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(LAND) Em ‑Respondents

Miscellaneous Suit No. 9 of 1980 and Miscellaneous Suit No. 450 of 19&1 in C. P. No.

461 of 1972, decided on 21st February, 1982.

‑‑O. IX, rr. 4 & 9 [as amended by Civil Procedure .Code (Amend ment) Ordinance (X of 1980)] read with Limitation Act (IX of 1908), S. 5‑Amendment, effect of‑Application for restoration filed after delay of ten months and not decided till Ordinance X of 1:980 came into force‑Such application, held, barred by time in circumstances. [Limitation].

Abdul Karim Lakhani for' Petitioners.

Badrudduja for Respondent No. 3.

This is an application .under section 5 of the Limitation Act filed on 30‑5‑ 1981 praying for condonation of delay in . making an application which was filed on 11‑10‑1979 for setting aside the dismissal order dated 28‑5‑1979, though the ‑ order by which the petition was dismissed for non‑prosecution is dated 27th January, 1979. Section 5 of the Limitation Act has been made applicable to Order IX, rules 4 and 9, C.P.C. by Ordi nance X of 1980 but without making any provisions therein for applying it with retrospective effect. .

It is, therefore, contended by Mr. Badrudduja that application under section 5 is not maintainable. He relies on a decision of this Court in Abdul Kalam v. Bashir Ahmad Rana and another (P L D 1981 Kar. 473). In the aforecited case it was observed by Saeeduzzaman Siddiqui, J. as follows :‑

"1t is, however, not disputed before me that on the date the appli cation for the restoration of suit was made, section 5 was not applicable to Order IX, rule 9, C:P.C. by an amendment brought about in C.P.C on 26th March, 1980 by Ordinance X of 1980. It is contended by Mr. Ashfaq Hussain the learned counsel for the plaintiff that this amendment made on 26th. March, 1980 will also be appli cable to the present case as on that date the‑application for restora tion of suit was pending in the Court. The :basis for this argument is that the amendments brought about by Ordinance X of 1980 in the Code of Civil Procedure are procedural in‑ nature and are, therefore, retrospective in operation. I am unable to accept this contention. The period of limitation for filing application under Order IX, rule 9 in this case admittedly expired on 4‑2‑1979. Even if I accept the contention of the learned counsel that the amend ments introduced by Ordinance X of 1980 are purely procedural in nature, even then it does not mean that the past and closed transactions should be reopened and decided in accordance with the amended law. No such interpretation arises on the language of the amending Ordinance. Mr. Ashfaq Hussain has referred to a passage from Maxwell on Interpretation of Statutes appearing at page 222 of 1969 Indian Edn. of the book to contend that the amendments in procedural law are generally operative retrospectively, but this passage is of hardly any assistance to the learned counsel.

The contention of Mr. Badrudduja finds support from‑the cited case. In the present case the petition was dismissed .for non‑prosecution on 27th January, 1979 and the application for restoration was filed on 18 11th October, 1979. Therefore, the same was clearly barred by time.

Accordingly, both the applications are dismissed.

M. A. K Applications dismissed.

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