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Civil Petition for Special Leave to Appeal No.1152 of 1983, decided on 27th October, 1986.
Constitution of Pakistan (1973)‑‑
‑‑‑Art. 185 (3)‑‑Limitation Act (IX of 1908), Arts. 163 & 164 Civil Procedure Code (V of 1908), 0. IX, R. 4 ‑Dismissal of suit for non prosecution‑‑Application for restoration filed after 11 months allowed in revision before High Court on ground that limitation for filing application for restoration of suit under Art. 163, Limitation Act would commence from date plaintiff came to know about dismissal of his suit‑‑Order impugned‑‑Leave to appeal granted to consider plea that Article 163 which applies to case of plaintiffs prescribes that limitation of 30 days shall commence from date of dismissal of suit and, as such, date on which plaintiffs came to know of dismissal is irrelevant‑‑Date of knowledge is relevant only with respect to defendants which is governed by Art. 164 of Act (IX of 1908).
Ch. Imtiaz Ahmad, Advocate Supreme Court and Mahmood A. Qureshi, Advocate‑ran Record for Petitioners.
Mian Nusratullah and Rana Maqbul A. Qadri, Advocate‑on‑Record for Respondent.
This petition is directed against the judgment of the High Court, dated 19‑6‑1983, dismissing their civil
revision in a pre‑emption case.
2. The facts, briefly, are that' Sher Muhammad etc. had filed a pre‑emption suit on 13‑9‑1975 against Ghulam Hussain etc. (petitioners herein) in the Court of Civil Judge at Sargodha. This case was subsequently transferred to the learned Civil fudge at Shahpur, which was received in his Court on 30‑10‑1980. It was fixed for hearing for 26‑11‑1978. On that date the plaintiffs‑respondents did not appear and the suit was, therefore, dismissed for non‑prosecution. An application for restoration of the said suit was filed by the plaintiffs on 6‑10‑1979 i.e. after about 11 months and the same was dismissed by the learned trial Court on 24‑3‑1980, holding that it was barred by time. It was, however, held that the plaintiffs‑respondents had no knowledge of the date of hearing i.e. 26 -11‑1978 on which date the suit was dismissed in default.
The plaintiffs filed an appeal before the Additional District Judge, Sargodha, which was accepted on 28‑6‑1981 on the ground that a notice served on the counsel engaged to prosecute the case at Sargodha did not amount to a notice to him as far as the prosecution of the case at shahpur was concerned. The plaintiffs filed a Revision Petition before the High Court which was allowed on the ground that limitation for filing an application for restoration of the suit under Article 163 of the Limitation Act would commence from the date the plaintiff came to know about the dismissal of his suit.
3. Learned counsel argued before us that the impugned judgment of the High Court is based on a misconception inasmuch as that Article 163 of the Limitation Act which applies to the case of the 'plaintiffs' prescribes that the limitation of 30 days shall commence from the date of the dismissal of the suit and, as such, the date on which the plaintiffs came to know of the dismissal is irrelevant. He submitted that date of knowledge is relevant only with respect to defendants, which is governed by Article 164 of the Limitation Act.
4. The question needs consideration. Leave is, therefore, granted for this purpose.
Security in the sum of Its. 2 000.
5. To be heard on the same record with permission to file additional documents.
M.I. Leave granted.
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