P L D 1997 Karachi 499 (PLP)

This revision application calls in question an order passed by IInd Additional District Judge, Larkana in Civil Appeal No.35 of 1988 filed by the applicant and vide impugned order dated 6-10-1990, the order passed by the trial Court dated 15-10-1986 dismissing the suit under Order XVII, Rule 2 was maintained. The learned trial Court dismissed the suit on 15-10-1986 under Order XVII, Rule

2. The applicant filed an application for restoration of case on 20-5-1987 alongwith an application under section 5 of the Limitation Act for condonation of delay. The applicant in his application under Order IX, Rule 9 stated that he was not keeping well and had gone to Hyderabad for his treatment. On enquiry from the Court, the learned counsel appearing for applicant stated that he was an out-door patient which inter alia would mean that the sickness of the applicant was not such serious which may prevent him from attending the Court on the date of hearing. From the record, it is established that he had taken away file from his Advocate as well. The medical certificate produced by the applicant in support of his case only specifies abdominal disorder but the causes of such disorder are not mentioned in the certificate. Even the certificate is not signed by the applicant, therefore, it is not ascertainable that the said certificate was issued to the applicant and in relation to the disease mentioned in the certificate itself. Learned trial Court refused application under section 5 of the Limitation Act and dismissed his application under Order IX, Rule 9, C. P. C. The appellate Court in view of the judgment reported as K.S. Abdul Latif v. Republic of Pakistan PLD 1971 Quetta 77 has held that if the suit is dismissed under Order XVII, Rule 2 residuary Article 181 of the Limitation Act would 'be applicable and the limitation for filing such application is three years. However, on merits the Court came to the conclusion that no cogent reasons have 'been assigned for restoring the suit. While -opposing the revision application under section 5 of the Limitation Act and application under Order IX, Rule 9, defendant No.5 Yar Muhammad in paragraph No.3 of his counter-affidavit stated that the plaintiff/applicant was quite well on 15-10-1986 and was at Shahdadkot and not in .Hyderabad. In his affidavit, he also disputed that the plaintiff/applicant has taken any treatment from Dr. Aftab Hussain. He also disputed the correctness of the medical ,certificate and according to him, it was a managed document. In paragraph - No.4, he has stated that the plaintiff/applicant has deliberately, knowingly and intentionally avoided to appear on the date of hearing. The learned counsel appearing for respondent No.5, therefore, contended that the orders passed by the trial Court and maintained by the first appellate Court do not call for any exception. Mr. Mughal learned counsel appearing for official respondents has stated that there is delay in filing application of restoration and the certificate produced does not inspire confidence. He has also opposed this revision application. I have given anxious consideration to the pleas urged by the parties for this revision application. The First Appellate Court ordinarily after holding that the limitation is not involved, should have remanded the matter to rite trial Court as the trial Court refused the restoration by dismissing restoration application and did not express any opinion on the merits of tile application under Order IX, Rule 9, C.P.C. and dismissed this application as application under section 5 o the Limitation Act was refused. However, this does Clot preclude the firs appellate Court to pass orders on merits of the case, which should be in ran circumstances. On merits, on the basis of record, the learned First Appellant Court came to the conclusion that no justification has been shown for restoration of the case to its original position. I find from the record that the applicant/plaintiff did not file any affidavit in rejoinder to controvert the allegations of defendant/respondent No.5 in which specific stand has been taker that the applicant had not gone to Hyderabad and he was present in Shahdadkot. He had not suffered from the alleged ailment nor such ailment is of such nature which may prevent the applicant to attend the Court. Even otherwise, the certificate produced does not bear the signature of applicant. In such eventuality, the validity of the certificate, becomes doubtful and does not inspire confidence, therefore, could not be the basis of granting application under Order IX, Rule 9, C. P. C. I find that the order of the first appellate Court does not call for any exception. This revision application is, therefore, dismissed with no order as to costs. A.A./M-175/K Revision dismissed.