' The appellant filed R.F.A. No,202 of 1995, against the judgment and decree of the trial Court, which was pending before this Court and was dismissed for non-prosecution on 5-6-2002. The appellant moved an application for restoration of the said appeal on 28-11-2002, alongwith an application under section 5 of the Limitation Act. Both these applications were pending, when on account of amendment in law, the same were transferred to the learned District Judge, Sargodha for disposal.
The matter was entrusted to the learned Additional District Judge, who through the impugned order, has dismissed both the applications, holding that, no sufficient cause has been made out; besides that section 5 of the Limitation Act, is not applicable to the application seeking restoration of appeal.
2. It is stated by the learned counsel for the appellant that, the learned Court below has relied upon the cases pertaining to the year before 1990, whereas the amendment has been brought in Order 41, rule 19, vide Act IV of 1990, by virtue of which, the provisions of section 5, have become applicable to the application seeking restoration; moreover, there was no reply or counter affidavit to the application and thus, in such circumstances, sufficient cause for delay in filing the application was in fact conceded by the respondent's side. On merits, it is submitted that the cause list had not been received by the counsel for the appellant and this is so mentioned in the application for restoration, again this has not been controverted through reply by the respondent.
3. I have heard the learned counsel for the parties, perused the record and find that, the appellant had made out a sufficient cause for restoration of the appeal, as the cause list had not been received by the learned counsel. Moreover, according to the amendment of law cited above, the change has been brought, by virtue whereof, section 5 of the Limitation Act, has been made applicable. Resultantly, when the applications had not been controverted by the respondent's side, the same should have been allowed.
' In the light of above, by setting aside the impugned order, the applications under section 5 of the Limitation Act as also restoration of the appeal, filed by the appellant, are accepted and the appeal of the appellant shall be deemed to be restored to its original number. The learned Court below is directed to decide the same in accordance with law. This appeal is accordingly allowed.
F.A.O. Accepted.