2016 C L C 1747
[Balochistan (Sibi Bench)]
Before Muhammad Kamran Khan Mulakhail and Ghulam Mustafa Mengal, JJ
SHER DIL ----Applicant
Versus
Mst. SHARIFA and 2 others ----Respondents
Civil Miscellaneous Application No.(S)4 of 2013, decided on 5th June, 2014.
Civil Procedure Code (V of 1908) ---
----O. XLI, Rr.17, 19 & S.151--- Limitation Act (IX of 1908), Art.168---Dismissal of appeal for
non-prosecution and lack of interest of appellant ---Re -admission of appeal ---Limitation ---
Invocation of S .151, C.P.C.---Scope ---Re -admission of appeal was governed by O.XLI, R.19,
C.P.C., and the limitation for re -admission fell under Art.168 of Limitation Act, 1908, which
stipulated the period of thirty days ---If appeal was dismissed under O.XLI, R.17(1), C.P.C., for
default of appellant and application under R.19 of O.XLI, C.P.C., was not filed within the period
prescribed by Art.168 of Limitation Act, 1908, inherent power under S.151, C.P.C., could not be
invoked without sufficient cause and justifiable rea son, particularly in an application which was
barred by time ---Application for re -admission of appeal, in the present case, was filed by the
appellant with the delay of about fourteen months ---Appellant had not been pursuing the remedy
diligently, as no immediate steps were taken by the appellant for getting the appeal re- admitted,
after obtaining the certified copy of dismissal order ---Limitation, would create right in favour of
the other side; law always favoured those who were vigilant and not those who were negligent in
pursuing their remedy ---No exception could be taken against the order of dismissal of appeal;
application for re -admission of the appeal was dismissed being without any substance.
Khushi Muhammad v. Member Board of Revenue 2008 SCMR 358; Nowsheri Khan v.
Saeed Ahmed Shah 1983 SCMR 1092 and Sindh Industrial Trading Estate v. West Pakistan
Water and Power Development Authority PLD 1991 SC 250 ref.
Sindh Sugar Corporation Ltd. v. Messrs Maqbool Associates. Karachi 2008 SCMR 47
and Worl dcall Telecom Ltd. v. Pakistan Telecommunication Authority 2011 SCMR 959 rel.
Hasnain Iqbal Minhas for Applicant.
Muhammad Saleem Lashari for Respondent.
Date of hearing: 22nd May, 2014.
ORDER
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. --- The appellant in Regular First
Appeal No.(s) 08 of 2009 has filed this Civil Miscellaneous Application has been filed under
Order XLI, Rule 19 read with Section 151 of the Code of Civil Procedure ("C.P.C.") for re -
admission of appeal, which was dismissed for non -prosecution and non interest vide this court's
order dated 20.09.2012, whereby the following order was passed:
"Despite repeated calls, neither appellant nor his counsel is in attendance the perusal of
record reflects that the learned counsel for the appellant appeared on 29.10.2009, when
the case was admitted to regular hearing. Thereafter on 09.09.2010, 04.11.2010,
09.01.2012, 10.05.2012 and 24.05.2012 remained absent. Under such circumstances, we
are confident that the appellant has lost his interest in prosecution of appeal, therefore,
appeal is dismissed for non- prosecution and non -interest."
2. Mr. Hasnain Iqbal Minhas, learned counsel for the applicant/ appellant contended that the
main appeal pertained to the Sibi Circuit Bench, which was pending at Principal Seat Quetta, but
subsequently, it was transferred to the Sibi Circuit Bench but no notice was served upon the
applicant or on his counsel in respect of transfer of the case; therefore, the appeal was dismissed
in default and for non- prosecution on 20.09.2012. He further added that the non- appearance of
the appellant and his counsel was not intentional but due to non- effective service. He added that
since the valuable rights of the applicant were involved in the matter and due to dismis sal of his
appeal serious prejudice has been caused, which is also causing irreparable monetary losses to
him. He contended that the law favors adjudication of lis strictly on merits and not on technical
grounds. He further stated that miscalculation, mism anagement and misconception are always
treated as human error, which mostly causes due to inherent shortcomings and inability to realize
the seriousness of the situation at an appropriate time. He finally contended that the order of
dismissal may be recalled and the main appeal may be re -admitted for its adjudication on merits
and in accordance with law.
3. Mr. Muhammad Saleem Lashari, the learned counsel for the respondents strongly
opposed the contention and stated that the application for re -admission of the appeal was filed on
11.12.2013, which is barred by about one year and three months. He contended that though the
application under Section 5 of the Limitation Act, 1908 for condonation of delay is also herewith
but under the law of limitation the ap plicant is bound to explain the delay of each and every day.
