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First Rent Appeal No. 433 of 1984, decided on 18th March, 1987.

‑‑O. XLI, R. 19‑‑Appeal‑‑Re‑admission of appeal dismissed for default‑‑First application for restoration of appeal dismissed for default--‑Second application, if not time‑barred, held, could be filed without first seeking restoration of previous application‑‑Second application for rehearing of an appeal after dismissal of first application for non‑prosecution is not barred.

A I R 1958 HP 9 and A I R 1923 Pat. 514ref.

‑‑O. XLI, R. 19‑‑Limitation Act (IX of 1908), Arts. 168, 169 181‑‑Application for restoration of appeal dismissed for non- prosecution‑‑Limitation‑‑Such application, held, was governed by Art. 181 and not Art. 168, Limitation Act, 1908.

Yousuf v. Mst. Rabia 1985 S C M R 1066 distinguished.

Yousuf v. Fazal Karim 1983 C L C 2219 and Mst. Afzal Begum v. Y.M.C.A. P L D 1979 SC 18 ref.

‑‑O. XLI, R. 19‑‑Application for restoration of appeal dismissed for non‑prosecution‑‑Appellant's counsel 'stating in his affidavit that he was misled by the fact that application made on behalf of appellant for additional evidence was fixed before Deputy Registrar on 16‑9‑1986, consequently he did not appear before the Court on 31‑8‑1986 under a bona fide belief that the matter would not be posted for regular hearing before such date‑‑Similar lapses on part of counsel were always possible and were still condoned depending upon circumstances of each case‑‑Mistake made by counsel could be bona fide and since he did not expect that case would be posted for regular hearing he did not look into cause list‑‑Appellant, in such circumstances, held, could not be penalised for a small lapse on part of his counsel when lapses of even more serious nature are condoned by Courts‑‑Application allowed and appeal re‑admitted for regular hearing subject to payment of costs to counsel of respondent.

A. Azeez with Muhammad Sharif for Appellant.

Zafar Hadi Shah for Respondent.

Dates of hearing: 16th and 17th February, 1987.

Through this application which has been filed under the provisions of Order XLI, Rule 19 of the Code of Civil Procedure, the appellant requests for recalling the order passed by this Court, dated 31‑8‑1986, whereby F.R.A. No. 433 of 1984 was dismissed for non‑prosecution.

The facts giving rise to this application are, that on 31‑8‑1986 the main rent appeal was posted for regular hearing before this Court. At 12‑00 P‑m when the case was called, only Mr. Zafar Hadi Shah, learned counsel for the respondent was present but the appellants and his counsel were called absent. Consequently the case was dismissed for non‑prosecution. On 8‑9‑1986 Mr. Abdul Aziz, the appellant's counsel filed an application (C.M.A. No. 1531/86) under Order XLI, Rule 19, C.P.C. read with section 21 of the Sind Rented Premises Ordinance, 1979, praying for readmission and restoration of the appeal. It was inter alia pleaded in the affidavit sworn by the learned counsel himself that on 9‑8‑1986 he had made an application under section 21(3) of the aforesaid Ordinance of 1979 before this Court and on 24‑8‑1986 an order for issuance of notice to the respondent had been passed and thereafter the case had been adjourned by the office to 18‑9‑1986. However, in the meanwhile the case came up for regular hearing before the court on 31‑8‑1986 and was dismissed as aforesaid. In view of the circumstances it was pleaded by the learned counsel that he remained under a bona fide impression that the matter would not be fixed for regular hearing as such the matter escaped his notice and was consequently dismissed for non‑prosecution. This application came up for orders before the Court on 18‑9‑1986 when once again the appellant and his counsel were called absent at 11‑10 a.m. and the application was also dismissed for non‑prosecution. Thereafter, another application (C.M.A. No. 1589/86), was filed praying for restoration of the main appeal which had been dismissed on 31‑6‑1986 but no application for restoration of C . M . A . No. 1531 / 86 was filed. Mr. Abdul Aziz learned advocate for the appellant once against filed his own affidavit inter alia pleading that on 18‑9‑1986 he was late by a few minutes and in the meanwhile, the matter was called and dismissed for non‑prosecution. On 4‑11‑1986 Mr. Abdul Aziz filed an application (C . M . A . No. 2053 / 86) on behalf of the appellant requesting for making amendment in C.M.A No. 1589 of 1986. Again on 2‑12‑1986 another application (C.M.A. No. 3070/86) was filed with the same prayer as in C.M.A. No. 1589/80.

