2015 Y L R 89
[Balochistan]
Before Muhammad Ejaz Swati, J
QADIR BAKHSH ---Appellant
Versus
SAEED AHMED QURESHI ---Respondent
Civil Appeal No.7 of 2013, decided on 29th August, 2014.
Civil Procedure Code (V of 1908) ---
----O. XLI, R. 19--- Limitation Act (IX of 1908), Art. 168 & S. 5---Appeal, restoration of ---
Limitation ---Sufficient cause---Discretionary relief ---Scope ---Appeal was dismissed for non-
prosecution against which an application for restoration was moved which was also dismissed ---
Contention of appellant was that he remained ill ---Validity ---Appellant remained absent on
various dates of hearing and Appellate Court was left with no option but to dismiss the appeal ---
Application for restoration of appeal was file d after delay of 4 months but no document was
produced with regard to illness of appellant ---Appellant had not taken due care and had not been
vigilant to pursue his appeal ---Grant of restoration application was discretionary relief which was
subject to sufficient cause---Discretion had to be exercised in favour of a party who had been
vigilant and had due respect to the order of court ---Appellant did not deserve discretionary relief
in absence of plausible and cogent reason ---Period for filing an applicati on for restoration of
appeal was 30 days ---No application for condonation of delay had been moved in the present
case---Delay beyond limitation period would create a right in favour of opposite party ---Appeal
was dismissed in circumstances.
Lal Dino v. Deputy Commissioner 1982 SCMR 201 and Mst. Halima Tahir v. Mst.
Naheed Ejaz 2010 MLD 554 rel.
Manzoor Ahmed Rehmani for Appellant.
Respondent in person.
Date of hearing: 22nd August, 2014.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. --This civil appeal has been directed against the order
dated 12th July 2013 and 13th February, 2013 (hereinafter referred as to "the impugned orders"),
passed by the Additional District Judge -IV, Quetta (hereinafter referred as to "the appellate
Court"), whereby, application filed by the appellant for restoration of his appeal was dismissed
and judgment and decree dated 14th September 2012 (hereinafter referred as to "the impugned
judgment and decree"), passed by the Judicial Magistrate -IV/Civil Judge, Quetta (hereinafter
referred as to "the trial Court"), whereby, the suit for easement right filed by the appellant was
dismissed.
2. The facts rising out of this appeal are that the appellant/plaintiff filed a suit on the basis
of easement rights with the averments that the re spondent/defendant is his close neighbour and
resident of the same street, situated at Zarghoonabad, Nawan Killi, Quetta. The street is a public
path/thoroughfare and being used for more than 20 years. It was further averred that respondent
on 5th May 2007 raised an obstruction as a support to his boundary wall of the house, which
created hindrance in the way of appellant and the other inhabitants of the street, which is the
cause of nuisance. The appellant initially initiated proceedings under section 133, Cr.P.C. before
the Judicial Magistrate, Quetta, and up to this Court he could not succeed and said proceedings
according to him were dismissed on technical grounds, as it was held by this Court in the
judgment dated 23rd June 2009, that public nuisance di d not make out and for the purpose of
private nuisance appellant may approach the competent jurisdiction. So appellant filed a suit with
the averment mentioned hereinabove.
3. The respondent by way of filing written statement contested the suit by raisin g certain
preliminary legal objections as well as on merits.
4. The divergent pleadings necessitated following issues: --
"(1) Whether no cause of action has been accrued to the plaintiff against defendant therefore,
his suit is liable to be rejected un der Order VII, Rule 11, C.P.C.?
(2) Whether the plaintiff does not fulfil the requirement of period of 20 years for enjoying
the right of road?
(3) Whether the suit of the plaintiff is hit by doctrine of res judicata?
(4) Whether the defendant has ra ised construction in the street and created obstruction in
street which is a thoroughfare due to which the easement right of the plaintiff has been infringed?
(5) Whether the plaintiff is residing the same street for the last 20 years?
(6) Whether the plaintiff is entitled to the relief claimed for?
(7) Relief?"
5. In order to prove his contention the appellant produced P.W.1 Muhammad Nawaz, P.W.2
Shahid and thereafter got recorded his statement, whereas, in rebuttal, the respondent did not
produce any witness except his own statement, and submitted certain documents on record.
6. The learned trial Court on 24th March 2012 dismissed the suit, however, in appeal the
Additional District Judge IV, Quetta, vide judgment and decree dated 29th June 2012, set aside
the judgment and decree, and remanded the case to the trial Court for re -writing of the judgment.
