Find a Lawyer

Constitutional Petition No.S-305 of 1974, decided on 28th May, 1985.

Civil Procedure Code (V of 1908)--

---O.IX, r.9--Limitation Act (IX of 1908), Arts.163 & 181--Dismissal of application for non-prosecution--Application for restoration--Limitation- Petition for restoration of application dismissed for non-prosecution was filed by petitioner after 4 months of its dismissal--No explanation whatsoever was offered for delay--Subject-matter of petition being of civil nature, application for restoration, held, would be governed by O.IX, r.9, C.P.C.--Period prescribed under Art.163 and not under Art-181 Limitation Act, 1908 would be attracted.

Hatem Ali and others v. Additional Settlement Commissioner (Lands) 1982 C L C 2192 ref.

Wajihuddin Ahmad and Abdul Rahim Kazi for Petitioners.

Hassan Mahmood for Respondents Nos.4 and 5.

This application under Article 9 of Provisional Constitutional Order is filed by the petitioner for restoration of the petition which was dismissed for non-prosecution on 1-12-1982. The application is hotly contested by respondents 4 and 5. It is alleged in the application that the petitioner is a sick person and is confined to bed and cannot move about. It is also alleged in the application that the case was being looked after by his son Khurshid Ahmed. It is stated that on 1-12-1982 when the above petition was fixed for hearing in the Court the Advocate of the petitioner fell ill and, therefore, he also could not appear on the date of hearing. In the counter-affidavit filed by Kazi Israr Ahmed (respondent No.4) he has disputed the illness of the learned counsel for the petitioner who was then appearing for him. It is also alleged in the counter-affidavit filed on behalf of respondent 4 that there is no sufficient cause shown by the petitioner for restoration of the petition. After hearing the learned counsel for the petitioner and respondent No.4 I find that the conduct of the petitioner has been substantially negligent in pursuing the present case. Even if the statement made in the application is accepted that the petitioner and his Advocate both were absent on the date of hearing namely 1-12-1982 when the petition was dismissed for non-prosecution on account of their illness, no explanation whatsoever has been offered either by the petitioner or his counsel or his son Khurshid Ahmed for not making application for restoration of the application within 30 days of its dismissal. Mr.Wajihuddin, the learned counsel for the petitioner contends that Article 163 of the Limitation Act does not apply to the petition and, therefore, an application for restoration could be made within three years of the date of dismissal under Article 181 of the Limitation Act. It is accordingly contended by the learned counsel that if the application is belated the inconvenience caused to the Respondents can be compensated by awarding appropriate cost in the case. Mr. Hassan Mahmood, learned counsel for respondents 4 and 5 on the other hand contends that the subject-matter of the present petition being one of a civil nature the application for restoration is governed under Order IX, rule 9, C.P.C. and, therefore, the limitation prescribed under Article 163 of the Limitation Act will be attracted. The contention of the learned counsel for the respondents is supported by the observation) made in the case of Hatem Ali and others v. Additional Settlement Commissioner (Lands) 1982 C L C 2192. Apart from it I find that no A explanation whatsoever has been offered for not making the application until 11-4-1983 while the petition was dismissed on 1-12-1982. The petitioner it appears has been quite negligent in pursuing the petition and a negligent act of the petitioner cannot be condoned however bona fide it may be. No sufficient cause has been shown for restoration. The application is accordingly dismissed.

H. B. T

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.