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Civil Petition for Special Leave to Appeal No. 660 of 1977, decided on 27th November 1978,

(On appeal from the judgment and order of the Lahore High Court, dated 17‑10‑1977, in C, M. Nos. 2375‑C/77, C. M. No. 2376‑C/77 and C. M. No. 2377‑C/77).

‑‑O. XLI, r. 19 read with Limitation Act (IX of 1908), S. 5‑Restora tion of appeal dismissed in default‑Condonation of delay‑Application for restoration of appeal dismissed in default‑Section 5, Limitation Act, 1908 not applicable to case‑Registered notice issued to petitioner but petitioner not appearing before Court‑No plea of change of address of petitioner or of notice having been issued with wrong address‑Case appearing to be one of deliberate absence‑Each day of limitation also not explained‑Application for restoration, held, rightly dismissed in circumstances.‑[Appeal (civil)‑‑Condonation of delay].

Zafar Pasha Chaudhry, Advocate Supreme Court and Mahmood A. Qureshi, Advocate‑on‑Record for Petitioner.

Ch. Khurshid, Advocate Supreme Court and S. Wajid Hussain, Advocate- on‑Record for Respondent.

Date of hearing : 27th November, 1978.

‑‑The petitioner filed a regular second appeal being R. S. A, No. 547 of 1966 in the Lahore High Court. It came up for hearing on 8‑3‑1976 but as nobody appeared for the petitioner (appellant), the same was dismissed in default on the aforesaid date. The petitioner filed an application being Civil Miscellaneous No. 2375‑C/1977 for restoration of the appeal under Order XLI, rule 19, C. P. C. on 15‑6‑1977. It was accompanied with another Civil Miscellaneous Application bearing No. 2377‑C/1977 which was filed under section 5 of the Limitation Act IX of 1908 for the condonation of delay and for extension of the relevant period of limitation for filing the restoration application. A learned Single Judge of the Lahore High Court held that section 5 of the Limitation Act was not applicable to an application filed for restoration of appeal dismissed in default and as such the period of limitation could not be extended there under. Consequently he dismissed both the aforesaid applications. The petitioner has come up l a petition for special leave to appeal against the same to this Court.

2. Learned counsel conceded that section 5 of the Limitation Act was, not applicable to an application filed for restoration of an appeal which was dismissed in default. He, however, argued that as there was a sufficient cause for the absence of the petitioner therefore the appeal should have bear restored under section 151, C. P. C. which deals with inherent powers of a Court. The contention has no merit because apart from the controversy whether section 151 can or cannot be invoked in such cases even otherwise on merits, the petitioner has not been able to satisfy us, regarding the justifica tion of his absence on the date of hearing. A registered notice had been issued to the petitioner and despite that he failed to appear. It has no been pleaded that the petitioner has changed his address or that the notice was issued on any wrong address. In this state of affairs it appears to be a case of deliberate absence. It is well settled that in cases of this type a suitor has to explain each day of limitation, but the application filed by the petitioner in the instant case does not purport to do so. In these: circumstances we are unable to find any mistake in the view taken by the learned Single Judge. The petition has no merit, and is dismissed.

Petition dismissed.

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