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Civil Revision No.1600 of 1983, decided on 15th September, 1987.

---S.115 read with S.96 and O.XXXIX, Rr.1 & 2 Limitation Act (IX of 1908), S.5--Declaratory suit in respect of village site--Trial Court, on application of plaintiff-respondent for temporary relief, passing order restraining defendants-petitioners from dispossessing plaintiff respondent--Defendants-petitioners later having been found to have dispossessed plaintiff-respondent from suit property in violation of temporary injunction, directed to restore possession to her--Appeal against order of Trial Court dismissed by District Judge on short ground that the same was time-barred--Application for condonation of delay filed by petitioners with memorandum of appeal not finding mention in impugned judgment--Original records of Lower Appellate Court transpiring that even separately District Judge had not passed any order regarding disposal of such application which was obligatory for him before coming to conclusion that appeal of petitioners was time-barred--Impugned judgment, being not legally sustainable, revision petition was allowed and case was remanded to Lower Appellate Court for fresh decision after disposing of petitioner's application for condonation of delay in accordance with law.

Ch.M. Khalil for Petitioners.

Tahir Qureshi for Respondent.

Date of hearing: 15th September, 1987.

Mst.Khurshid Bibi, the respondent herein, filed a declaratory suit against the petitioners in respect of a village site. Alongwith the plaint she also filed an application for temporary injunction. On her application for temporary relief, the petitioners were restrained from dispossessing the respondent. The order in this behalf was made on 14-4-1981 by the learned trial Court. viz. a Civil Judge, Nankana Sahib, District Sheikhupura.

2. On 23-4-1981, however, Mst. Khurshid Bibi respondent moved an application against the petitioners before the learned trial Court alleging that in violation of the temporary injunction dated 14-4-1981, the petitioners have forcibly dispossessed the respondent from the suit property and have also deprived her of her household effects. The application was, of course, resisted by the petitioners, but the learned trial Court after recording the parties' evidence decided the application on 18-1-1983. The learned Court came to the conclusion that the petitioners were liable for violating the temporary injunction issued by the said learned Court and they that have also deprived the respondent of her household effects. Consequently, the petitioners were directed to restore the possession of the suit property as also the household effects to the respondent. One of the petitioners, namely, Said Shah, petitioner No.1 herein, was also burdened with special costs, amounting to Rs.500.

3. The order dated 18-1-1983 passed by the learned Civil Judge, Nankana Sahib was called in question by way of an appeal before a learned Additional District Judge, Sheikhupura. The learned appellate Court dismissed the appeal on 10-10-1983, on the short ground that the same was time-barred.

4. The judgment dated 10-10-1983, passed by the learned Additional District Judge, Sheikhupura, has been sought to be revised through the under consideration civil revision.

5. It has been noticed that along with the memorandum of appeal, the petitioners also filed an application before the learned lower appellate Court under section 5 of the Limitation Act seeking condonation of delay. It has been contended in the said application that the learned trial Court did not pronounce the order in Court on 18-1-1983, whereby the respondent's application for contempt of Court was allowed and the petitioners were directed to restore possession of the suit property to her and that they have learnt about the lower Court's order for the first time when proceedings for restoration of possession were initiated against them. It has further been urged in the application for condonation of delay that on 19-2-1983, after having acquired the knowledge regarding order dated 18-1-1983, the petitioners filed an application for obtaining the copy of the said order which was in fact delivered to them on 20-2-1983, although the concerned official of the copying branch has recorded 19-2-1983 as the date of delivery of the copy. On the basis of these contentions two days' delay was sought to be condoned. The contentions raised in the application for condonation of delay have been supported by an affidavit sworn by Said Shah, one of the petitioners.

6. In the impugned judgment whereby the petitioners' appeal has been dismissed on the ground of limitation, the application for condonation of delay filed by the petitioners does not find mention.' Original records of the learned lower appellate Court have also been requisitioned. It transpires from the said records that even separately the learned Additional District Judge has not passed any order regarding disposal of the application for condonation of delay. It was obligatory for the learned lower appellate Court to dispose of the application for condonation of delay before coming to the conclusion that the appeal of the petitioners was time-barred and thus liable to be dismissed.

7. For the foregoing reasons the impugned judgment is not legally sustainable. The under consideration civil revision is accordingly allowed and the case is remanded to the learned lower appellate Court for deciding it afresh after disposing of the application for condonation of delay submitted by the petitioners in accordance with law. There shall be no order as to costs.

S.Q./S-103/L Petition allowed.

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