P L D 1967 Lahore 1098 (PLP)

MUHAMMAD GUL, J.‑Letters Patent Appeal No. 171‑65 (Iqbal Ahmad v. Mst. Sharifan and others) filed by the applicant was admitted for hearing by a Bench consisting of the learned Chief Justice and Karam Elahi Chohan, J. on the 3rd December 1965. The appeal, however, was dismissed for "non‑prosecution" on the 9th December 1966 because the appellant had failed to pay the process‑fee, for the issuance of notices to the respondents, within seven days, of the admission of the appeal as required by rule 2 of Chapter 1‑F, High Court Rules and Orders, Volume V and also failed to appear either personally or through his counsel on 9‑12‑66, when the appeal was listed for hearing in Motion before us.

2. This has obliged the appellant‑applicant to make this application for setting aside the order of ‑dismissal. But this application was not made till the 11th February 1967, that is to say after the lapse of 64 days from the date of the order of dismissal, although the period prescribed for such application vide Article 168 of the First Schedule to the Limitation Act, 1908 is 30 days from the date of dismissal. To circumvent the bar of limitation, the appellant‑applicant also moved an application under section 5 of the Act for condonation of delay on the ground that he had no notice of the hearing of his appeal on the 9th December 1966, nor had any knowledge of the dismissal of the same on that date. He averred that he came to know of the dismissal of his appeal from the office of the Deputy Settlement Commissioner, Sheikhupura on the 7th February 1967, and applied for the restoration of the appeal within two days of his knowledge. Precisely the same grounds are urged for the restoration of the appeal itself.

3. It was recently held in Khushi Muhammad v. Shaha (P L D 1967 Lah. 151) a case cited by the applicant's learned counsel though for a different purpose‑that the provisions of section 5 of the Limitation Act do not apply to an application for restoration of an appeal dismissed under Order XLI, rule 17 or 18, Civil Procedure Code. This view followed an earlier decision of Lahore High Court in Hayat v. Mutadlli (A I R 1938 Lah. 35): The section in terms applies to appeals, application for review or leave to appeal and to such other applications to which it may be made applicable by any enactment or rule for the time being in force. No rule has been framed under section 122 of the Code to make section 5 of the Act applicable, to an application for restoration of an appeal dismissed for non‑prosecution. Learned counsel did not challenge the correctness of the above proposition. Therefore, the application under section 5 is altogether misconceived and the main application must fail on account of limitation.

4. Learned counsel, however, based himself upon the provisions of rule 5 of the Chapter 1‑F of the High Court Rules and Orders, Volume V, which, according to him, required a formal notice of the hearing of the appeal to issue to the applicant appellant and his counsel which not being issued made the order dismissing the appeal void ab initio having no existence in the eye of law. In support of his argument, learned counsel strongly relied upon Khushi Muhammad's case, which indeed supports his contention. The question, however, is whether the decision in that case proceeds upon a proper construction of rule 5?

5. In the precedent case, a regular second appeal was admitted for hearing but on the appellant's failure to pay the process‑fee within seven days from the date of the order admitting the appeal as required by rule 2 ibid. the appeal was listed in motion for the 7tb April 1960, for disposal in accordance with Order XLI, rule 18, for which the appellant was sent a registered letter asknowledgement due. On the 7th April 1960, however, neither the appellant nor his counsel appeared and the appeal was dismissed for non‑prosecution. Relying upon the provisions of rule 5 of Chapter 1‑F of the High Court Rules and Orders, Volume V, a Single Bench of this Court held that a notice ought to have issued to the appellant's counsel besides the registered letter to the appellant, and since no notice was issued or served on the appellants' counsel the order dismissing the appeal for non‑prosecution was held corum non judice which did not require say legal proceedings for setting it aside. In reaching that conclusion the learned Judge also relied upon the Supreme Court's Judgment in Muhammad Swaleh v. United Grain and Fodder Agencies (P L D 1964 S C 97). Accordingly it was strenuously urged by learned counsel for the appellant‑applicant in this case that failure to issue any notice to the appellant and his counsel as contemplated by rule 5 of Chapter 1‑F. High Court Rules and Orders, Volume V, made the order of the 9th December corum non judice, which being non‑existent in the eye of law is not subject to any law of limitation.

