' ZAFAR AHMED RAJPUT, J.--- Through this civil revision under section 115, C.P.C., the applicants/plaintiffs have impugned the order dated 31-10-2012, passed by the learned IIIrd Additional District Judge Khairpur whereby, dismissing the Civil Appeal No.107 of 2011, maintained the Order dated 7-12-2011, passed by the learned Senior Civil Judge, 'Mirwah, District Khairpur on application under section 5 of the Limitation Act, 1908 in F.C. Suit No.63 of 2007 and in consequence thereof the learned trial Court dismissed the application filed by the applicants/plaintiffs under Order IX, Rule 9, C.P.C., holding the same as time-barred.
2. Since a short point of limitation, for filing an application under Order IX, Rule 9, C.P.C., for restoration of a civil suit dismissed for default of appearance under Order XVII, Rule 2, C.P.C. In the mode of Order IX, Rule 8, C.P.C., is involved in this case; therefore, I do not deem it necessary to reproduce the facts of the case at length, however, the facts necessary for a proper appreciation of the point involved are that the applicants/plaintiffs filed a civil suit bearing Old No.63 of 2007 (New Nos.25 of 2009 and 13 of 2009) for declaration and injunction against the respondents/defendants in respect of land bearing S.Nos.106, 112/1 and 115, total admeasuring 19-34 acres, situated in Deh Jangwaro, Taluka Mirwah, District Khairpur, claiming preferential mohag right over the suit-land in comparison to respondent No.7, which was originally granted to the father of respondent No.7 in 1965, subsequently, the grant was cancelled in the year 1967 due to non-payment of dues.
However, the suit-land was regranted to him by the Deputy Secretary (Land Utilization) Board of Revenue Sindh, Hyderabad vide his order dated 4-10-2005. The applicants impugned the said order before respondent No.2 in Review Petition No.S.R.O.A-165 of 2005, which was dismissed, vide order dated 14-12-2006. Hence, cause of action arose to applicants to file the civil suit for declaration that the order of defendant No.2 dated 14-12-2006 was illegal, void and nullity in the eye of law and for their preferential mohag right over suit land in comparison to anybody including respondent No.7.
3. The respondent/defendant No.7 resisted the suit and filed his written statement wherein he denied the claim of the applicants, whereupon issues were framed on 25-10-2008 and the matter was fixed for evidence of applicants, who availed as many as 31 opportunities but failed to produce their evidence. At last, the learned trial Court dismissed the suit of applicants for default of appearance, vide order dated 21-12-2009.
4. Thereafter, on 1-2-2010, the applicants filed application under Order IX Rule 9, C.P.C. Read with section 151, C.P.C. For setting the dismissal of the suit aside. Since the said application was time- barred under Article 163 of the Limitation Act by 11 days, the applicants also filed an application under section 5 of Limitation Act, 1908, for condonation of delay in filing application under Order IX, Rule 9, C.P.C. The learned trial Court, after hearing the parties, dismissed the application filed under section 5 of the Limitation Act, vide Order dated 7-12-2011, consequently, the application file under Order IX, Rule 9, C.P.C. Was also dismissed being time-barred. Aggrieved by the said Order dated 7- 12-2011, the applicants/plaintiffs preferred Civil Appeal No.107 of 2011 before the District Judge, Khairpur. The appeal was heard and dismissed by the learned IIIrd Additional District Judge, Khairpur, vide Order dated 31-10-2012. Hence, this revision application.
5. I have heard Mr. Syed Jafar Ali Shah, the learned counsel for the applicants, and Syed Manzoor Ali Shah, the respondent No.7 and perused the material on record.
6. The learned counsel for the applicants mainly argued that the learned trial Court did not consider the fact that the applicants' default of appearance before the trial Court for evidence was neither deliberate nor wilful but due to fact that no court motion notice was issued to applicant after transfer of the case from the Court of learned Senior Civil Judge, Khairpur to the Court of Senior Civil Judge, Mirwah, under an administrative order, and learned trial Court dismissed the applicants' suit for default of appearance; therefore, Article 181 of the Limitation Act shall be applicable in the case which provides 3 years' time for filing application to set aside the order of dismissal for default under Order IX, Rule 9, C.P.C., but the learned trial Court misapplied Article 163 of the Limitation Act, which provides 30 days' time for filing aforesaid application. In this regard, he has relied upon the case of S. Mahmood Hyder v. Messer Alliance Enterprises (PLD 1985 Karachi 691). Lastly, the learned counsel for the applicants contended that the law favours the adjudication on merits and technicalities have been discouraged by the superior courts.
7. I am afraid, the contention of learned counsel is not correct and the case-law relied upon is distinguishable in the peculiar circumstances of the case in hand, as after perusal of the material on record, I am of the view that no court motion notice was required to serve upon the applicants after receiving by the learned Court of Senior Civil Judge, Mirwah by way of transfer on 23-10-2009.
As it is matter of record that on being transferred, the suit was fixed for hearing on 5-11-2009 by the learned trial/transferee Court and on said date applicant No.2 appeared and moved an application for adjournment on the ground that his counsel was not feeling well, as such, the case was adjourned to 26-11-2009; but on said adjourned date of hearing the applicants and their counsel were called absent without any intimation; thereafter, again on 14-12-2009 the position was same and then finally on next adjourned date of hearing i,e, 21-12-2009 when applicants and his counsel failed to appear, the learned trial Court dismissed the suit under Order XVII, Rule 2, C.P.C.
