C.M.
NO. 1-C/2011 RSA No. 106/2005, was fixed for hearing on 9.6.09, when it was adjourned in the presence of the learned counsel for the applicants/ appellants Ch. Ihsan-ul-Haq Bhalli, Advocate for 16.6.09. On the next date, i.e. 16.6.09, nobody appeared on behalf of the applicants/appellants and the RSA was dismissed for non-prosecution.
2. Through the instant CM, which has been moved on 6.7.2011 before this Court vide Diary No. 6180, a prayer has been made for re-admission/restoration of the appeal. Notice was issued on this application to the respondents. They have submitted their reply in order to contest this application.
A preliminary objection has been raised by the learned counsel for the respondents that the application moved by the applicants/appellants for re-admission/restoration of the appeal is barred by time. It is also argued that no sufficient cause for readmission/restoration of the appeal has been stated in the application.
3. The learned counsel for the applicants/appellants contends that it is not disputed that on 9.6.09, the case was adjourned in presence of the learned counsel for the applicants/appellants for 16.6.09, but the learned counsel contends that in the diary of the learned counsel the next date 16.6.09 could not be entered and there was misunderstanding that the case has been adjourned sine die. The learned counsel for the applicants/appellants has stated that the principles of RSA are similar to those of a civil revision and relies upon Mst. Rabia Bibi and others vs. Ghulam Rasool and others (2004 SCM R 394) and Muhammad Sadiq vs. Mst. Bashiran and 9 others (PLD 2000 SC 820) to contend that the civil revision should not be dismissed for non-prosecution. The learned counsel further contends that there was a bonafide mistake in not correctly noting the next date of hearing in the personal diary of the learned counsel for the applicants/appellants and due to that no appearance was made on the next date of hearing. The learned counsel further contends that the applicants/appellants are ready to pay any amount of costs for re-admission/restoration of the RSA.
4. The learned counsel for the contesting Respondents No. 1 and 3 has argued that the RSA was adjourned to a specific date in the presence of the learned counsel for the applicants/petitioners on 9.6.09 for 16.6.09 and the contentions raised by the learned counsel for the applicants/appellants of not correctly noting the next date of hearing in the diary, is not supported by the material available on the record as presented by the learned counsel for the applicants/appellants in CM No. 1-C/2011. It is further argued that the cause list of the instant case was duly published and the copy of the cause list is annexed with the reply in which the names of the learned counsel for the applicants/appellants are reflected. The learned counsel for the respondents further contends that the application moved is barred by time as according to Article 168 of the First Schedule of the Limitation Act, 1908, a period of 30 days has been prescribed for the re-admission or restoration of the appeal. It is next contended that no application under Section 5 of the Limitation Act, 1908 has been submitted for condonation of delay by the applicants/appellants. Thus, the learned counsel finally argued that CM No. 1-C/2011 be dismissed.
The learned counsel has declined the offer of costs made by the learned counsel for the applicants. The learned counsel for Respondent No. 4 has, however, stated that he has no objection upon the re-admission/restoration of the RSA.
5. I have considered the arguments of the learned counsel for the parties.
6. RSA was fixed for 9.6.09 on which date the learned counsel for the applicants/appellants Ch. Ihsan-ul-Haq Bhali, was present and it was adjourned to a specific date i.e. 16.6.09. This fact has not been denied by the learned counsel for the applicants/appellants. The contentions of the learned counsel for the applicants/appellants that in the diary of the learned counsel, the case was noted to have been adjourned sine die, is not supported by the document annexed with the CM. Two leaves of diary of June 2009, on one of which the date 20.6.09 has been written are annexed with the instant CM. No proof of the diary of date 9.6.09 has been placed on record for relying that on the date i.e 9.6.09 there was some mistake in noting down the adjournment of the case to be adjourned for sine die. No affidavit of the learned counsel for the appellant is placed on the record alongwith CM nor of his Clerk. It is also not stated in the application i.e. CM No. 1-C/2011 that the cause list for the date 16.6.09 of the instant case either was not supplied to him or was not noted by him.
7. The provisions of Article 168 of Limitation Act, 1908, provide a period of 30 days limitation for moving application for re-admission of an appeal dismissed for non-prosecution. The instant application has been moved after about more than two years of the dismissal of the RSA, i.e. the RSA was dismissed on 16.6.09 and the CM was moved before this Court for re-admission of the appeal on 6.7.2011. No application for condonation of delay has been moved by the applicants/appellants. It is also settled law that a party who seeks condonation of delay must explain the delay of each and every day. The case for relief of restoration/readmission of the appeal on sufficient grounds has to be built up by the applicants/appellants in accordance with law. The judgments cited by the learned counsel for the applicants/appellants have different facts and are not applicable to the facts and circumstances of the instant case. In the case law reported as World call Telecom Limited vs. Pakistan Telecommunication Authority through Chairman, Islamabad (2011 SCM R 959) the honourable Supreme Court of Pakistan at page 961 laid down as follows:-- "It is also well settled that so far the limitation concerned it creates right in favour of the other side and law always favours those who are vigilant and not those who are negligent in pursuing their remedy, therefore we are of the considered opinion, that no exception can be taken against the order of the learned High Court."
In the judgment reported as Messrs Adnan Trading Company vs. Appellate Tribunal Customs, Central Excise and Sales Tax and others (2011 SCM R 1535) the honourable Supreme Court of Pakistan laid down "The relief of restoration is dependent upon showing a good and sufficient cause for absence" are relevant with the facts and circumstances of the instant case. The applicants/appellants have not satisfied this Court about the sufficiency of the cause for restoration of the RSA and the CM No. 1-C/2011 is also barred by time keeping in view Article 168 of the First Schedule of the Limitation Act 1908, C.M No. 1-C/2011 is accordingly dismissed.