6. Rule of Chapter 1‑F of the High Court Rules and Orders, Volume V, reads‑ "In the event of process‑fee not being paid and no application as provided in rules (3) and (4) being made, the case will be listed for a date soon after the original date of hearing before a Single Judge or a Division Bench, as the case may be, for disposal according to Order IX, rule 2, or Order XLI, rule 18, Civil Procedure Code, or otherwise, as the Court may order. Previous notice of the date so fixed will be given to the appellant or petitioner by listing the cause as a Motion Cause and where the appellant or petitioner in the case is not represented by counsel, by registered card also." In the instant case, it is not disputed that appellant‑applicant never paid the process‑fee nor made any application under rules 3 and 4, and, therefore, a foundation was laid for the disposal of the appeal under Order XLI, rule 18, Civil Procedure Code. This rule provides for the dismissal of appeal where notice to the respondent is not served in consequence of the appellants' failure to deposit the process‑fee. However, being any such order is made, rule 5 set out above provides for previous notice to the defaulting appellant and also prescribes the manner of such notice, namely‑ " . . . . by listing the cause as a Motion Cause and where the appellant . . . is not represented by counsel, by registered post card also." In the instant case the appellant‑applicant was represented by Mian Muhammad Shafi, Advocate and, therefore, require ment of registered post card to the appellant‑applicant became unnecessary. All that was required was to list the appeal as "Motion Cause" and to notify it previous to the date of hearing. That is to say if the appeal is listed as Motion Cause, that per se would be sufficient notice to the appellant and his counsel, subject to the rider that if the appellant is not represented by the counsel then a notice shall be sent to him by registered post card also. The word "also" at the end of the rule, is the key word which furnishes a clue to true meaning of the relevant provision of the rule. In our opinion, the only possible interpretation o the rule is that the listing of the relevant appeal as a Motion Cause would be a sufficient notice, except that where an appellant, is not represented by counsel, then in addition to the notice by listing the cause as Motion Cause, the former will be notified of the date of hearing by a registered post card also. In other words, the word "also" at the end of the rule signifies a dual notice to an appellant not represented by counsel firstly by listing the appeal as a Motion Cause and secondly by issuing a registered post card to him. Unless the above interpretation of rule 5 is accepted, the word "also" becomes redundant and unmeaning. And the practical necessity of such dual notice in the case of an un-represented appellant is understandable, for in the ordinary course of events, merely to include the list of Motion Causes, which he had no occasion to see, would not be a sufficient notice to him. Hence the provision for a registered post card. On the other hand, the listing of the appeal as a Motion Cause will be a sufficient notice to counsel whose ordinary business is in Court and who is supposed to read list of causes put up on the Court's notice board. Conversely, the interpretation convassed by the learned counsel if accepted would lead to some extraordinary results, namely, that an un-represented appellant who neglected to pay the process‑fee for notice to the respondent shall in addition to a formal personal notice of proceedings under Order XLI, rule 18, Civil Procedure Code, will also be entitled to a notice by means of a registered post card. Such over indulgent treatment to an appellant who has been neglectful does not stand to reason. It would also be out of tune with the tenor of the preceding rules which are so exacting. For instance, rule 2 provides for payment of process‑fee "within a period not exceeding seven days from the date of order admitting an appeal . . . . . (or if the office of the Court is closed on seventh day . . on the next day the office is open" Rule 3 provides for refusal by the office to accept the process‑fee, "unless accompanied by on applica tion duly stamped with Rs. 2 Court‑fee . . . and giving reasons for tendering process‑fee late." Rule 4vests the Deputy Registrar only with a limited discretion to accept the process‑fee tendered late.

7. For the foregoing reasons, we are therefore clearly or the opinion that for the purpose of rule 5 set out above previous listing of an appeal or another cause an a Motion Cause, per se would be sufficient notice to an appellant or a petitioner as the case may be if he is represented by counsel and, therefore, regret to take a different view from the view taken in Khushi Muhammad's case.

8. The Supreme Court's ‑judgment, referred to in the precedent case, and also relied upon by the applicant's learned counsel, proceeded on its own facts and, therefore, the dictum of their Lordships in that case would not be attracted to the instant case. In that case, a suit with the consent of the parties' counsel was adjourned for evidence to the 21st April 1960, which was subsequently declared a closed holiday. The suit was taken up on the following day, namely, the 22nd April 1960, when the plaintiff's counsel alone was present, the defendants and their counsel remaining absent. The Court, thereupon, ordered ex parte proceedings against the defendant and adjourned the case to the 27th April 1960, for ex parte evidence on which date suit was decreed ex parte. The defen dants, therefore, applied on the 29th July 1960, for setting aside the ex parte decree and the order dated the 22nd April 1960, directing ex parte proceedings against them. The application was refused on the ground that the defendants and their counsel were under a duty to appear on 22nd April 1960, when the suit was taken up for hearing when the Court re‑opened having remained closed on the preceding day which in the meantime was declared a closed holiday. It was in these circumstances that their Lordships of the Supreme Court held that the order of the trial Judge passed on the 22nd April 1960 for ex parte proceedings was void order, being without jurisdiction and, therefore, a nullity; having no existence in the eye of law. In the instant case, as we have pointed out already, the question turns on the proper interpretation of rule 5 which as pointed out already envisages a notice to the appellant or the petitioner and his counsel, as the case may be, but also prescribed the manner in which the notice is to be served. Thus the dictum of their Lordships of the Supreme Court is not attracted to the instant case.

9. As to merits of the case, it is not controverted that the appellant‑applicant was represented by Mian Muhammad Shafi, Advocate, since the filing of the Letters Patent Appeal. It is not controverted either that the appeal was listed as a Motion Cause is the supplementary list of causes for the 9th December 1966, before the Third Bench and beneath the number and the title of the L. P. A.I the appellants' counsel's name also appeared. This supple mentary list was issued on the 8th December and its copy was also sent to the High Court's Bar Association. These facts are not controverted. All that learned counsel could submit as a matter of personal explanation was, that somehow he and his Clerk missed to notice the appeal in the supplementary list. That, in our opinion, is scarcely a sufficient cause for the restoration of appeal, apart from fact that the application for its restoration is barred by limitation.

10. On above view of the matter, we dismiss this application in limine. K. B. A. Petition dismissed.