C.M. No,207-C of 2004 ' MIAN HAMID FAROOQ, J.---Applicant, through the filing of the present application, on 13-3-2004, seeks re-admission of his appeal, which was dismissed for non-prosecution on 11-4-2001, in the absence of both the parties.
2. The learned counsel, in support of this application, has submitted that as the list was not provided to the learned counsel of the applicant, therefore, the applicant as well as his learned counsel were unaware about the fixation of the case and, thus, unable to appear before the Court.
According to the learned counsel this is a sufficient cause for the re-admission of the appeal.
3. When the learned counsel was questioned as to how the application in hand, which has been filed after the lapse of nearly three years, is within time, the learned counsel while relying upon Fazil Khan v. Muhammad Azim and others (PLD 1954 Baluchistan 21) has submitted that the limitation for filing such an application is three years as per Article 181 of the Limitation Act.
4. Admittedly, applicant's appeal was dismissed, on 11-4-2001, for non-prosecution, under the provisions of the Order XLI, rule 17(1) of Code of Civil Procedure. Article 168 of the Limitation Act provides a period of 30 days for the re-admission of the appeal dismissed for want of prosecution from the date of the dismissal of the appeal. To my mind, as the appeal was dismissed for non- prosecution under Order XLI, rule 17(1), C.P.C., therefore, Article 168 of the Limitation Act would be applicable. This view is fortified by the judgment reported as Sindh Industrial Trading Estate v. West Pakistan Water and Power Development Authority (PLD 1991 SC 250), wherein it has been held that the provisions of Article 168 of Limitation Act, 1908 are applicable for the restoration of he appeal dismissed under Order XLI, rule 17(1), C.P.C. It has been held in Haji Ghulam Sarwar v. Daya Ram '(1975 SCM R 179) that under Article 168 of Limitation Act, time for readmission of appeal dismissed for want of prosecution begins to run from the date of the dismissal and not from the date of the knowledge of the dismissal.
5. The applicant has not made out a case, either in his application or during the arguments, that the order of dismissal of appeal is nullity in the eyes of law.
In the above perspective, I am of the considered view that the application in hand, which has been filed after the lapse of two years and eleven months, from the date of dismissal of appeal, is clearly barred by time in view of Article 168 of the Limitation Act as well as the law declared, as noted above. It is, pertinent to mention here that although under the provisions of Order XLI, rule 19(2) of the Code of Civil Procedure, provisions of section 5 of the Limitation Act have been made applicable to the application for the re-admission of the appeal dismissed under Order XLI, rule 17(1), C.P.C., yet the applicant has not filed any such-like application.
' As regards the case of Fazil Khan (supra), relied upon by the learned counsel, is concerned, the same has distinguishing facts inasmuch as it was held that the application for the restoration of the application for re-admission of the appeal can be filed within a period of three years, as there is no specific provision of Limitation Act dealing with the applications of this nature, therefore, it was held that Article 181 of the Limitation Act is applicable. In view whereof, coupled with the law declared, as noted above, the judgment of Fazil Khan (supra) is of no avail to the applicant.
' The resume of the above discussion is that the application in hand is grossly barred by time and deserves to be dismissed on this short ground alone.
6. Even otherwise, the applicant has got no case on merits. The only grounds, as narrated in the instant application and raised by the learned counsel, is that the list was not furnished to the learned counsel of the applicant and, therefore, he could not appear in this Court. The said ground can hardly be termed as "sufficient case" preventing the applicant or his learned counsel from appearing in the appeal and that too for almost three years. The cause of absence of the applicant on the date of the dismissal of the appeal and thereafter, reasons for deep slumber have not been mentioned in the application, inasmuch as the application is not supported by the affidavit of the applicant. It has been held in Zulfiqar Ali v. Lal Din and another (1974 SCM R 162) that mere engagement of a counsel does not absolve litigant of all his responsibilities as the party as well as his learned counsel both are responsible to see that the causes are properly and diligently prosecuted. Additionally, it has not been explained in the application in hand that the applicant and his learned counsel remained vigilant about the fixation of the case. It is strange to note that the applicant and his learned counsel did not bother to enquire from the office about the fixation of the case for three long years. The absence of the applicant and his learned counsel appears to be deliberate and a result of negligence. "No sufficient cause" within the parameters of law has been shown for the absence of the applicant and his learned counsel, therefore, I see no merits in this application.
7. Upshot of the above discussion is that the present application is grossly barred by time as well as devoid of merits, hence dismissed in limine.
C.M. No,2-C of 2004 ' With the dismissal of the parent application (C.M. No,207-C of 2004), this application has become infructuous. Dismissed as such. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.