ABDUL RASOOL MEMON, J.--- Through these applications, the applicant / appellant seeks restoration of his Second Appeal No.141 of 2012, which was dismissed by this court on 26.5.2014 for non-prosecution, and condonation of delay in filing application for restoration application so also permission to deposit court fees required to be paid on memo. of appeal.
2. Learned counsel for the applicant/appellant submitted that due to poverty and his poor financial position, the applicant/appellant could not arrange and pay court fees required to be affixed on memo. of appeal, therefore, he sought time to make up the deficiency of court-fee and on the date when impugned order was passed the matter was fixed for compliance of the office objection and not hearing. Learned counsel went on to argue that due to non-compliance of office objection and non-appearance of applicant/appellant, the appeal was dismissed in default and no period of limitation is provided anywhere in the first schedule of Limitation Act for filing application for re- admission of appeal dismissed in default, as such Article 181 of the first schedule to the Limitation Act would be applicable to the application under Order XLI, Rule 19, C.P.C. for re-admission for which the period of limitation is three years, thus restoration application is within time, even then to be on safe side applicant/appellant has filed the application under Section 5 of the Limitation Act for condonation of delay if any is considered by the court. He further submitted that applicant/ appellant is bed-ridding and serious condition and his wife is not affording herself to pay the court fees but the brothers and sisters of applicant/ appellant are ready to pay the court fees and court is competent to condone delay in payment of court fees looking to the peculiar facts and circumstances of the case. In support of his contention he has placed reliance on the cases reported in (1)Amanullah Soomro v. P.I.A. through Managing Director/Chairman and another (2011 SCMR 1341), (2) Muhammad Qasim and others v. Moujuddin and others (1995 SCMR 218), (3) Mst.
Saddiqunnisa v. Khan Sahib Agha Muhammad Sultan Mirza and 8 others (PLO 1972 Karachi 103) and (4) Muhammad Nazir Chaudhry v. Punjab Province and others (PLD 1978 Lahore 1350).
3. On the other hand, learned counsel for respondent vehemently opposed these applications and contended that despite clear direction/ order of the court to pay court fees within seven (07) days from the date of order passed on 27.3.2014, the applicant/ appellant failed to appear in court and not paid the court fees, as such, the conduct of the applicant/ appellant was contumacious in payment of proper court fees on the memo. of appeal, therefore, appeal was rightly dismissed. He further submitted that as per provisions of Article 168 of the Limitation Act, the application for re- admission of appeal is hopelessly time barred and applicant/ appellant is not entitled to condonation of delay as the delay of about 14 months has not been explained rather admitted in the supporting affidavit of this application that applicant/appellant and his family knowingly and intentionally were waiting to become in a position to pay court fees. Learned counsel further contended that poverty is no ground for non payment of court fees or seeking extension of time to make up deficiency after prescribed period for preferring appeal. To re-enforce his contention he placed reliance on the cases reported in (1) Lal Dino and others v. Deputy Commissioner and others (1982 SCMR 201) (2)Ch. Muhammad Ali v. Haji Feroz Din (2003 CLC 1218) (3) Sindh Industrial Trading Estates v. West Pakistan Water and Power Development Authority (PLD 1991 Supreme Court 250) (4) Mst. Safia Siddiq v. Haji Afzal-ur-Rehman and 2 others (2009 CLC 262) (5) Province of Punjab and others v. Registrar, Firm Nasarul Haq Associates and others (1998 MLD 2062), (6)
Khadim Hussain Agha v. Muhammad Ashraf (1980 CLC 621), (7) Mst. Wilayat Khatun v. Khalil Khan and another (PLD 1979 Supreme Court 821), (8) Food Department, Gujranwala through its Deputy Director and others v. Ghulam Farid Awan (2010 SCMR 1899). (9) Province of Punjab in its Ministry of Communications and Works through Collector, Multan and 2 others v. Registered Firm Nisarul Haq Associates Government Contractors and another (1998 MLD 589), (10) Nawab Din v. Basharat All (1986 MLD 692), (11) The Muslim Commercial Bank Ltd. Hyderabad v. Agha Shahabuddin and 7 others (1986 MLD 952), (12) H.H.S. Feldman v. The Province of East Bengal (PLD 1970 Karachi 295),
(13) Ghulam Farid and 4 others v. Sultan (1985 MLD 1619) and (14) Muhammad Suleman v. Ehsan Ali (represented by legal heirs) (PLD 1983 Karachi 537).
4.Arguments heard record perused.
5.The applicant/ appellant preferred this lInd Appeal on 21.11.2012 against the concurrent findings of two courts below whereby his Suit No.122 of 2003 (Old No. 432 of 1994) filed by him against respondents was dismissed by learned VIIth Senior Civil Judge, Karachi, East and first appeal filed against said judgment also met the same fate vide judgment and decree dated 26.9.2012 and 29.9.2012 respectively passed by the IInd Additional District Judge, Karachi (East). Admittedly, the applicant/ appellant filed 'Ind Appeal on 21.11.2012 without affixing court fees on memorandum of appeal but he filed an application under Section 149 read with Section 151, C.P.C. for grant of sufficient time to pay court fees. Notice was issued to the respondents, out of them respondent.
No.2 filed his objections to application under Section 149 read with Section 151, C.P.C.
