SAHIB KHAN, J.--- This Civil Second Appeal has been directed against the impugned judgment/order dated 12-12-2006, passed by the Additional District Judge, Gilgit, in Civil Appeal No, 47 of 2006, whereby he while upholding order, dated 31-3-2006 passed by Civil Judge 1st Class Hunza camp Gilgit dismissed the appeal of appellants.
2. The briefly stated facts of the case are that the present appellant instituted a civil suit in the Court of Civil Judge 1st Class, Hunza camp Gilgit. This case was fixed for 8-12-2005, for evidence of the plaintiffs, but due to non-appearance of plaintiffs on the date, the learned trial Judge dismissed the suit in default. Plaintiffs filed Civil Miscellaneous No,1 of 2006 for restoration of suit on 22-2-2006.It transpires from the record that the trial Judge vide his order, dated 31-3-2006, dismissed the application under Order IX, rule 9 read with section 151 of C.P.C. Finding it to be time barred. This order was challenged through first appeal by the appellants, which was dismissed by the. Additional District Judge, Gilgit, vide impugned order above, hence appeal in hand.
3. I have heard the learned counsel for the parties and gone through the record of the case.
4. The learned counsel for appellants submits that appellants were present in Court vicinity on the fixed date with their witnesses, however, at the movement when the case was called appellants had gone to answer a natural call and could not appear before the Court. He prayed for restoration of suit to meet the ends of justice. On the point of limitation, the learned counsel was of the view that Article 181 of Limitation Act is applicable in the case instead of Article 163 of Limitation Act, 1908.
5. On the other side, learned counsel for respondent resisted the argument with the contention that the suit was dismissed on adjourned date of hearing and application for restoration of suit has been filed after lapse of 75 days of dismissal, but no application for condonation of delay has been filed with the application under Order IX, rule 9 read with section 151 of C.P.C. Therefore, the restoration application was time-barred under Article 163 of Limitation Act, he prayed for dismissal of appeal in hand being meritless.
6. The first and relevant matter of controversy in the present litigation is that which one Article of Limitation Act will attract in the present case, so to make the discussion convenient, I deem it proper to reproduce Articles 163 and 181 of the Limitation Act, which read as follows:-- 163 "By a plaintiff-for an order to set aside a dismissal for default of appearance or failure to pay costs of service of process or to furnishThirty days The date of Dismissal 181 "Application for which no period of Limitation is provided elsewhere in this Schedule or by Section 48 of the Code of Civil Procedure 1908".Three Years When the right to apply accures.
7. It is crystal clear from the above reproduced Article 181, that it is a residuary Article and applies to all matters in respect of which no period of limitation is provided. In, the absence of a definite Article provided under Limitation Act, 1908 with regard to any matter, limitation would be governed by the provision of residuary Article 181 or by section 48 of the C.P.C, the provisions of Article 181 of the Limitation Act, 1908, would be attracted, which has provided three years period of limitation. It is evident from the bare reading of the Article 181 of Act of 1908, and considering the facts of the case, it is very much clear that Article 181 is not attracted to the stated facts of the case; Article 181 contemplates a position where no period of limitation is prescribed in the schedule of the Act 1908, or under section 48 of Code of Civil Procedure or for setting aside an ex parte order was found ab A initio void for lack of jurisdiction on the part of the Court passing decree/order. But it is not at all submitted by the counsel that Court has passed the dismissal order dated 8-12-2005 lacking any legal infirmity due to want of jurisdiction. The facts of the case and provision of law is clear that Article 181 does not attract in the present case. It is, apparent that Article 163 only attracts on the basis of given facts of the present case, with the simple reasons that period for restoration of suit 'dismissed due to non-prosecution can only be restored under Article 163 specifically provided provision in the schedule of Limitation Act, 1908.
8. Coming to the second and final aspect of the case i.e, law favours adjudication on merits or technicalities should not defeat the ends of justice. To overcome above points when considered the facts of the case it reflects gross negligent attitude on the part of the plaintiffs/appellants, who failed to appear on the adjourned date of hearing and filed application under Order IX, rule 9, C.P.C.
For restoration of their suit within stipulated period of limitation, furthermore, if they were prevented by any sufficient cause from filing of restoration application within limitation, should have sought pardon of limitation invoking relevant provision of Limitation Act from the trial Court, but not.
Therefore, answer to above principle of equity is, that whoever sleeps over his right is not entitled to relief, beyond period C prescribed by law. As the Limitation Act extinguished the remedy and not the right.
9. Although an application under sections 5/14 of Limitation Act has been attached with the appeal in hand but the sole cause given in that application for not filing the restoration application within limitation is contended "blockade of road from Hunza to Gilgit". It is astonishing for me that the appellants are seeking condonation of delay on the pretext of blockade of a Highway in between Gilgit and Hunza for such long period, but without any documentary proof, as required by law. A party who seeks condonation of delay in instituting proceedings under section 5 of the Limitation Act is bound to offer plausible explanation constituting sufficient cause in approaching the court, explaining the delay of each day which is sought to be condoned.
10. Although it is question mark that whether a second appeal lies in the matter in hand, I feel it a futile exercise to discuss as the appeal otherwise having any weight.
11. I am therefore, clear in my mind that impugned orders, dated 12-12-2006 passed by the Additional District Judge, Gilgit and dated 31-3-2006 passed by the Civil Judge are perfectly legal and have been passed in lawful exercise of their jurisdiction, moreover, do not suffer from any infirmity either in law or equity, hence dismiss this appeal with cost. File be consigned to record.