2002 PLP 804 (MLD)

Civil Miscellaneous Applications Nos. l ‑C and 2‑C of 2001. MIAN HAMID FAROOQ, J.‑‑‑Civil Miscellaneous Application No. I‑C of 2001, has been filed for the re‑admission of the appeal which was dismissed for non‑prosecution by this Court on 29‑2‑2000, whereas the other Application (C.M. No.2‑C of 2001) seeks condonation of delay in filing the former application, both were instituted on 31‑3‑2001:

2. It has been averred in the first application that the learned counsel of the applicant died on 24‑8‑2000, and this fact came in his knowledge just a week ago, thereafter on an inquiry made by him, he came to know that the appeal was dismissed for non‑prosecution and, thereupon, the applicant immediately after engaging the counsel filed these applications. The second application which is for the condonation of delay is almost on the same lines. The respondents have filed the replies, wherein it has been submitted that on a previous occasion also, the appeal was dismissed for non‑prosecution, however, it was subsequently re‑admitted and this is for the second time that the appeal has been dismissed for non‑prosecution, for the re‑admission of which a highly belated application has been filed. It has further been submitted in the reply that as a matter of fact the appeal has been renderer" infructuous; as during the interregnum period pursuant to the filing of an execution application, the learned Executing Court executed a sale‑deed in favour of the respondents and in consequence of the same possession has been taken from the applicant as far back as on 20‑6‑1996. The reply further states that the application (C.M. No.1‑C of 2001) is barred by time.

3. Learned counsel for the applicant while reiterating the 'stance taken in the application has submitted that on account of demise of the erstwhile counsel, the appeal was dismissed and as soon as the applicant came to know about its dismissal, he filed the application in hand contents of which, according to the learned counsel, constitute "sufficient cause" for the re‑admission of the appeal as well as for condonation of delay in not preferring the 1st application within the stipulated period. On the other hand the learned counsel for the respondents while reiterating the defence taken in the written reply has urged that the application is grossly barred by time, the conduct of tote applicant is negligent and that in view of certain happenings, mentioned in the reply, the appeal itself has become infructuous.

4. It would be appropriate, under the circumstances to re‑capitulate the background of the case, which commenced from 5‑10‑1993, when the appeal was admitted to regular hearing. However, the said appeal was dismissed for non‑prosecution on 25‑2‑1996, for the re‑admission of which an application (C.M. No.230‑C of 1996) was filed on 8‑5‑1996, by the applicant. The only reasons advanced for the re‑admission of the appeal, in the afore‑mentioned application, was that on account of non receipt of the cause list by the learned counsel at the appropriate time he could not attend this Court and, according to the applicant, when he came to know about the fixation of the case, although he rushed to the Court yet in the meantime the appeal was dismissed for non‑prosecution. This application was accepted by this Court on 12‑1‑1997 and the appeal was re‑admitted to its original number. Thereafter, the appeal was fixed before this Court on 29‑2‑2000 and as none appeared on behalf of the applicant, therefore, this Court having no alternative again dismissed the appeal for non‑prosecution, and for the re‑admission of the appeal the present time‑barred application has been filed after the lapse of more than a year. It flows from the above narrative that the conduct of the applicant in prosecuting the present appeal is not only negligent, but also contumacious. This Court on previous occasion mainly relying upon the affidavit furnished by the learned counsel re‑admitted the appeal, but even on the next date of hearing the same performance was repeated by the applicant in absenting himself from the proceedings. Even if it is believed, that the counsel died on 24‑8‑2000, there was sufficient time at the disposal of the applicant to institute the application for the re admission of the appeal, but he comprehensively failed to the file an application and choose to submit the same after the lapse of more than a year. Under the said set of circumstances the contention of the learned counsel for the respondents has a considerable force that from the very beginning the conduct of the applicant was contumacious.

5. Another factor which cannot be ignored is that the application, as noted above, was filed on 31‑3‑2001, for the re‑admission of the appeal, which was dismissed on 29‑2‑2000, i.e. after the lapse of more than a year, as such the same is grossly barred by time. Although an application seeking condonation of delay has been filed yet we are of the considered view that there are no sufficient grounds warranting the condonation of delay within the parameters of law. There is no cavil to the proposition that under section 5 of the Limitation Act, the party in order to justify the condonation of delay has to explain each day's delay. If any judgment is needed Abdul Aziz v. Abdul Sattar (1979 SCMR 46) can be referred. It is evident from the reply to the application, filed by the respondents, which is supported by an affidavit that when the appeal was dismissed for the first time, on an execution petition filed by the respondents not only a sale‑deed was executed in favour of the respondents by the learned Executing Court, but also physical possession was delivered to them and they are still in possession of the same.

6. In view of this we are of the view that even otherwise the appeal has been rendered infructuous on account of afore‑noted circumstances and as such even if the appeal is re‑admitted no useful purpose would be achieved. For the foregoing reasons and conclusions we are constrained to dismiss both the applications being devoid of merits. (Sd.) (MIAN HAMID FAROOQ, J.) MAULVI ANWARUL HAQ, J.‑‑‑I have gone through the order passed by my learned brother. I am in agreement with ultimate conclusion drawn in the order. I would, however, add that in the application (C.M. No.1 of 2001) the ground raised is that the learned counsel representing the applicant, unfortunately died on 24‑8‑2000. However, I find that the applicants were represented by Mr. Sami Ullah Khan and Mr. Muhammad Akram III, Advocates as per power of attorney filed in this Court on 21‑9‑1993. I also find that earlier when the appeal was dismissed for non‑prosecution C.M. No.30‑C of 1996 was filed by both the learned counsel and in fact it was Mr. Muhammad Akram‑III, Advocate, who appeared on 12‑1‑1997 and acted in the matter when the said C.M. was allowed. In the application there is no explanation as to why Mr. Sarni Ullah Khan, Advocate or Mr. Muhammad Akram‑III did not appear on 29‑2‑2000 when Regular First Appeal was called out for hearing and was dismissed for non‑prosecution. The applicant, therefore, fails to make out any cause for re‑admission of F.R.A. and is accordingly dismissed. H.B.T./M‑1058/L Appeal dismissed.