C.M.No,1-C-2008 ' IJAZ UL AHSAN, J.--- This is an application under Order IX, Rule 9, C.P.C. Read with section 151, C.P.C.
For recalling of order dated 7-9-2005 and deciding the civil revision afresh on merits.
2. The civil revision was filed in October, 2001. The matter lingered on for the next four years without much progress. It was fixed for hearing on 7-9-2005 when Ch. Shahid Javed Warriach. Advocate appeared along with the respondent Muhammad Hussain. On the said date, neither the petitioner nor his counsel appeared, in consequence of which the petition was dismissed on 7-9-2005. About two years and seven months later, this application was filed on 14-4-2008 for recalling the order of dismissal and decision of the case on merits.
3. The learned counsel for the applicant/petitioner submits that in entertaining a revision petition, this Court exercises its supervisory jurisdiction to satisfy itself as to whether jurisdiction has been exercised by the learned subordinate courts properly and whether proceedings before the learned subordinate courts suffer from any illegality or irregularity. He points out that after filing a revision petition the matter rests between the revisional and subordinate courts and once a revision petition has been entertained, it has to be disposed of on merits and cannot be dismissed in default. In this regard, the learned counsel has placed reliance on PLD 2000 SC 820.
The learned counsel has frankly conceded that there are subsequent judgments of the Hon'ble Supreme Court of Pakistan in which a different view has been taken. He, however, submits that in view of divergence of opinion, the Hon'ble Supreme Court of Pakistan has granted leave inter alia to examine the question whether provisions of Article 181 of the Limitation Act can be made applicable in case of an application moved for restoration of a civil revision petition which was dismissed in default as no specific period of limitation has been provided in the schedule of the Limitation Act or in section 48 of C.P.C.
4. The learned counsel appearing on behalf of the respondent has vehemently opposed the application. He submits that the application for restoration of the petition is admittedly barred by time. No application for condonation of delay has been filed under section 5 of the Limitation Act and the reason disclosed in the application under Order IX, Rule 9, C.P.C. For moving the application after lapse of two years and 09 months does not constitute sufficient cause for condonation of delay. He adds that the petitioner has admittedly been indolent and negligent and in these circumstances allowing the application would amount to taking away a valuable right which has accrued in favour of the respondent and giving a premium to the petitioner for his negligence and indolence despite the fact that there are concurrent findings recorded by the learned subordinate courts against him.
5. I have heard the learned counsel for the parties and have also examined the record. The only reason given in the application for restoration of the petition which was filed about two years and 7 months after the dismissal of the petition is that no cause list was received in the office of the learned counsel for the petitioner. In this regard, reference can usefully be made to 2002 SCM R 1405. In the said judgment of the Hon'ble Supreme Court of Pakistan, it was held as follows:--- "The revision petition was dismissed for non-prosecution on 11-11-1996 but the application for restoration of the same was made after two years and 8 months. The petitioners have singularly failed to explain delay of each day which they were obliged to do. The plea that a copy of the cause list was not supplied to the learned counsel for the petitioners hardly constitutes a valid ground for condonation of delay in the absence of an affidavit of the person concerned. Besides, the petitioners failed to keep contact with their counsel and pursue the petition diligently.
Consequently, the petition is dismissed and leave refused."
6. As far as the applicability of Article 181 of the Limitation Act is concerned, reference may be made to 2004 SCM R 615 in which this question was examined and the Hon'ble Supreme Court of Pakistan was pleased to hold as follows:--- "We have gone through Article 181 of the Limitation Act with the assistance of the learned counsel for the petitioners. Column 3 of the said Article would indicate that the same is applicable where a right exists to make an application and the three years' period prescribed for making such an application commences from the time when such right to make an application had accrued.
When asked about the provision under which a person had a right to make an application seeking restoration of a revision petition which had been dismissed for non-prosecution, the learned counsel could not refer us to any such provision. He could only rely upon section 151 of the C. P.C.
But the same does not confer any right on any person to make an application of any sort including an application for restoration of revision petition dismissed for non-prosecution. To elaborate this situation reference may be made to the provisions of Order IX, Rule 9, Order LX, Rule 13 and Order XLI, Rule 19 of the C. P.C. Which confer a right on an aggrieved person to pray for restoration of the suit or to pray for setting aside an ex parte decree or to pray for re-admission of an appeal dismissed in default but no such provision has been made vis-a-vis revision petition filed under section 115, C.P.C. We, therefore, find that Article 181 of the Limitation Act was not attracted to the application in question filed by the petitioners before the Lahore High Court."
7. In an earlier judgment reported as 2000 SCMR 127, an application for restoration was filed about 4 months after the revision petition was dismissed for non-prosecution. The apex court came to the conclusion that the application for restoration of the revision petition was admittedly barred by time. No application for condonation of delay was filed under section 5 of the Limitation Act.
Therefore, the learned Single Judge was justified in dismissing the application as barred by time observing that in the absence of any application seeking condonation of delay, the same could not be condoned.
8. Although the learned counsel for the petitioner has argued that the Hon'ble Supreme Court of Pakistan has granted leave to examine the question of applicability of Article 181 to the application for restoration of the civil revision petitions, which have been dismissed in default, he has frankly conceded that the matter has not finally been decided and no final judgment has been announced. It is a settled law that a leave granting order does not operate as a law laid down on the subject. Consequently, the law applicable to the present application would be the dictum laid down in 2004 SCM R 615.
9. While respectfully placing reliance on the aforesaid judgment, I hold that the instant application is barred by time. Further, neither an application for condonation of delay under section 5 of the Limitation Act has been filed nor does this application disclose a reasonable or sufficient cause for condonation of delay. Non-supply of copy of the cause list to the petitioner's counsel does not constitute a valid ground for condonation of delay as held by the apex Court in the afore-noted judgment.
10. For the foregoing reasons, I do not find any merit in this application. It is accordingly dismissed.