1988 PLP 258 (MLD)

Muhammad Ozair Chughtai for Petitioners. Manzoor Ahmad for Respondent. Date of hearing: 4th May, 1988. The facts leading to this Civil Revision, briefly, are that on 25-6-1985 Malik Muhammad Naeem filed a suit for possession by pre-emption against Saif Ullah Khan and Fazal-ur-Rehman petitioners. The suit was dismissed by the learned Senior Civil Judge, Bahawalpur on 5-1-1987. Feeling aggrieved of this judgment and decree, Malik Muhammad Naeem respondent filed appeal which was entrusted to learned Additional District Judge, Bahawalpur. The appeal was dismissed in default on 19-3-1987. On 24-9-1987, the respondent filed application under Order XLI, rule 19, C.P.C. for the restoration of the appeal. Alongwith this application he filed application under section 5 of the Limitation Act for the condonation of delay to tiling application for restoration of the appeal. The learned Additional. District Judge allowed application for the condonation of delay and restored the appeal or 4-1(1-198'7, hence this revision.

2. Learned counsel for the petitioners mainly contended that the application for restoration of the appeal dismissed in default was filed after six months of the order of the dismissal and as such was hopelessly barred by time and that section 5 of the Limitation Act was not applicable to petition for restoration of the appeal dismissed in default. Reliance has been placed on cases reported as P L D 1967 Lah. 151; P L D 1962 Quetta 82; P L D 1980 S.C. 49; P L D 1975 S.C.

258. Learned counsel for the respondent has not been able to controvert the contention of the learned counsel for the petitioners. He stated that since the appeal was not fixed for hearing on 19-3-1987, therefore the same could not have been dismissed and as such has rightly been restored.

3. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the petitioners. It is by now well settled that Section 5 of the Limitation Act, which authorises the Courts to condone the delay in filing suits, appeals, etc. is not applicable to applications for the restoration of appeal dismissed for non-prosecution or in default. Since the arguments were to be heard on the application of the petitioners, therefore, it cannot be said that 19-3-1987 was not a date of hearing. The application for the restoration of the appeal shows that the petitioners had come to know about the dismissal of appeal m default on 19-3 1987 and as such there was no justification at all to file application for the restoration after six months thereof. For all these reasons I am of the view that the condonation of delay in filing application for the restoration of anneal dismissed in default was without jurisdiction and authority. For what has been said above, the revision is allowed and the order of the learned Additional District Judge dated 4-10-1987, whereby the appeal was restored, is set aside, leaving the parties to bear their own costs. A-A/S-271/L Revision accepted.