He added that without explaining and stating sufficient reasons for causing delay, the same
cannot be condoned on flimsy and concocted grounds. He referred to the order dated 28.11.2013
passed by the learned Senior Civil Judge Dera Allah Yar being the executing court, whereby
Tehsildar Jhat Phat/Dera Allah Yar was directed to take over the possession of decreed land ("the
suit land") with the help of SHO police station Dera Allah Yar with further direction to hand
over the peaceful possession of the suit land to the decree holder and the case was adjourned to
16.12.2013 for submission of compliance report. He contented that when the referred to order of
the executing court was passed, the applicant along with his counsel were present. He further
added that the objection petition was filed by the applicant against the execution of the judgment
and decree and after contesting his objections were also overruled. He contended that the
contention advance d in respect of knowledge of the applicant is without any substance. He
finally urged that after dismissal of the main appeal the decree passed in favour of the
respondents had successfully been executed and this application was filed after satisfaction of the
decree, therefore, the application for re -admission of the main appeal deserves to be dismissed
being barred by time and based upon false and concocted contentions. He relied upon judgment
of the Hon'ble Apex Court in cases of Khushi Muhammad v. Membe r Board of Revenue 2008
SCMR 358, Nowsheri Khan v. Saeed Ahmed Shah 1983 SCMR 1092 and Sindh Industrial
Trading Estate v. West Pakistan Water and Power Development Authority PLD 1991 SC 250.
4. We have heard both the leaned counsel and have also gone thr ough the relevant provision
of law involved in the instant case. The re -admission of the appeal is governed by Order XLI,
Rule 19, C.P.C., whereas the limitation for re -admission is governed by Article 168 of the
Limitation Act, 1908, which stipulates the period of thirty days for re -admission of appeal,
therefore, if the appeal is dismissed under Order XLI, Rule 17(1), C.P.C. and application under
Rule 19 is not filed within the period prescribed by the Article 168 of the Limitation Act, the
inherent power under Section 151, C.P.C. cannot be invoked without sufficient cause and
justifiable reasons particularly in an application, which is barred by time.
5. In the instant case the applicant himself appended a copy of order dated 28.11.2013,
passed by the l earned Senior Civil Judge Dera Allah Yar, which shows that after hearing the
arguments an objection petition filed by the applicant against the execution of judgment and
decree dated 16.03.2009, it was finally decided and case was adjourned to 16.12.2013 f or
submission of compliance report and during this interval the instant application for re -admission
of appeal was filed.
It is an admitted position that in the cause list dated 20.09.2012 the case was fixed in
which the name of the learned counsel for the appellant/applicant was also mentioned but perusal
of record reflects that the main appeal was being consecutively fixed on 09.09.2010, 04.11.2010,
09.01.2012, 10.05.2012 and 24.05.2012, when the appellant and his counsel remained absent.
We have summo ned the record of main appeal on request of counsel for the respondents, perusal
whereof reveals that the learned counsel for the appellant appeared only on first hearing i.e.
29.10.2009 when the appeal was admitted to regular hearing and the operation of impugned
judgment and decree was got suspended and paper book was directed to be prepared at the cost
of appellant. Thereafter on the aforesaid dates when the case was fixed for hearing neither the
appellant nor his counsel turned up. In addition on coming to know about the dismissal of appeal
the order of dismissal was obtained on 04.10.2012 but the application for re -admission of the
appeal was filed on 11.12.2013 with the delay of about fourteen months. The facts noted herein
above reveal that the petiti oner had not been pursuing the remedy diligently as no immediate
steps were taken for getting the appeal re- admitted, after obtaining the certified copy of dismissal
order on 04.10.2012. It is well -settled that as far as the limitation is concerned, it cre ates right in
favour of the other side, the law always favors those who are vigilant and not those who are
negligent in pursing their remedy. Reliance in this behalf is placed upon a reported judgment of
the Hon'ble Apex Court in the cases of Sindh Sugar C orporation Ltd. v. Messrs Maqbool
Associates. Karachi reported in 2008 SCMR 47 and Worldcall Telecom Ltd. v. Pakistan
Telecommunication Authority 2011 SCMR 959.
We are, therefore, of the considered opinion that no exception can be taken against the
order of dismissal of the appeal and application for re -admission of the main appeal is dismissed
being without any substance.
HBT/45/Bal Application dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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