6.It is also admitted position on record that the applicant/appellant failed to pay court fees and on 27.3.2014 in presence of applicant/ appellant court issued clear directions that "if court fees is not paid within seven days, this Second Appeal shall be deemed to have been dismissed". In spite of these directions applicant/appellant kept on delaying making up the deficiency of court fees, consequently on 26.5.2014 following order was passed: "Office objection for payment of cost fee is pending since 2012 and other two applications are also fixed for orders but none is appearing on behalf of the Appellant. This IInd Appeal is dismissed for non-prosecution."
7.The applicant/appellant's appeal was dismissed in non-prosecution due to applicant/ appellant's failure to appear in court on the date fixed for hearing and compliance of court order regarding payment of court fees. Specific provision is provided under Order XLI, Rule 19, C.P.C. for re- admission of appeal dismissed in default. Article 168 of the Limitation Act provides period of 30 days for filing application for readmission of appeal from the date of dismissal. On the point of limitation the main contention of learned counsel for the applicant/ appellant is that the appeal was not fixed for hearing but for compliance of the order and no specific provision specifying the time period for filing application for readmission of appeal dismissed in default, is provided under the Limitation Act, as such, Article 181 of the Limitation Act is applicable to the applicant/ appellant's application under Order XLI, Rule 19, C.P.C. wherein the period of limitation is 03 years. In this context he has relied upon the case of Muhammad Qasim and others (supra).
8.In the above referred case law, the date for final hearing was given by the Reader of the Court and not by the Presiding Officer, as on that date he was on leave, therefore, Honourable Supreme Court held that the order of the dismissal of appeal for non-prosecution was void and nullity and further held that in such case Article 181 of the first schedule to the limitation would be applicable but in the case in hand, not only the date of hearing was fixed by the court but also clear order was passed for payment of court fees within specific time and consequences of failure thereof and the wording of dismissal order as reproduced herein above is clear that the appeal was dismissed "for non-prosecution", as such with profound respect the above referred case law is distinguishable to this case. The contention of learned counsel for the applicant/ appellant that the restoration of appeal is governed under Article 188 of the Limitation Act which provides a period of three years is misconceived as the time for readmission of appeal for non-prosecution is 30 days as provided under Article 168 of the Limitation Act. In this context I am supported by case law reported in 1982 SCMR 201 and PLD 1991 S.C. 250 wherein it was held that "Even otherwise it is settled that in a case which falls under Order XLI, Rule 17(1) read with Rule 19, C.P.C. if the application is not filed within the period prescribed by Article 168 inherent power of the Court under Section 151, C.P.C. cannot be invoked".
9.So far application for condonation of delay is concerned, it is obvious from the record that on 21.11.2012 when the appeal was filed, the applicant/appellant was aware of non-payment of court fees/stamp papers on memorandum of appeal as he himself had filed application for seeking time to pay court fee but he did not make any effort to pay the requisite court fee during almost a period of one and half years, even in spite of clear directions of the court to him on 27.3.2014, to pay court fee within seven (07) days otherwise the appeal would be deemed to have been dismissed, neither applicant/appellant appeared in court nor made the compliance of the order of the court to pay the required court fee. These facts and circumstances of the case smack of negligence and contumacious conduct on the part of the applicant/appellant. Admittedly the application for restoration/readmission of appeal has been filed after about (14) months. In support of the application for condonation of delay, neither applicant/ appellant, nor his wife or other family members has filed affidavit, but the learned counsel for applicant/ appellant has filed his own affidavit wherein the ground for taking so long a period in filing restoration application is that applicant/appellant is bed-ridding and in serious condition while his wife was not affording to pay the court fee. If applicant/appellant was in bed ridding condition and his wife was un-affording herself to pay the court fee, they should have informed the court and beg the time. Not to appear before the court and not to seek time is negligence on the part of applicant/ appellant. No explanation has been submitted by applicant/appellant or his wife that which circumstances were restraining them not to attend the court. Even the counsel for applicant/appellant did not appear and make request for seeking time when appeal came to be dismissed. In a case reported in 2011 SCMR 1341 Honourable Supreme Court has held that there is no justification for depriving opposite party of legal rights acquired owing to negligence of petitioner or counsel retained by him. So far the citation referred by learned counsel for applicant/ appellant viz. PLD 1978 Lahore 1350 and PLD 1972 Karachi 103, which are different from the facts of instant matter. In former case restoration application was filed on next day of dismissal of appeal and in latter case delay was condoned mainly on the ground that the amount towards court fees had been paid to the advocate within 30 days time from the date of impugned order, which is not the position in case in hand. As mentioned above, in this matter after about 14 months restoration application has been filed and nothing has come on record if court fees amount was paid to the advocate rather the affidavit of learned counsel for applicant/ appellant shows that now the brothers and sisters of applicant/appellant are ready to pay court fee, which legally cannot be allowed after a long period of about more than three years from the date of preferring appeal. It is settled law that for seeking condonation of delay sufficient cause is shown for default and each day's delay is to be explained before the court which has not been done, therefore, I see no ground for condonation of delay in filing restoration application. Since applicant/ appellant has failed to make out a case for condonation of delay and his appeal has already been dismissed, his application for payment of court fee cannot be considered, in this regard reliance is placed on PLD 1987 S.C. AJK 05.
10. For the reason discussed above, I am of the considered opinion that all these three applications are devoid of merits and are hereby dismissed with costs.