1986 PLP 1354 (MLD)

1983 C L C 2072 ref.& fol. Farooq H. Naik for Appellant. Amanullah Khan for Respondent. This appeal was dismissed for non‑prosecution on 31‑10‑1983. Application under Order XLI, R. 19, C.P.C. (C.M.A. No. 1635/85) for restoration of appeal was filed by Mr. Farooq H. Naik Advocate on 5‑9‑1984. Along with application under section 5 of the limitation Act (C.M.A. No. 1634/84) for condonation of delay also was filed. The applications have been opposed on behalf of the respondent: The grounds for condonation of delay in making the application for restoration of appeal stated in the affidavits filed by Mr. Farooq H. Naik, Advocate himself and reiterated by him today, while arguing the applications, briefly stated are that the appeal was filed by Mr. S.H. Rizvi, Advocate while he himself filed power on 18‑10‑1983. He was arrested on 19‑10‑1983 and was detained in Central Prison, Karachi till 22‑1‑1984. He visited the Rent Cases Branch on 30‑8‑1984 to ascertain when the appeal was expected to be enlisted for regular hearing and he learnt that it had been dismissed for non‑prosecution on 31‑10‑1983. He then checked up the cause list for 31‑‑10‑1983 and observed that his name was not mentioned therein as the Advocate for the appellant. It has been finally urged that there was no wilful or intentional default in appearance on 31‑10‑1983. He has placed reliance on a case reported in 1983 C L C 2072. The learned counsel for the respondent has opposed the application contending that the appellants previous Advocate Mr. S.H. Rizvi had not withdrawn from the case as no such application or statement was made by him and his name was published in the cause list and the name of 'Mr. Farooq H. Naik did not find mention in the cause list as he had filed Vakalatnama few days before the date of hearing. He has further contended that the matter was coming up in Court for regular hearing and even if the matter could not be attended to because of the arrest and detention of Mr. Farooq H. Naik, he would have ascertained what had been the fate of the matters he was engaged for or he would have maintained contact with the party concerned soon after he was released on 22‑1‑1984, but he adopted that course only on 30‑8‑1984 i.e. after more than seven months. According to him, the application is time barred and there is no reasonable explanation for non‑appearance on the date of hearing when the appeal was dismissed. The undisputed facts are that appeal was filed by Mr. S.H. Rizvi, Advocate on 4‑8‑1977. It was admitted on 25‑9‑1977. It was enlisted for regular hearing on 15‑3‑1982, 5‑4‑1982, 9‑8‑1982'; 25‑10‑1982, 10‑1‑1983, 31‑1‑1983, 21‑2‑1983, 14‑3‑1983, 4‑4‑1983,. 10‑10‑1983 and lastly on 31‑10‑1983. On all the aforesaid dates of hearing except the last one, either Mr. S.H. Rizvi had appeared for the appellant or he had sought adjournments or he had endorsed his consent on adjournment applications made by the Advocate for the respondent. There is nothing on the record nor has Mr. Farooq H. Naik made pointation of any fact on the record to indicate that Mr. S. H. Rizvi, Advocate had withdrawn from the case. His name did appear in the cause list for 31‑10‑1983. There was no appearance on that day. Of course, there is Vakalatnam of Mr. Farooq H. Naik on the record. It was filed on 18‑10‑1983. However, his name was not mentioned in the, clause list for that day, a photostat copy whereof has been filed. It is not doubted that Mr. Farooq H. Naik was under detention from 19‑10‑1983 to 22‑1‑1984. These circumstances tend to furnish explanation for non‑appearance on 30‑10‑1983. But Mr. Farooq H. Naik was released on 22‑1‑1984, where the restoration application was filed on 5‑9‑1984. The application could have been filed within 30 days of the dismissal of appeal as per Article 168 of the Limitation Act. The explanation for justifying delay that the Advocate waited for enlistment of the case for regular hearing for period of more than seven months is not satisfactory. The delay in filing the restoration, application is incondonable. The case relied upon by the learned counsel, viz. 1983 C L C 2072 stand against hi contention. Accordingly, the application under section 5 of the Limitation Act (C.M.A. 1634/84) is dismissed, and consequently, the application of under Order XLI, R. 19, C.P.C. (C.M.A. 1635/85) also is dismissed as time barred. No order is made for costs. A.A. Application dismissed