2020 PLP 384 (CLC)

Laws Cited

Representation

• 3. Learned Assistant A.G has mainly contended that after filing of the civil appeal in the year 2014, the applicant Alamzeb and his counsel had not taken much interest in pursuing the matter and had been avoiding to proceed with the matter which involved commercial and residential area of 9-36 acres of the State land of potential value situated in deh Sonwalhar [Jamshoro] Taluka Kotri District Jamshoro; that the learned advocate for the applicant had neither filed application for restoration of the appeal in time nor had the learned counsel for the appellant filed his own affidavit in support of the application under Order XLI, Rule 19, C.P.C.; that the application and affidavit filed in support thereof are vague in nature; and, that no explanation in view of the well settled law seeking condonation of 50 days delay in filing the application for restoration of the appeal has been offered by the applicant. He, therefore, prays for dismissal of the revision application.
• 4. I have considered the submissions of learned counsel for the applicant and learned Assistant Advocate General and have gone through the material brought on record.
• 5. From a perusal of the record, it would be seen that the applicant and his counsel after filing of the subject appeal did not take much interest in proceeding with the matter and despite sufficient latitude, the applicant did not proceed with the matter with the result that the appeal was dismissed for non-prosecution vide order dated 01-02-2017 when admittedly the applicant and his learned counsel were called not in attendance although lastly the matter was adjourned on the request of learned counsel for the applicant as a last and final chance; the application for restoration of the appeal was filed with delay of 50 days along with application under section 5 of Limitation Act seeking condonation of delay only on the ground of ailment of the applicant; no affidavit of the learned counsel was filed with the aforesaid applications; purported medical certificate filed along with the application is patently not only invalid, but from face of it, it appears to be manipulated one as no outward number and date of issuance thereof or any reference of the applicant's remaining under constant medical treatment are shown therein and except one prescription dated 21-01-2017 as outdoor patient advising one month bed rest to the applicant no other prescription and medical reports, such as, C.T scans, ultrasound, X-rays, blood and Urine reports etc., have been filed by the applicant; and, patently the applicant has not brought on record any material worth consideration to substantiate his alleged indisposition. Even if it is believed that the applicant was suffering from ailment his Advocate, whose adjournment application on the preceding date was allowed as last and final chance could appear before the Court or even the applicant could appoint any person as attorney to show his appearance on behalf of the applicant, which could satisfy the Court that the applicant was vigilant in pursuing his case with due care; the learned counsel for the applicant could himself also file application for restoration of the appeal with his own affidavit in time. The learned Appellate Court had already shown patience for three years and adjourned the case time and again during the said period, but despite availing sufficient opportunities which included cautions and last and final chance (s) the applicant failed to proceed with the matter, therefore, in my humble view, the learned Appellate Court was quite justified to pass the order for dismissal of the appeal for non-prosecution. The applicant has failed to establish his case for condoning such an inordinate delay of 50 days in filing the application for restoration of the appeal and the delay of each and every day has also not been accounted for. It needs no reiteration that law favours disposal of the cases on merits, but at the same time the other famous principle that the law helps the vigilant and not the indolent, cannot be ignored and the Court is not supposed to go behind the litigant, who is not interested in disposal of the matter on merits. In such view of the matter, the learned Appellate Court by dismissing the application under section 5 of Limitation Act and application for restoration of the appeal as time barred vide impugned order dated 11-10-2017, has not committed any illegality. Learned counsel for the applicant has also not been able to point out any illegality or jurisdictional defect in the impugned order, attracting the exercise of jurisdiction under the provisions of section 115, C.P.C. Accordingly, this revision application being devoid of merit is dismissed with no order as to costs.

Headnotes / Summary

Judgment & Decree