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Civil Miscellaneous No. 2944/C of 1979 in Letters Patent Appeal No. 123 of 1968, heard on 9th December, 1986.

‑‑‑O. XXII, R. 9(2)‑‑Application for setting aside order of High Court dismissing appeal for non‑prosecution‑‑Appeal which was filed by petitioner's deceased husband was dismissed by High Court on statement of his counsel that since after death of his client (appellant) long ago his legal representatives did not take any interest in prosecution of appeal and that he had no instructions from them‑‑Said statement of counsel also supported by petitioner herself‑‑Even otherwise application for recall of order not filed by petitioner within time and same also was not accompanied by an application for condonation of delay‑‑Application dismissed in circumstances.

Ch. Masood Zakariya for Applicant.

Talib H. Rizvi for Respondents.

Date of hearing: 9th December, 1986.

.‑‑--Shamas‑ud‑Din, late husband of the present applicant filed L.P.A. No. 123 of 1968. When it came up for hearing on 29‑11‑1978 the following order was passed:‑--

"Learned counsel for the appellant states that his client died long ago and that his legal representatives did not take any interest in the prosecution of the appeal. He also states that lie has no instructions from the legal representatives of the appellant. Therefore, this appeal is dismissed for non‑prosecution. In so far as the conduct of the legal representatives of the appellant is concerned. Learned counsel is not at fault. There shall be no order as to costs."

2. Mst. Niazan widow of Shamasud Din, deceased appellant, filed the aforetitled application under Order XXII Rule 9(2) read with section 151, C . P . C . for recall of the aforesaid order. The application was filed on 18‑3‑1979 but it was returned with objections and refiled on 24‑3‑1979. It was, again, returned with the objections and was refiled on 9‑5‑1979. Objections were still there and finally the application removing all the objections was filed on 9‑7‑1979. It is stated in the application that the applicant was a Pardanashin lady with minor children and her husband was a member of Tablighi Jamaat who would remain away for months together. He never informed the applicant or his father that he had instituted any suit or appeal. The applicant came to know of the dismissal of the appeal on 12‑3‑1979 from one Sher Muhammad, a friend of the applicant's deceased husband. Thereafter, the applicant's father‑in‑law obtained a death certificate of Shamas‑ud‑Din on 13‑3‑1979 and sent the relevant papers to the learned counsel on 14‑3‑1979. It was stated that although the application was apparently barred by time but if the starting point be taken when the applicant got the knowledge for the first time of the pendency and the dismissal of appeal filed by the late husband, then the application will be within limitation. No application for condonation of delay has been filed alongwith the petition in hand.

3. Learned counsel for the applicant has vehemently contended that the applicant did not come to know about the pendency of the appeal filed by her deceased husband and as soon as she came to know 'she had filed the present application.

4. Learned counsel for the respondents has submitted that even after knowledge there is long delay in competently filing the afore‑titled application and that too without any application for condonation of delay. He has also submitted that the respondent No.l had purchased an area, measuring 2 Marlas now in dispute for which he had obtained a decree on 13‑9‑1965. This was sought to be challenged by Shamas‑ud‑Din through a civil suit filed on 7‑7‑1966. The suit was dismissed on 1‑3‑1967. So also his appeal on 14‑7‑1967. Shamas‑ud‑Din then filed R . S . A . No. 810 of 1967 which was dismissed on 11‑12‑1967. However, the learned Judge granted on 20‑2‑1968 a certificate to file an appeal under Letters Patent. L.P.A. itself was filed on 12‑4‑1968. The appeal was barred by time. No application for condonation of delay was filed with it. However, an application for condonation of delay was filed much later on 27‑5‑1968. Further, according to the case of Shamas‑ud‑Din himself, he had purchased land measuring 1 Kanal from one Noor Ahmad. He had transferred 1 Marla earlier and later on his heirs had sold an area measuring 19 Marlas. Therefore, there would be no area vesting in the deceased appellant Shamas‑ud‑Din and no claim could be laid to any other land than the one which he had purchased and transferred or was sold.

5. We have heard the learned counsel for the parties and perused the record at length. In view of the fact that the learned counsel fort the original appellant stated that he had no instructions, the appeal was dismissed for non‑prosecution. It is nobody's case that the learned counsel for the appellant was not authorised to make the statement. He in fact had made the statement which is supported by the applicants own application that not knowing herself, no instructions had been imparted to the counsel. Question of recall of the order would hardly arise. Moreover, whenever the applicant came to know of the order, the application for recall was not filed within time. It was barred by time. It was not even accompanied by an application for condonation of delay. Without application and in view of the objection of the learned counsel for the respondents, there is no question of condoning the delay.

6. In view of all the circumstances mentioned above, this application has no force or merits. It is, accordingly, dismissed with costs.

M.Y.H./687/L Petition: dismissed.

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