After remand the trial Court vide impugned judgment and decree dismissed the suit. The
appellant preferred an appeal before the District Judge, Que tta, which was transferred to the
Court of Additional District Judge -IV, Quetta, where, due to non- appearance on various dates of
hearing, the appellate Court vide order dated 13th February 2013, dismissed the appeal in non-
prosecution. The appellant filed an application on 11th June 2013 for restoration of the appeal,
which was dismissed on 12th July 2013, hence this appeal.
7. The learned counsel for the appellant contended that after filing appeal, the appellant
being patient of diabetes and heart was proceeded to Punjab for treatment and he could not
inform about the next date of hearing to his counsel and case was omitted for entry in daily diary
of the counsel; that no period of limitation is provided under the law for restoration of appeal
under Ord er XLI Rule 19 C.P.C. and, therefore, in view of Article 181 of the Limitation Act
application for restoration of appeal was within time, the appellate Court failed to consider this
important aspect of the matter and, thus, caused grave prejudice to the appellant.
8. The respondent strongly opposed the contention of the learned counsel for the appellant,
and contended that the appellant on the same cause had initially launched criminal proceedings
under section 133, Cr.P.C. and after dismissal of the case up to this Court, he on the same subject
matter started civil litigations by filing the suit, which was too dismissed on merits as appellant
failed to establish his claim through any cogent evidence; that after filing appeal, the appellant
did not appear on several dates of hearing and the appellate Court had rightly dismissed the
appeal for non -prosecution; that the application for restoration of appeal was hopelessly barred
by time and the appellant had failed to put -forth any plausible reason of such de lay.
9. Having heard the learned counsel for the appellant and respondent in person, the record
of the case has also been perused. From the perusal of the order dated 13th February, 2013, it is
noted that after filing of appeal, the appellant and his counsel remained absent on various dates
of hearing i.e. 15th November, 2012, 6th December, 2012, 18th December 2012 and 13th
February 2013. Finally the Court was left with no option, but to dismiss the appeal through the
impugned order dated 13th February, 2013. The appellant had filed application for restoration of
appeal on 11th June, 2013, after delay of 4 months and cause of delay having been shown the
serious illness of the appellant, but no document or medical report in this regard was produced.
The app ellant has not taken due care and has not been vigilant to pursue his appeal before the
appellate Court. The grant of restoration application is though a matter of discretionary relief
subject to sufficient cause and such discretion has to be exercised by the Court in favour of the
party who has been vigilant and has awarded due respect to the order of the Court, therefore, in
the absence of any plausible and cogent reason, the appellant does not deserve discretionary
relief in his favour. The contention of the learned counsel for the appellant that no limitation is
prescribed for filing application for restoration of appeal and appellate Court under Order XLI,
Rule 19, C.P.C. was competent to restore the same without touching the question of limitation
and even otherwise, Article 181 of the Limitation Act was applicable, is untenable. The appellate
Court vide order dated 13th February, 2013, dismissed the appeal for non- prosecution, whereas,
the restoration application had been presented on 11th June, 2013 a fter 4 months of dismissal of
the appeal, which was beyond the period of limitation of thirty days, as provided under Article
168 of the Limitation Act and that too without filing application for condonation of delay under
section 5 of the Limitation Act, hence such provision is to be construed strictly in absence of any
plausible and cogent reason or explanation of delay of each day because any delay beyond the
said period would necessarily create a right in favour of the opposite party. In the case of Lal
Dino v. Deputy Commissioner (1982 SCMR 201) the Hon'ble Supreme Court observed as
under: --
"On the facts stated, it is clear that the appeal of the petitioner had been dismissed for
non-prosecution, therefore, the construction placed by the learned Judge on Article 168 is correct
and we see no reason to differ from his view."
In another case titled Mst. Halima Tahir v. Mst. Naheed Ejaz (2010 MLD 554), the application
for restoration was rejected on the point of limitation and non- filing of application for
condonation of delay under section 5 of the Limitation Act and observed as under: --
"Under Article 168 of Limitation Act the application for restoration of the appeal,
dismissed for non- prosecution, has to be filed within thirty days from the date of dismissal and
not from the date of knowledge.
Though by Sub- Rule (2) of the Rule 19 of the Order XLI, C.P.C., section 5 of Limitation
Act was made applicable to the application for restoration of the appeal, dismissed for non-
prosecution, but the app ellants had not filed any such application nor any explanation whatsoever
given by the counsel for the appellants for the delay in filing of the application. It is established
law that when the application is filed out of time, the party filing such applic ation has to explain
each day of delay; moreso, when valuable rights by efflux of time accrue to the opposite party.
The conduct of the appellants and their counsel has altogether been casual and of severe
negligence to which no premium can be given. There being no explanation whatsoever for not
making application in time or for delay in making application, we also find this application to be
time-barred."
In view of the matter, this appeal must fail and it is accordingly dismissed, but without
any order as to cost.
AG/72/Bal. Appeal 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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