1992 PLP 551 (CLC)

Naveed Saeed Khan for Appellant. Muhammad Sarwar Awan for Respondents. Date of hearing: 24th October, 1984. This appeal is directed against order dated 30‑6‑1972 passed by the learned District Judge, Sialkot, whereby the appellant's application for restoration of his appeal, dismissed in default, was rejected as being time -barred.

2. The appellant is a resident of Sankhatra, Tehsil Narowal, District Sialkot. In 1971 Indo‑Pak war, he left his village and took refuge in Sargodha District. He had filed an appeal in the Court of the District Judge, Sialkot, before he left for Sargodha. The above appeal was dismissed by the Court on 8‑12‑1971 as the appellant and his counsel had failed to appear in the Court. On 27‑6‑1972, the appellant submitted an application under Order XLI, rule 19 read with section 151 C.P.C. for restoration of his appeal on the ground that he could not appear on the date of hearing as he had left his village and had shifted to Sargodha District on account of Indo‑Pak war. According to the appellant, his counsel also could not appear in the Court on account of war conditions. Alongwith the application, the appellant also submitted an application under section 5 of the Limitation Act for condonation of delay. The learned District Judge refused to condone the delay and accordingly rejected the application .for restoration of appeal as being time‑barred.

3. This appeal was admitted to consider legal position arising out of a notification issued by the Government of Pakistan on Ist February, 1973, under section 2 (a) of the Limitation (Emergency and War Conditions) Act (No. XVIII of 1965) (hereinafter referred to as the Act), whereby Tehsils of Sialkot, Shakargarh and Narowal, in District Sialkot, were declared to be affected areas. According to section 3 of the Act, a person displaced from an affected area was allowed extension in the period of limitation and it was provided that notwithstanding anything contained in the Limitation Act, 1908, or any other law for the time being in force, a suit, appeal or application could be instituted, preferred or made before a Court or authority situated in the affected area within six months of such area ceasing to be an affected area. Learned counsel for the appellant has relied on the Notification issued under section 2 (a) of the Act and the provisions of section 3 of the Act and has argued that the appellant's application for restoration of his appeal could not be thrown out as being time‑barred because he was a person displaced from an affected area when the application for restoration of the appeal was made.

4. Learned counsel for the respondents, on the other hand, has contended that the war between India and Pakistan had come to an end before 27‑6‑1972 when the appellant had submitted the application for restoration of his appeal. Tehsil Narowal, in which the appellant's village is situated, had ceased to be an affected area after the war between the two countries had come to an end. According to learned counsel for the respondents, the appellant was not entitled to the extension of limitation provided for under section 3 of the Act.

5. According to the definition of "affected area", as given under section 2 (a) of the Act, the Federal Government is empowered to declare an area to be an affected area by notification in the official Gazette and such notification can also be issued so as to have retrospective effect. Village Sankhatra where the appellant resided admittedly did not fall within the affected area on 15‑6‑1972, as no notification under section 2 (a) of the Act had been issued by the Federal Government by that date, but on issuance of Notification No. SRO‑149 (1)/73 dated Ist February, 1973, the appellant's village fell within the affected area as Tehsil Narowal of District Sialkot was declared as an affected area by the said notification and continues to be so as the notification has not been cancelled. The appellant was a displaced person from the affected area in 1971 and since the notification issued under section 2 (a) of the Act on 1‑2‑1973 is to be given retrospective effect as provided under section 2 (a) of the Act, the appellant is entitled to the extension of limitation. The appeal is accordingly accepted and the order dated 30‑6‑1972 passed by the learned District Judge is set aside. The case is remanded to the learned.. District Judge for disposal of the appellant's application for restoration oaf appeal filed under Order XLI, rule 19 read with Section 151, C.P.C. on merits. As it is an old matter, it is hoped that the learned District Judge shall dispose‑ it of expeditiously. The parties have been directed to appear in his Court on 19‑11‑1984. Keeping in view the circumstances of the case, no order is made as to costs. AA./M‑3069/L Case remanded.