2004 PLP 1675 (MLD)

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2. The application at Serial No.1 has been made under section 5 of the Limitation Act for condonation of delay in filing the application under Order XVI, rule 19, C.P.C. Listed at Serial No.2. Regarding the background it may be stated that on 23-4-2002 the main High Court Appeal was fixed for regular hearing, but none appeared until 11-50 a.m. And it was the last matter to be dealt with by the Bench, the appeal was, therefore, dismissed for non-prosecution. The matter remained unattended and on 5-9-2002 the application for restoration of the appeal was filed and since there was exorbitant delay in filing the application an application was also moved for condonation of the delay under section 5 of the Limitation Act. The reasons for not attending the Court have been set forth in paras. 4 and 5 of the affidavit of the learned Standing Counsel filed in support of the application. It is stated that this case was omitted from the cause list, therefore, he could not attend the Court and it came to his knowledge, for the first time, on 4-9-2002 when the departmental representative informed him that the appeal had been dismissed on 23-4-2002. The respondent No.2, in her affidavit, controverted these statements and stated that the appeal was being fixed for regular hearing for quite a good time, but nobody was attending the case. It was also questioned as to what was the source of the departmental representative in getting the knowledge of dismissal. We have heard Mr. Nasir Maqsood learned counsel for respondent while the learned Standing Counsel for appellant is absent. We have also gone through the record of daily cause list of this Court and noted that on 23-4-2002 the instant HCA bearing No.175 of 1994 was listed at Serial No.11 of the cases fixed for regular hearing. The name of counsel for appellant was mentioned against the case. The Vakalantama of State counsel is available on record. There is, as such, no reason to hold that the case was not properly posted in the cause list. Under Article 168 of the Schedule to Limitation Act the application for re-admission of appeal could be filed within 30 days of the date of dismissal, but the instant application was filed after a lapse of more than 4 months. In absence of plausible explanation, the delay cannot be condoned for, valuable rights are created after passing of such order. Moreover, even today none has appeared for the appellant although the case is very much listed in the cause list. It may further be observed that no doubt the appellant is Federal Government, but as has consistently been held by the Hon'ble Supreme Court the Government cannot be treated differently form any other party. Lahore High Court v. Nagar Muhammad Fatiana (1998 SCMR 2376) and Province of East Pakistan v. Abdul Hamid (1970 SCMR 558) and (PLD 2001 SC 340), may be cited in this context. For the reasons stated above the application (Serial No.1) for condonation of delay is dismissed. In consequence thereof the application (Serial No.2) under Order XVI, rule 19, C.P.C. Also stands dismissed. H.B.T./I-13/K Application dismissed.