It may be pointed out at the very outset that Mr. Mohammad Sharif, learned counsel now appearing on behalf of the appellant, did not press C.M.A. No. 1589/86 and C.M.A. 2053/86, but pressed C.M.A. No. 3070/86 only.

Mr. Zafar Hadi Shah, learned counsel for the respondent has vehemently opposed the application as according to him the same is not only incompetent but untenable at the same time. As to the maintainability of the application the learned counsel has raised a two‑fold objection; firstly, that without restoration of C.M.A. No. 1531/86, the application is not maintainable and secondly that even if otherwise maintainable the application is miserably timebarred. The period of limitation, according to the learned counsel, for filing application for readmission of an appeal is governed by Article 168 of the Limitation Act which provides for a period of thirty days to be computed from the date of the dismissal of the appeal. Reliance was placed on Yousuf v. Mst. Rabia 1985 S C M R 1066 wherein it was held that hearing of an appeal under the Sind Rented Premises Ordinance, 1979 was to be governed by the same procedure as provided by the Code of Civil Procedure for hearing and disposal of Civil appeals. Besides that, reliance was also placed on the judgment of a Single Judge of this Court in Dr. Manzur Ahmad v. Ahmad Ali Siddiqui 1983 C L C 2072, wherein it was held that application for readmission of appeals filed against the orders of Rent Controllers would be governed by Article 168 of the Limitation Act. However, my learned brother, Saeeduzzaman Siddiqui, J. in another case, reported as Yousuf v. Fazal Karim 1983 C L C 2219 has held that since the provisions of the Limitation Act contained in section 29 (2) (a) would be applicable to appeals filed under the Sind Rented Premises Ordinance, an application under Order XLI, Rule 19 for readmission of such appeal cannot be governed by Article 168 of the Limitation Act. Reliance was placed by him on Mst. Afzal Begum v. Y.M.C.A. P L D 1979 SC 18 wherein the Supreme Court while considering the applicability of Article 169 of the Limitation Act to applications for rehearing of appeals decided ex parte under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 has held that this Article does not apply to such applications and the same would be governed by Article 181.

Turning to the first objection of Mr. Zafar Hadi Shah; that the application is not competent, since no attempt was made by the appellant for restoration of C.M.A. No. 1531/86, which was the first application made for restoration of the appeal, this contention, in my opinion, can only be forceful if the present application is held to be time‑barred. But if the application is held to be within time, then in my opinion, the same can be filed without first seeking the restoration of C.M.A. No. 1531/86. Reference in this respect may be made to a case reported in A I R 1958 HP 9, wherein it was held that when an application to set aside dismissal of a suit was itself dismissed in default two remedies would be open to the plaintiff. He could either go in appeal against the order dismissing the application under Order IX, Rule 9, C.P.C. or he could file another application under Order IX, Rule 9 provided that the same was done within the period of limitation prescribed by the Limitation Act. In another case reported in A I R 1923 Pat. 514, it was held that if one appeal was dismissed for default, a fresh one was maintainable if the same was not time‑barred. Since there is no provision in the Code of Civil Procedure barring filing of a second application for rehearing of an appeal after the first is dismissed for non‑prosecution. I cannot agree with Mr. Zafar Hadi Shah that this application without restoration of C . M . A . No. 1531/86 was not competent.

