' M. JAVED BUTTAR, J.--- On 24-12-2003 appellant filed a suit for specific performance of an agreement to sell dated 20-12-2002 against his sister Mst. Shagufta Sharif who died during the pendency of the suit and is now represented by her son Fahad (respondent No,1). During the progress of the suit, ex parte proceedings were ordered against her and the case was being adjourned for recording evidence of the appellant but the appellant became absent and the suit was dismissed for non-prosecution on 13-12-2006. On 11-10-2007, he filed an application for restoration of suit along with an application for condonation of delay. Both the applications were contested and were dismissed by the learned trial Court on 17-1-2008. However, Revision Petition.
Filed by the appellant, was allowed by the Honourable Additional District Judge, Sheikhupura, on 29-3-2008. Writ Petition No,6627 of 2008 instituted by respondent No,1 was allowed by an Honourable Judge in Chambers of Lahore High Court, Lahore, on 29-10-2008. Order dated 29-3- 2008, passed by Honourable Additional District Judge was declared to be without lawful authority and was set aside and the order dated 17-1-2008, passed by the trial Court, dismissing the application for restoration of the suit, was restored. Hence this directs appeal.
2. We have heard the learned counsel for the appellant, learned counsel for respondent No,1 and have also seen the available record with their able assistance.
3. Learned counsel for the appellant has submitted that the Honourable Additional District Judge could have restored the suit under section 151, C.P.C., that it was an adjourned date of hearing on which the suit was dismissed for non-prosecution, therefore, it will be deemed that the order of dismissal for non-prosecution was passed under Order XVII, rule 2, C.P.C. And not under Order IX, rule 3, C.P.C. And therefore, the limitation period for restoration of application is governed by Article 181 of the Limitation Act which is three years and not under Article 163 of the Limitation Act which is thirty days, that the High Court wrongly interfered in the writ jurisdiction, that the appellant has been knocked out purely on technical ground, that the pleadings are to be liberally construed and law favours decision on merits. In support of his contentions the learned counsel has placed his reliance on Hassomal Tillumal v. Ghulam Nabishah AIR (36) 1949 Sind 26, Messrs Rehman Weaving Factory (Regd.), Bahawalnagar v. Industrial Development Bank of Pakistan and Punjab Small Industries Corporation, Lahore PLD 1981 SC 21 and Yousaf Raza Hussain v. The IVth Additional District Judge South, Karachi and others 1987 M LD 2989 (Karachi).
4. On the other hand, learned counsel representing respondent No,1, while vehemently opposing the application, has submitted that the appellant and his deceased sister were living in the same house which is apparent from the address given on the application for restoration and the appellant was actually trying to get an ex parte decree against his sister on the basis of a false document, that the trial Court, the revisional Court as well as the High Court have concurrently found that no cause had been shown by the appellant for his absence or the absence of his counsel when the suit was dismissed for non-prosecution and no ground for condonation of delay had been made out and since after recording this finding the Honourable Additional District Judge had interfered in revisional jurisdiction without disclosing any reason, the High Court correctly interfered in the constitutional jurisdiction and this Court would not interfere in the concurrent findings recorded by all the three Courts below and that the appellant has failed to make out any ground for equitable consideration.
5. We have given our anxious consideration to the, entire facts and circumstances of the case. Plain reading of Order XVII, rule 2, C.P.C. Shows that in such a situation the Court has an option to proceed under Order IX of C.P.C. And in the instant case, although it is not written in the order dated 13-12-2006, whereby the suit was dismissed for non-prosecution, that it was being dismissed under Order IX, rule 3, C.P.C. But it is apparent that the Honourable trial Judge proceeded under Order IX, rule 3, C.P.C., therefore, Article 181 of the Limitation Act was not attracted and the Courts below correctly applied Article 163 of the Limitation Act while considering the appellant's application for condonation of delay in moving the application for restoration of the suit, which was grossly barred by time.
' Furthermore, we have gone through the application moved by the appellant for restoration of the suit. No cause has been shown for the absence of appellant and his counsel when the suit was dismissed for non-prosecution. It has been vaguely asserted in the said application that at that time the appellant was in England but nothing has been said about the absence of his counsel.
Even otherwise, it was admitted before the Honourable Judge of the High Court, during the course of hearing of writ petition that the appellant had returned to Pakistan in December, 2006. In these circumstances, the Courts below correctly concluded that no cause had been shown for the absence of the appellant or his counsel on 13-12-2006, which was a date of hearing fixed for recording of evidence of the appellant.
' Additionally, no ground has been made out for condoning the delay in filing of the application for restoration of the suit. Even otherwise, the issue of limitation lost its importance when the appellant failed to show any cause for his absence and the absence of his counsel on the relevant date. In this background, the Court was competent to dismiss the suit for non-prosecution and competently and correctly refused to restore the suit. Even otherwise, the Court is not bound to restore the suit merely because the restoration application is within time.
5. (sic) We have also noticed that the Honourable Additional District Judge affirmed the findings of learned trial Court that no cause had been shown for absence and for condonation of delay in filing of the application and yet the Honourable Additional District Judge restored the suit. In this view of the matter, in our opinion, the Honourable Judge of the Lahore High Court correctly held that "after so holding the learned Additional District Judge had no jurisdiction to restore the suit" and accordingly declared the order of Honourable Additional District Judge as wholly without jurisdiction, therefore, argument of the learned counsel for the appellant that the High Court in the exercise of its constitutional jurisdiction could not have interfered, has no force because under the circumstances the Honourable Additional District Judge had no jurisdiction to restore the suit.
6. We have considered the overall circumstances of the case and are of the view that no ground has been made out in favour of the appellant for equitable consideration. In view of the above mentioned, we are further of the view that the judgments relied upon by the learned counsel for the appellant are distinguishable and are not applicable to the facts and circumstances of the present case.
' In view of the above mentioned, we find no merit in this appeal which is dismissed leaving the parties to bear their own costs.