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Civil Miscellaneous Nos. 4560/C and 4561/C of 1975 and Regular Second Appeal No. 894 of 1969, decided on.8th April, 1979.

-- O. XLI, rr. 11 & 17-Dismissal of appeal for non-appearance under r. 17-Application for restoration after five years and even after thirty days from knowledge of dismissal without explanation---Held, r. - 11 does not apply.-[Appeal (civil)].

.-- O. XLI, r. 17-Notice of day fixed-Held, no legal requirement to issue notice to appellant or counsel-Publication of list and its affix ation outside Court-Only requirement under rules.

Syed Sardar Shah Bokhari for Petitioner.

Maulvi Ihsanul Haq for Respondent.

The first Civil Miscellaneous Application (C. M. No. 4560/C of 1975) is for restoration of the appeal dismissed in default before admission, by order dated 9-9-1970, passed by Mr. Justice Muhammad Munir Farukee as he then was.

The Second Civil Miscellaneous application, viz. (C. M. No. 4561/C of 1975) is for condonation of delay in making the application for restoration of the appeal Both these civil miscellaneous applications were filed on 23-10-1975.

2. The learned counsel for the petitioner-appellant contended that the order dismissing the appeal was void as the appeal could not be dismissed without calling for the record as provided by Order XLI, rule 11, C. P. C. In the alternative he argued that the Advocate engaged by the petitioner appellant for conduct of the appeal was not a member of the High Court Bar Association and he did not receive the cause list of the case having been fixed on the date on which it was dismissed. No notice, he said, was issued to the petitioner as well. On the above premises he argued that the petitioner should not be penalised for the counsel's fault in appearing.

3. On the other hand, 'the learned counsel for the respondents submitted that rule 11 of Order XLI, C. P. C. has no application to the case in hand as the appeal has been dismissed in default.

4. As to the delay caused in filing the appeal, the learned counsel submitted that the application had been filed five years after the dismissal of the appeal in default and there is no sufficient ground given for condona tion of such an inordinate delay.

5. He also pointed out that the averment in the application that the petitioner learnt of the dismissal of the appeal on 22-10-1975 is factually incorrect as the petitioner had the knowledge of dismissal of the appeal on 12-9-1975 when an application for inspection of the file was made on his behalf and the file actually inspected on 16-9-1975. He submitted that counting the period of limitation from this date even the application had been filed out of time.

6. Having considered the controversy involved, I am- of the view that the contentions raised by the learned counsel for the respondents have force. Rule 11 of Order XLI, C. P. C. apparently has no application to the appeal in question as the same had been dismissed under Order XLI, rule 17,1 C. P. C. on account of non-appearance of the petitioner-appellant and his counsel. There is no legal requirement of issuing a notice to the appellant or his counsel notifying the date fixed. The publication of the list and e affixation thereof outside the Court is all that is required under the rules. There is, thus, no reason given which could be considered as sufficient for restoration of the appeal. In addition to the above position, the inordinate delay in making the application has not at all been explained. In fact, this delay abundantly establishes the gross negligence of the petitioner-appellant in prosecuting the appeal in question. As a matter of fact the petitioner appellant has made a wrong statement in the application that he came to know about the dismissal of the appeal on 22-10-1975 as the record clearly shows that such a knowledge was there with the appellant's counsel on 12-9-1975 in any case. Thirty days reckoned from 12-9-1975 even show the petition as having been filed out of time. There is no explanation given for this period at all.

7. In. view of the foregoing, I find no merit in these petitions which are dismissed.

K. M. A Appeals dismissed.

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