Turning next to the second objection raised by Mr. Zafar Hadi Shah; that the present application would be governed by Article 168 of the Limitation Act, it may be pointed out Article 168 provides for a period of thirty days for readmission of an appeal dismissed for want of prosecution which according to column 3 in the Schedule to the Limitation Act is be reckoned from the date of the dismissal of the appeal. Although there is nothing in Article 168 itself to point out that the same only applies to an application for readmission of an appeal filed against a decree passed by the Civil Court, but Article 169, which is the next Article and which governs applications for rehearing of appeals heard ex parte shows that the appeals contemplated therein are only such appeals which have been filed against decrees passed by Civil Courts. However, I have no doubt in my mind that Article 168 also applies to applications for readmission of appeals filed against decrees passed by Civil Courts and is not applicable to proceedings under the Sind Rented Premises Ordinance as was held in Yousuf v. Abdul Karim, just referred to by me above. In the case of Mst. Afzal Begum and others v. Y.M.C.A. which has been relied upon in this judgment, the Hon'ble Supreme Court has held that since Article 169 of the Limitation Act was not applicable to an application for setting aside an ex parte order passed under the. provisions of the Urban Rent Restriction Ordinance, 1959, any such application would therefore, be governed by Article 181 of the Limitation Act. Consequently, Mr. Zafar Hadi Shah does not appear to be correct by contending that the present application is to be governed by art. 168 of the Limitation Act. Finding myself in respectful agreement with the views expressed by Saeeduzzaman Siddiqui, J. in Yousuf v. Fazal Karim. I hold that the application is governed by Article 181 and it is, therefore within time. The case referred to by Mr. Zafar Hadi Shah which is reported in 1985 S C M R 1066, no doubt, shows that the procedure provided by the C . P . C . for appeals is also applicable to appeals filed under the Rent Ordinance, but this case is not attracted to the facts of the present case since the question of limitation was not raised therein. The argument of Mr. Zafar Hadi Shah is therefore, repelled.

Turning finally to the merits of the present case, Mr. Abdul Aziz, the appellant's counsel has stated in his affidavit that he was misled by the fact that the application made on behalf of the appellant for additional evidence was fixed before the Deputy Registrar (Judicial) on 16‑9‑1986, consequently., he did not appear before the Court on 31‑8‑1981 under a bona fide belief thinking that the matter would not be posted for regular hearing before such date. Mr. Zafar Hadi Shah has however pointed out that matters are listed first in the weekly cause list and again in the daily cause list and therefore, it was the counsel's duty to read the cause lists and any failure on his part to read the same amounted to gross negligence on his part. Although to some extent Mr. Zafar Hadi Shah is correct as the counsel has not stated in his affidavit that he failed to read the two cause lists or that he had read them but in spite of that he missed the case. Be that as it may, but similar lapses on the part of the counsel are always possible and such lapses are still condoned, depending upon the circumstances of each case. In the present case, in my opinion, in view of the circumstances stated it is possible that the appellant's counsel was misled by the fact that the case was fixed before the learned Registrar of this Court and consequently the same would not be posted for regular hearing on 31‑8‑1986. The mistake made by the counsel could be bona fide. As to the contention of Mr. Zafar Hadi Shah that cases are listed in the weekly and daily cause lists, and therefore Mr. Abdul Aziz is guilty of gross negligence, it was stated at the bar by Mr. Mohammed Sharif that Mr Abdul Aziz does not have many cases in the High Court and since the case was not expected by him to be posted for regular hearing. Mr. Aziz did not look into the cause list. Under such circumstances, I, would not like to penalize the appellant for this small lapse on the part of his counsel, when lapses of even more serious nature are condoned by Courts. At the most the matter can be settled by saddling the appellant with heavy costs.

I, consequently, allow this application and readmit the appeal for regular hearing but the same would be subject to the payment of costs of Rs.1,000 to the counsel for the respondent.

C.M.A. No. 1589/86 and C.M.A. No. 2053/86 are dismissed as not pressed.

S . Q . / L‑4 / K Application allowed‑

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