2023 PLP 860 (MLD)

CH. MUHAMMAD IQBAL, J.

Through this civil revision, the petitioner has called in question the order dated 02.03.2019 passed the learned Civil Judge, Lahore whereby application under section 151, C.P.C. for recalling the order dated 16.12.2017 regarding dismissal of petition under section 14(2) of the Arbitration Act 1940 and application for recalling the order dated 04.01.2018 qua dismissal of objection petition for non-prosecution under sections 8 and 20 of the Arbitration Act, 1940 (in the shape of suit) filed by the petitioner were dismissed.

2. Brief facts of the case are that the petitioner filed a petition under sections 8 and 20 of the Arbitration Act 1940 for making the award dated 08.01.2011 as rule of court. Petitioner filed an objection petition on the award which was opposed by the respondents. During the pendency of the case petitioner filed an application under section 14(2) of the Act ibid. The said application was dismissed for non-prosecution on 16.12.2017 whereas the main petition (suit) was also dismissed for non-prosecution on 04.01.2018. Petitioner filed an application on 06.03.2018 for restoration of the main petition and recalling the orders dated 16.12.2017 and 04.01.2018. The said application was dismissed by the learned Civil Judge, Lahore vide order dated 02.03.2019 being barred by limitation. Hence, this civil revision.

3. I have heard the arguments advanced by the learned counsel for the parties at full length and gone through the record with their able assistance.

4. Admittedly petitioner's objection petition under sections 30 and 33 of the Arbitration Act was dismissed for non-prosecution on 16.12.2017 and the case was fixed for attendance and evidence of the petitioner for 04.01.2018. On 04.01.2018 none appeared on behalf of the petitioner and the learned trial court dismissed the main petition (suit) on 04.01.2018 for non-prosecution. Petitioner filed an application on 06.03.2018 for restoration of the main petition and recalling of orders dated 16.12.2017 and 04.01.2018 after lapse of 02 months and 21 days (80-days) whereas under Article 163 of the Limitation Act, 1908 the prescribed limitation is 30 days from the date of dismissal of the suit/application. Thus the application for restoration was hopelessly time barred. The Hon'ble Supreme Court of Pakistan in a case titled as Mian Muhammad Asif v. Fahad and another (2009 SCMR 1030) has held that if the suit was dismissed for non-prosecution or it was being dismissed under Order IX, Rule 3, C.P.C., the Article 181 of the Limitation Act, 1908 would not attracted as such provision of Article 163 of the Limitation Act, 1908 is applicable upon this case. For ready reference, first part of Para-5 of judgment supra is reproduced as under:- "

5. We have given our anxious consideration to the entire facts and circumstances of the case. Plain reading of Order XVII, rule 2, C.P.C. shows that in such a situation the Court has an option to proceed under Order IX of C.P.C. and in the instant case, although it is not written in the order dated 13.12.2006, whereby the suit was dismissed for non-prosecution, that it was being dismissed under Order IX, rule 3, C.P.C. but it is apparent that the Honourable trial Judge proceeded under Order IX, rule 3, C.P.C., therefore, Article 181 of the Limitation Act was not attracted and the Courts below correctly applied Article 163 of the Limitation Act while considering the appellant's application for condonation of delay in moving the application for restoration of the suit, which was grossly barred by limitation....." In this case petitioner has neither filed any application for condonation of delay nor any convincing reason has been expounded for delayed filing of the application for restoration whereas it is imperative for a party to explain the delay of each and every day. Reliance is placed on the case titled as Mst. Ghulam Sakina and 6 others v. Karim Bakhsh and 7 others (PLD 1970 Lahore 412) and Sabzal and others v. Bingo and others (PLD 1989 Karachi 1) [D.B.].

5. Learned counsel for the petitioner has not pointed out any illegality or material irregularity in the impugned order passed by the learned trial Court and has also not identified any jurisdictional defect.

6. In the wake of above said discussion, this civil revision is dismissed being devoid of any merit with no order as to costs. SA/I-9/L Petition dismissed.