1992 PLP 2123 (CLC)

(b) Civil Procedure Code (V of 1908)‑‑ ‑‑‑‑ OXLVII, R. 1 ‑‑‑ Limitation Act (IX of 1908), S. 5 ‑‑‑ Review of judgment‑‑ Condonation of delay ‑‑‑ Applicant had contended that when his appeal was dismissed neither he was present in Court nor his counsel who had entered appearance, had informed him of fate of his appeal‑‑Such factual position had not been controverted by respondent by filing a counter‑affidavit ‑‑‑ Review petition riled from date of knowledge of dismissal of appeal, was within time‑‑ Delay in filing application was condoned by Court accepting application of petitioner for condonation of delay. Syed Jamshed Ali for Petitioner. Mian Abdus Sattar Najam for Respondent. Date of hearing: 14th March, 1992. This petition for review was filed on 20‑7‑1989 seeking review of the judgment dated 10‑9‑1988 whereby the Regular Second Appeal was dismissed on the ground that no decree can now be passed in favour of the appellant/applicant in view of the law laid down in the case of Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287.

2. It is pointed out that it was not a 'no decree' case and as such, the ratio of Sardar Ali's case does not apply to it. This appears to be the correct position as the pre‑emption suit riled on 26‑11‑1963 was decreed by the learned Trial Court vide judgment and decree dated 22‑12‑1965 and the appeal filed by the appellant was dismissed by the learned Additional District Judge vide judgment and decree dated 5‑12‑1966. The vendee/applicant had then filed the Regular Second Appeal. The suit having thus been decreed prior to the crucial date, the appeal has to be disposed of on merits. Learned. counsel for the respondent/pre‑emptor does not controvert this position. He, however adds that the application for review is barred by time and should be dismissed as, such.

3. In reply, learned counsel for the applicant/appellant submits that the appellant was neither present in Court when the appeal was dismissed nor the learned counsel who had entered appearance had informed them of the fate of the appeal. He argued that in fact the appeal would not have been dismissed had the learned counsel pointed out to the Court that this appeal was to be argued and disposed of on merits as the suit had been decreed prior to the crucial date i.e. 31‑7‑1986. This factual position has not been controverted the respondent/pre‑emptor by filing a counter‑affidavit. This application riled from the date of knowledge is admittedly within time. For the reasons given above, the delay in riling the application is condoned. The application for condonation of delay is accepted.

4. For all these reasons, the Review Application is accepted with the result that the appeal stands restored at its original number and shall be fixed for disposal in accordance with law. H.B.T./G‑75/L Review accepted.