In the mode of Order IX, Rule 8, C.P.C. Hence, after appearance of applicant No.2 before learned trial Court (After transfer of the suit), there remained no requirement of issuance of court motion notices to applicants. It is crystal clear that the applicants were fully conscious about the date of hearing. The Order XVII, Rule 2, C.P.C. Is applicable upon the failure of a party to appear on an adjourned date of hearing also, no matter at whose instance the adjournment may have been; either at the instance of a party, or his counsel or by the Court itself; except the adjourned date fixed by the reader and not by the Court, in such circumstances the Rule 5 of the Order XVII, C.P.C.
Shall be applicable.
8. So far the question of attraction of Article 181 of the Limitation Act is concerned, it may be noted that neither before the trial Court nor even in the appellate Court the applicants raised this plea; and this plea has been agitated first time in this revision application, however, I would like to deal with it. After careful perusal of the material on record, I am of the views that the Article 181 of the Limitation Act does not attract to the facts of the present case. For the sake of convenience, I would like to reproduce Articles 163 and 181 of the Limitation Act 1908, which read as follows:--- {{TABLE}} 163 "By a plaintiff for an order to set Thirty The date of aside a dismissal for default of appearance or failure to pay costs of service of process or to furnish security for costs." Days dismissal 181 "Application for which no period of Three When the Limitation is provided elsewhere in this Schedule or by section 48 of the Code of Civil Procedure 1908" years right to apply accrues {{TABLE}} From bare reading of the Article 181 of the Limitation Act, it is clear that it is a residuary Article and applies to all matters in respect of which no period of limitation is provided elsewhere in the Schedule of Limitation Act or by section 48 of C.P.C. 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 reason that period for an order of dismissal of suit for default of appearance can only be set aside under Article 163 which is specifically provided provision in the Schedule of Limitation Act, 1908. The case of S. Mahmood Hyder (supra), cited by the learned counsel for the applicant is distinguishable from the facts of the case in hand. In the above cited case the civil suit having been transferred, received to transferee Court and the court motion notice was issued on that the counsel for defendant appeared and filed an application for permission of withdrawal of his power and he was allowed without compliance of the rules requiring important formalities to be complied with before such a permission is granted. Then on adjourned date of hearing when the matter was called, none was present from defendant side and the trial Court decreed the suit of the plaintiff under Order IX, Rule 6, C.P.C. In such circumstances, Mr. Justice Ibadat Yar. Khan, a Judge of this High Court; as he then was, referring the case of Messrs Rehman Weaving Factory (Regd.) Bahawalpur v. Industrial Development Bank of Pakistan, reported in PLD 1981 SC 21 held that non-service of a notice of an adjourned hearing would fall to be disposed of the case under Order XVII, Rule 2 of C.P.C. And the relevant Article of Limitation Act would be 181 and not 164, as the defendant of cited case had no knowledge about transfer of his case. But in present case, after transfer of the case the plaintiff No.2 had appeared and sought adjournment on the ground of illness of his counsel. Meaning thereby the plaintiffs were fully aware of fact that their case had been transferred and they had fully knowledge about hearing of the case. Therefore, for setting aside the order dated 21-12-2009 whereby the suit of applicants was dismissed in default, they ought to have approached the Court within 30 days in view of the provision of Article 163 of the Limitation Act, 1908. Reliance in this regard is placed on a Full Bench Decision of honourable Supreme Court, passed in the case of Honda Atlas Cars (Pakistan) Ltd. v. Honda Sarhad (Pvt.) Ltd., reported in 2005 SCM R 609.
9. As regard to the last contention of learned counsel for the applicant that the law favours the adjudication on merits and technicalities have been discouraged by the superior courts, when I considered the facts of the case to grip the above contention, it reflects negligent attitude on the part of applicants/plaintiffs, which had been continuing since the date of framing of issues. It is matter of record that the learned trial Court framed the issues on 25-10-2008, thereafter the matter adjourned on 31 dates of hearing but the applicants failed to produce their evidence. On 15-7-2009 a Divisional Bench of this Court took notice of the said fact and while deciding the Constitutional Petition No.627 of 2009, filed by the respondent/defendant No.7, directed the trial Court to dispose of the subject suit within two months. Even; thereafter, the applicants did not show any vigilance in producing their evidence before the learned trial Court. It does not stop here. Due to their said wilful negligent conduct not only dismissal of suit was taken place but also they could not avail the opportunity of getting the suit restored within the period of limitation. It is settled law that law favours the vigilant not indolent or negligent. It is also settled law that for seeking condonation of delay beyond the limitation period each day to be explained with cogent and substantial reasons but in the present case applicants have miserably failed. It is well-settled proposition of law that in civil matters a valuable right accrues to the other side by lapse of time. Therefore, answer to above principal of equity is, that whoever sleeps over his right is not entitled to relief, beyond period prescribed by law. As Limitation Act extinguished the remedy and not the right.
10. In view of above discussion, no case is made out on the ground of any material irregularity or exercise of jurisdiction not vested in the Courts below or Failure of exercise of jurisdiction vested in it; therefore, the impugned order of lower Courts below 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, which therefore, do not call for any interference or exercise of discretion on any point of law.
Accordingly, this revision application is dismissed with no order as to costs.