MUHAMMAD KAMRAN KHAN MULAKHAIL, J.--- The appellant in Regular First Appeal No,(s) 08 of 2009 has filed this Civil Miscellaneous Application has been filed under Order XLI, Rule 19 read with Section 151 of the Code of Civil Procedure ("C.P.C.") for readmission of appeal, which was dismissed for non-prosecution and non interest vide this court's order dated 20.09.2012, whereby the following order was passed: "Despite repeated calls, neither appellant nor his counsel is in attendance the perusal of record reflects that the learned counsel for the appellant appeared on 29.10.2009, when the case was admitted to regular hearing. Thereafter on 09.09.2010, 04.11.2010, 09.01.2012, 10.05.2012 and 24.05.2012 remained absent. Under such circumstances, we are confident that the appellant has lost his interest in prosecution of appeal, therefore, appeal is dismissed for non-prosecution and non-interest. "
2. Mr. Hasnain Iqbal Minhas, learned counsel for the applicant/ appellant contended that the main appeal pertained to the Sibi Circuit Bench, which was pending at Principal Seat Quetta, but subsequently, it was transferred to the Sibi Circuit Bench but no notice was served upon the applicant or on his counsel in respect of transfer of the case; therefore, the appeal was dismissed in default and for non-prosecution on 20.09.2012. He further added that the non-appearance of the appellant and his counsel was not intentional but due to non-effective service. He added that since the valuable rights of the applicant were involved in the matter and due to dismissal of his appeal serious prejudice has been caused, which is also causing irreparable monetary losses to him. He contended that the law favors adjudication of /is strictly on merits and not on technical grounds. He further stated that miscalculation, mismanagement and misconception are always treated as human error, which mostly causes due to inherent shortcomings and inability to realize the seriousness of the situation at an appropriate time. He finally contended that the order of dismissal may be recalled and the main appeal may be re-admitted for its adjudication on merits and in accordance with law.
3. Mr. Muhammad Saleem Lashari, the learned counsel for the respondents strongly opposed the contention and stated that the application for re-admission of the appeal was filed on 11.12.2013, which is barred by about one year and three months. He contended that though the application under Section 5 of the Limitation Act, 1908 for condonation of delay is also herewith but under the law of limitation the applicant is bound to explain the delay of each and every day. He added that without explaining and stating sufficient reasons for causing delay, the same cannot be condoned on flimsy and concocted grounds. He referred to the order dated 28.11.2013 passed by the learned Senior Civil Judge Dera Allah Yar being the executing court, whereby Tehsildar Jhat Phat/Dera Allah Yar was directed to take over the possession of decreed land ("the suit land") with the help of SHO police station Dera Allah Yar with further direction to hand over the peaceful possession of the suit land to the decree holder and the case was adjourned to 16.12.2013 for submission of compliance report. He contented that when the referred to order of the executing court was passed, the applicant along with his counsel were present. He further added that the objection petition was filed by the applicant against the execution of the judgment and decree and after contesting his objections were also overruled. He contended that the contention advanced in respect of knowledge of the applicant is without any subsance. He finally urged that after dismissal of the main appeal the decree passed in favour of the respondents had successfully been executed and this application was filed after satisfaction of the decree, therefore, the application for re- admission of the main appeal deserves to be dismissed being barred by time and based upon false and concocted contentions. He relied upon judgment of the Honb'le Apex Court in cases of Khushi Muhammad v. Member Board of Revenue 2008 SCM R 358, Nowsheri Khan v. Saeed Ahmed Shah 1983 SCM R 1092 and Sindh Industrial Trading Estate v. West Pakistan Water and Power Development Authority PLD 1991 SC 250.
4. We have heard both the leaned counsel and have also gone through the relevant provision of law involved in the instant case. The re-admission of the appeal is governed by Order XLI, Rule 19, C.P.C., whereas the limitation for re-admission is governed by Article 168 of the Limitation Act, 1908, which stipulates the period of thirty days for readmission of appeal, therefore, if the appeal is dismissed under Order XLI, Rule 17(1), C.P.C. And application under Rule 19 is not filed within the period prescribed by the Article 168 of the Limitation Act, the inherent power under Section 151, C.P.C.
Cannot be invoked without sufficient cause and justifiable reasons particularly in an application, which is barred by time.
5. In the instant case the applicant himself appended a copy of order dated 28.11.2013, passed by the learned Senior Civil Judge Dera Allah Yar, which shows that after hearing the arguments an objection petition filed by the applicant against the execution of judgment and decree dated 16.03.2009, it was finally decided and case was adjourned to 16.12.2013 for submission of compliance report and during this interval the instant application for re-admission of appeal was filed.
' It is an admitted position that in the cause list dated 20.09.2012 the case was fixed in which the name of the learned counsel for the appellant/applicant was also mentioned but perusal of record reflects that the main appeal was being consecutively fixed on 09.09.2010, 04.11.2010, 09.01.2012, 10.05.2012 and 24.05.2012, when the appellant and his counsel remained absent. We have summoned the record of main appeal on request of counsel for the respondents, perusal whereof reveals that the learned counsel for the appellant appeared only on first hearing i.e, 29.10.2009 when the appeal was admitted to regular hearing and the operation of impugned judgment and decree was got suspended and paper book was directed to be prepared at the cost of appellant.
Thereafter on the aforesaid dates when the case was fixed for hearing neither the appellant nor his counsel turned up. In addition on coming to know about the dismissal of appeal the order of dismissal was obtained on 04.10.2012 but the application for re-admission of the appeal was filed on 11.12.2013 with the delay of about fourteen months. The facts noted herein above reveal that the petitioner had not been pursuing the remedy diligently as no immediate steps were taken for getting the appeal re-admitted, after obtaining the certified copy of dismissal order on 04.10.2012. It is well-settled that as far as the limitation is concerned, it creates right in favour of the other side, the law always favors those who are vigilant and not those who are negligent in pursing their remedy. Reliance in this behalf is placed upon a reported judgment of the Hon'ble Apex Court in the cases of Sindh Sugar Corporation Ltd. v. Messrs Maqbool Associates. Karachi reported in 2008 SCM R 47 and Worldcall Telecom Ltd. v. Pakistan Telecommunication Authority 2011 SCM R 959.
' We are, therefore, of the considered opinion that no exception can be taken against the order of dismissal of the appeal and application for re-admission of the main appeal is dismissed being without any substance.