has paid Court fee on 17-10-2012 after dismissal of his appeal with an application for condonation of delay. The apparent conduct of the appellant with the deposit of court fee and so also his inability for appearing on the date fixed for hearing being taken together, attract the essence of section 5 of Limitation Act in as much as that if appellant would be precluded from pursuing of his appeal, substantial justice would not meet the ends of justice. Although the application for restoration of appeal has been filed after lapse of more than two months however, the inability expressed in shape of illness of appellant who is an aged person and that the contention of the learned counsel that the appeal was not listed with number, therefore, he could not pursue the same require consideration hence the appeal is restored subject to payment of cost of Rs.5,000 to be deposited with the Library of High Court Bar Association. C.M.A. stands disposed of. AG/M-57/Sindh Appeal restored.