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Writ Petition No. 2620 of 1981, decided on 10th February, 1982.
‑‑ Art. 199 read with Limitation Act (IX of 1908), Art. 163, Second Sched.‑Neither application for restoration of suit filed within time limit provided in Act nor application for condonation of delay filed Such aspect not considered by trial Judge while ordering restoration of suit‑Impugned order being in disregard of provision of law, held, without lawful authority and quashed.
Syed Sajjad for Petitioner.
Nemo for Respondents Nos. 1 and 2.
Jahangir Ashraf Vasimee for Respondent ‑No. 3.
Date of hearing : 10th February, 1982.
The facts giving rise to this writ petition are that respondent No. 3, Dr. Masood Ahmed Chishti, hereinafter referred to as the respondent, filed a suit against the petitioner, the State Life Insurance Corporation of Pakistan, for recovery of certain amount, on the basis of an insurance policy. The suit was dismissed to default whereupon the respondent made an application for its restoration, The application was resisted by the petitioner, inter alia, on the ground that the application was time barred. But, without going into the question of limitation, the suit was restored for the reason that there was sufficient cause for the absence of the respon dent on the day when the suit was dismissed for non prosecution. Thereafter, the petitioner made an application under Order VII, rule 11 of the Code of Civil Procedure, for rejection of plaint. It was contended therein that the suit was time barred. That application was, however, dismissed by the Civil Judge, who was seized of the suit. The order of restoration of the suit as well as the order by which the petitioner's applica tion for rejection of plaint was dismissed were challenged by the petitioner by filing a revision petition before an Additional District Judge but without success. The petitioner has, therefore, invoked the Constitutional jurisdiction of this Court to assail the said orders of the two Courts below.
2. It was frankly conceded by learned counsel for the respondent that the application for restoration of the suit was time barred. According to Article 163 of the Second Schedule to the Limitation Act, 1908, the application should have made within thirty days of the date of the dismissal of the suit but it was made long thereafter. There was no application under section 5 of the Limitation Act, 1908 for condonation of delay nor such an application it was competent till 14th February, 1980 when the suit was restored. The application for restoration of suit was, therefore, liable to be dismissed on the ground of limitation. This aspect of the matter was not considered by the learned Civil Judge while ordering restoration of the suit. His order, therefore, being in disregard of the said provisions of law, is without lawful authority. It is accordingly, quashed.
3. Since the order of restoration of the suit has been set aside, it is not necessary for me to examine the validity of the order by which the respon dents' application .for rejection of the plaint was dismissed.
4. In view of what has gone above, it is declared that the suit brought by the respondent stand dismissed in default and cannot, therefore, be proceeded with. The writ petition is. disposed of accordingly with no order as to costs.
M.Y .M Appeal dismissed.
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