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Civil Petition for Special Leave to Appeal No K‑79 of 1979, decided on 19th August, 1980

(On appeal from the judgment and order of the Sind High Court dated 23‑12‑1978 in Appeal K‑33 of 1975)

Limitation Act (IX of 1908)‑

‑‑ Arts. 168 & 181‑Restoration of appeal dismissed for: default and non‑prosecution‑Article 168, Limitation Act, 1908, held, applicable and not residuary Article 181, hence, prescribed limitation in such case thirty days.

Maqbool Ahmed Khan, Advocate Supreme Court instructed by A. Aziz Dastgir, Advocate‑on‑Record for Petitioner.

Hussain Adil, Advocate, instructed by Ali Akbar, Advocate‑on‑Record for Respondents.

Date of hearing: 19th August 1980.

.‑The petitioners had filed an appeal in the Sind High Court against the judgment of the District Court, Dadu. They were not able to serve to private respondents in this appeal, therefore, they obtained the permission of the Court to serve these respondents by substituted service, and, therefore, they had to deposit the fees for substituted service. They were given adjournment after adjournment by the Court in order to deposit the requisite fee and have the respondents served. But, they appear to have lost all interest in the prosecution of this appeal therefore, whilst granting another adjournment on 19‑10‑1976, the learned Judge before whom the appeal was placed passed an order that the petitioners would not be given any further adjournment. The appeal came up for the hearing in pursuance of this order on 15‑10‑1976 but as the petitioners had again failed to deposit the fees for service and to have the respondents served, the learned Judge dismissed the appeal for default and non‑prosecution. More than eighteen months after the dismissal of the appeal, the petitioners filed an application for the re‑admission of their appeal and they relied on Article 181 of the First Schedule to the Limitation Act, because this was a residuary Article and because the period of limitation was three years. However, Ajmal Mian, J. who heard this application held that the case of the petitioner fell under Article 168 and, therefore, as their application was time‑barred by more than seventeen months, he dismissed it by his order dated 23‑12‑1978.

The petitioners had challenged this order in a petition for leave, but as the petition is time‑barred by 30 days, there is an application for condoning the delay and as it fails to make out sufficient cause for the delay, the petition merits dismissal on the short ground that it is time- barred.

However, in the interest of justice, we have also heard learned counsel on the merits of the case, and his only plea was that the application of the petitioner against the dismissal of their appeal by the High Court fell under Article 181 and not under Article 168 of the First Schedule to the Limitation Act. And, if the submission be correct, there is no doubt that the impugned order is erroneous. However, the learned Judge had relied on Article 168, which reads:

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168. For the re‑admission of an Thirty days. Thirty days

appeal dismissed for want of the

of prosecution. dismissal.

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On the facts stated, it is clear that the appeal of tire 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.

We pointed out to Mr. Maqbool that his submission that the petitioner' case fell under Article 181 appeared to us to be contrary to the settled law. Therefore, we invited him to refer us to any judgment by any High Court which could support his submission. He was not able to do so and wanted time. As the submission is contrary to the plain language of the Article 16, we see no purpose in adjourning the case.

The petition is without merit and‑ is dismissed both on this ground and on the ground that it is time‑barred.

Petition dismissed.

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