2020 PLP 1765 (MLD)

ALI BAIG, J.

This civil revision petition under section 115 read with section 151, C.P.C. has been filed by the present petitioners / plaintiffs against the impugned judgment/order dated 16-10-2015, passed by the learned District Judge Astore, whereby, the learned 1st appellate court has dismissed the Civil First Appeal of the present petitioners/plaintiffs for non-depositing of publication fee and also against the judgment/order dated 16-12-2016, passed by the learned District Judge Astore, whereby, the learned 1st appellate court has also dismissed the petition of petitioners/plaintiffs filed under Order XLI, Rule 19 read with section 151, C.P.C. for readmission of Civil First Appeal.

2. Briefly facts giving rise to the filing of the instant civil revision petition are that the present petitioners/plaintiffs (hereinafter called as petitioners) had instituted a suit in the trial court for declaration and perpetual injunction against the present respondents/defendants (hereinafter called as respondents) in respect of certain lands situated at mouza Bunji. The learned trial court, after conducting full trial, had partially dismissed the suit of petitioners vide judgment/decree dated 27-03-2014. The petitioners had challenged the aforesaid judgment/ decree of the learned trial court in the court of learned District Judge Astore through a Civil First Appeal which was dismissed by the learned First Appellate Court on 16-10-2015 holding that the appellants were directed time and again for depositing fee of publication of notice, but the petitioners were failed to deposit the same; hence, appeal was dismissed vide order dated 16-10-2015.

3. Feeling aggrieved by the aforesaid judgment/order of the learned First Appellate Court, the petitioners had filed an application under Order XLI, Rule 19, C.P.C. for re-admission of the appeal in the same court, which was also dismissed by the learned 1st appellate court vide the impugned judgment/order dated 16-12-2016, holding that the aforesaid application is barred by time, hence this civil revision petition.

4. The learned counsel for the petitioners have contended that no specific directions were issued by the learned 1st appellate court to the petitioners to deposit the publication fee. The learned counsel for the petitioners have further contended that notice through Registered AD was served on the respondents as evident from order sheet dated 16-06-2015 maintained by the learned First Appellate Court. The learned counsel for the petitioners has further contended that the application under Order XLI, Rule 19, C.P.C. filed by the petitioners was dismissed by the learned 1st appellate court mainly on the ground that the petition was time barred under Article 168 of the Limitation Act 1908, whereas, the date on which the main appeal of the petitioners was dismissed, i.e., 18-10-2015, was fixed by the Reader of the learned 1st appellate court which was not date of hearing, then the Article 181 of the Limitation Act applies to the case of petitioners which provides three years for filing of appeal/ application; hence, application under Order XLI, Rule 19, C.P.C. was well within time and the learned 1st Appellate Court has wrongly dismissed the same; therefore, the impugned judgment/order passed by the learned 1st appellate court is not maintainable and liable to be set aside and the case may be remanded back to the learned 1st appellate court to decide the same on merits.

5. On the other hand, the learned Additional Advocate General and the associated counsel have opposed this revision petition by contending that the petitioners had failed to deposit fee for publication of notice to be issued to remaining absent respondents despite clear direction of the learned 1st appellate court, therefore, the learned 1st appellate court has rightly dismissed appeal of petitioners vide impugned judgment/ order dated 16-10-2015. The learned Additional Advocate General and the associated counsel have further contended that the application filed by the petitioners under Order XLI, Rule 19, C.P.C. for readmission of the appeal was hopelessly time barred as it was filed after three months and twenty two days of dismissal of the appeal, whereas, limitation for re-admission of the appeal is governed by Article 168 of the Limitation Act and the limitation for readmission of appeal falls under Article 168 of the Limitation Act, 1908 which stipulates the period of 30 days; thus, the learned 1st appellate court has rightly dismissed the aforesaid application of the petitioners.

6. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the record with their able assistance.

7. From perusal of record and particularly the order sheets maintained by the learned District Judge Astore, it reveals that no specific directions were issued to the petitioners for depositing of fee for publication of notice to be issued to absent respondents Nos.1, 2, 3 and

8. Moreover, it is evident from the order sheet of the learned 1st appellate court dated 16-06-2015 that notice issued to respondents through Registered AD was returned after service. Therefore, question for depositing of fee for publication of notice to be issued to absent respondents does not arise; hence, the learned 1st appellate court has wrongly inferred/held that the petitioners have failed to deposit publication fee.

8. As far as the impugned order, dated 16-12-2016, passed by the learned 1st appellate court, whereby, the learned 1st appellate court has dismissed the application of the petitioners filed under Order XLI, Rule 19, C.P.C, is concerned, the learned 1st appellate court has dismissed the said application mainly on the ground that the petition has been filed after lapse of unexplained delay of three months and twenty two days of the dismissal of the appeal and the petitioners have not bothered to file an application under Section 5 of the Limitation Act, 1908 for condonation of delay.

9. From perusal of order sheet dated 30-09-2015, it appears that on the said date, the learned Presiding Officer of 1st appellate court was on leave and the Reader of the District Court Astore had adjourned the appeal of petitioners by fixing next date, i.e., 16-10-2015 and on the same date, the learned District Judge Astore has dismissed the appeal of petitioners which was not date of hearing, as the date fixed/given by the Reader of the court is not date of hearing as held by the Hon'ble superior courts. The appropriate Article is 181 of the Limitation Act which provides a period of three years for filing of appeal or petition and not Article 168 of the Limitation Act thereof. In view of the matter, the petitioners' application could not have been treated as time barred. In this connection, reference is made to the reported judgments of the Hon'ble Supreme Court of Pakistan, 1981 SCMR 218, 1983 SCMR 1092 and 1968 MLD 844, wherein, the Hon'ble superior courts have held that date given by a Reader of a court and not a Presiding Officer is not date of hearing; thus, the petition filed by the petitioners under Order XLI, Rule 19, C.P.C. was well within time.

10. For what has been discussed above, this revision petition is allowed and the impugned orders passed by the learned District Judge Astore are hereby set aside and the petition filed under Order XLI, Rule 19, C.P.C. by the petitioners for readmission of appeal is accepted and the appeal of the petitioners is remanded back to the learned 1st appellate court with the direction to decide the Civil First Appeal of the petitioners on merits after hearing the parties. However, there would be no order as to costs. File. ZC/36/GB Case remanded.