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Civil Appeal No. 165 of 1972, decided on 8th May, 1985.

(On appeal from judgment, dated 3‑4‑1972 of Lahore High Court in Civil Revision No. 776 of 1968).

‑‑‑Art. 185(3)‑‑Limitation Act (IX of 1908), S.5 &Art.163 Civil Procedure Code (V of 1908), O.IX, r.8‑‑Appeal by leave‑‑Appellant's suit dismissed for default‑‑Application for restoration of suit although barred by time yet allowed by trial Court on ground that case had been fixed for some other date but it came up by mistake on an earlier date due to some tampering of date on order‑sheet‑‑High Court in revision setting aside order of restoration passed by trial Court holding that since application for restoration was barred by Art.163, Limitation Act, 1908, it was liable to be dismissed‑‑Order of High Court maintained and order granting leave to appeal recalled.

Raja Abdul Razzaq, Advocate‑on‑Record for Petitioner.

A.R. Shaukat, Senior Advocate Supreme Court with Abid Ali Buttar, Advocate‑on‑Record for Respondents Nos. 1 and 2.

K.E. Bhatti, Advocate‑on‑Record (absent) for Respondent No.3. Date of hearing; 8th May, 1985.

The appellant in this case filed a suit for pre‑emption and after a number of dates it was on the 27th June, 1967 fixed for hearing on the 17th September, 1967, but by some mistake it came up for hearing on the 17th of July, 1967. The appellant's lawyer who sits a few paces away from the main door of the Court room heard the matter being called and came in. He was asked to proceed with the case to which he made a statement to the effect that he had 'no instructions for that date'. Upon this statement, the suit was dismissed for non‑prosecution under Order IX, rule 8, of the Civil Procedure Code.

On the appellant coming to know of this he filed an application for the restoration of the suit on the 21st of October, 1967. The application was allowed and the suit was restored on the 15th of October, 1968. The trial Court accepted the contention that the case had been fixed for the 17th of September, but it came up by mistake on the 17th of July due to some tampering of the dates on the order‑sheet. The respondents filed a revision against the above order of the trial Court before the Lahore High Court and a learned Single Judge of that Court allowed the same on the ground that the application filed on the 21st of October, 1967 for restoration was barred by time, as the provisions of section 5 of the Limitation Act did not apply to cases falling under Article 163 of the said Act. The trial Court was, therefore, held to have exercised the jurisdiction which it did not possess, namely, of condoning the delay.

The appellant moved this Court for leave to appeal and contended that the view taken by the High Court was wrong because the Limitation Act did not at all apply in this case. The order dismissing the suit ex parte was itself without jurisdiction, for ex parte proceedings can be ordered only in respect of absence on a day fixed in summons or on a day to which the case stands adjourned by the Court. Taking up proceedings on any other day without notice to the parties and then ordering its ex parte hearing or dismissing it for default on such other date, was without jurisdiction. In this connection reliance was placed on a decision of this Court in the case of Muhammad Swaleh v. Messrs United Grain and Fodder Agencies P L D 1964 S C 97. Leave was granted for considering the above submissions.

We have heard Raja Abdul Razzaq in support of this appeal and Mr. A.R. Shaukat who appeared for the respondents.

We observe that the hearing of the suit was fixed on 17th September, 1967 and not 17th July, 1967 and, therefore, the appellant was expected to appear before the Court on the 17th September, 1967 in connection with the prosecution of the case. If he had done so he would have come to know on the 17th September that the case had already been dismissed on 17th July, 1967 and should have proved an application for setting aside the order of dismissal within a period of 30 days from that date. But the appellant moved the necessary application on the 21st October, 1967 i.e. one month and six days after 17‑9‑1967 viz. the date which was the actual date of hearing of the Suit. The learned Judge in the High Court was of the view that if the appellant had made the necessary application within 30 days from 17‑9‑1967 he would not have interfered with the order of the trial Court restoring the suit but this application was not made even within 30 days from 17‑9‑1967 but beyond. Hence, the application was barred by Article 163 of the Limitation Act and was, therefore, liable to be dismissed simply on the ground that it was made beyond the limitation.

We think that this was a very reasonable view of the matter and, therefore, in the circumstances of the present case this was not a fit case in which leave to appeal should have been granted.

We would, therefore, revoke the order of this Court, dated 6‑11‑1972 granting leave to appeal, with the result 'that the petition filed by the appellant seeking leave to appeal shall be deemed to have' been dismissed.

This appeal stands disposed of accordingly.

Parties are left to bear their own costs.

M . Y . H . Order of leave to appeal recalled.

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