2012 PLP 1625 (MLD)

MUNIR AHMED CHAUDHARY, J.

This appeal has been directed against the judgment and order of District Judge Mirpur dated 20-6-2009, through which an order passed by Civil Judge Mirpur dated 30-10-2008 was set aside and the case was remanded to Civil Judge Mirpur to proceed in accordance with law.

2. Brief facts of the case are that respondent Nighat Farooq filed a suit against the present appellant in the court of the learned Civil Judge Mirpur, which was dismissed for non-prosecution on 13-11-2007. Respondent filed an application to restore the said suit in the court of the learned Civil Judge Mirpur on 1-1-2008. After hearing the parties, the learned Civil Judge Mirpur dismissed the said restoration application, declaring that the application was filed beyond the period of limitation. Feeling aggrieved, the present respondent preferred a revision petition before the learned District Judge Mirpur. The learned District Judge Mirpur accepted the revision petition after hearing the parties and remanded the case to the learned Civil Judge with a direction to dispose of the said restoration application in accordance with the provisions of law after framing the necessary issues. Hence, this appeal.

3. Arguments were advanced. Ch. Muhammad Suleman, the learned counsel for the appellant argued that the restoration application was dismissed because that was filed beyond the period of limitation. It has been admitted by the respondent that they had knowledge of dismissal of suit on 13-11-2007 but the restoration application was filed beyond the period of limitation, which need no further proof. So, there was no need to frame issues. The judgment passed by the learned District Judge Mirpur is not in accordance with the facts and provisions of law. The learned counsel requested to set aside the order passed by the learned District Judge Mirpur dated 20-6-2009.

4. While controverting, Raja Khalid Mehmood Khan, the learned counsel for the respondent contended that the learned District Judge Mirpur has recorded his findings based on just and legal reasons. No opportunity was given to the parties to place the evidence on their part and framing of issues was necessary in the present case. The learned counsel requested to dismiss the instant appeal.

5. After hearing the arguments, I have gone through the record available and the relevant law minutely. It is an admitted fact that the suit filed by the present respondent was dismissed for non-prosecution on 13-11-2007. The application to restore the same was filed on 1-1-2008 after forty nine (49) days of dismissal of the said suit. It was a requirement of law to file the said application to restore the suit within thirty (30) days from the date of dismissal of the suit. It was admitted by the respondent in the contents of the restoration application that they had knowledge of dismissal of the suit on 13-11-2007. The respondent neither mentioned the reasons of delay in the restoration application nor they submitted any application to condone the delay. Applicant has to prove everyday of delay through reliable reasoning. This principle has been laid down in a precedent 2004 YLR 2311. The nutshell of the above discussion is that the application to restore the suit was filed beyond the period of limitation and the respondent failed to prove the causes of said delay. The said delay was apparent and it needed no more proof or framing of issues. So, the judgment and order passed by the learned District Judge Mirpur dated 20-6-2009 is not sustainable, which is hereby set aside by accepting the instant appeal. No order as to costs. HBT/32/H.C. (AJ&K) Appeal accepted.