NAZAR AKBAR, J. This Revision Application is directed against the order dated 10.11.2009, whereby the learned IInd Additional District Judge, Khairpur has allowed Civil Appeal No.95/2009 and remanded the case to the trial Court without any cogent reasons for even remand of the case. The grievance of the applicant is that question of limitation was raised that the appeal was hopelessly time-barred has not been answered by the Appellate Court.
This revision was presented on 18.10.2 010 and even in this revision the counsel for the contesting party i.e. respondent No.6 has not answered the question of limitation. Counsel for the other respondents viz learned A.A.G. is present, however , he has only supported the impugned order and contended that respondent No.6 has their own law officer. Mr. Kalandar Bux Phulpoto has informed the Court that earlier he has been appearing in this case on behalf of respondent No.6 but for the last several years he is not appearing on behalf of respondent No.6. No counter affidavit to the factual controversy regarding limitation has been filed during the last ten years by the respondents. Be that as it may, since limitation is question of law, once it was raised it was duty of the Court to decide it. The counsel for the State is present but he is also unable to explain the cause of delay in filing appeal with a delay of more than 120 days. Learned counsel for the applicant has taken me to the record of case file. The case diaries of the trial Court in the Suit No.119 of 2008, show that despite having filed written statement, respondent No.6 and others have never contested the claim of plaintif f, as almost on every date of hearing either the advocate for respondent was absent or he has sent an adjournment application through his Munshi .The side for the evidence of the applicant was closed on 23.5.2009 and the Respondent never bothered to even file a proper application to re-open their side for cross-examination and their evidence. Ultimately the suit was decreed on 24.06.2009 and the decree was prepared on 29.06.2009. The learned counsel for the applicant has contended that from day one till the date of disposal of suit, the counsel for the respondent was not appearing but only sending applications for adjournment and, therefore, the contention of the learned counsel for the respondent before the appellate Court that the judgment has been passed behind the back of respondents was factually incorrect. He has further contended that even the applicatio n for certified copies of the judgment and decree was filed after delay of more than (90) ninety days that is to say even after the limitation for filing an appeal against the order of the trial Court. He has further contended that no explanation of delay has been mentioned in the application under section 5 of the Limitation Act when the appeal was filed and therefore, the very order of ' setting aside order of the trial Court by the appellate order was illegal and unlawful.
As usual as the counsel for respondent No.6 is absent from this Court even today though they are on notice and they were appearing in this Court also. However , the learned counsel for the State Mr. Mehboob Ali Wassan, A.A.G. has tried to pursue this Court to maintain the remand orders in the name of interest of justice. He has also insisted that case be adjourned to the opening day of coming week i.e. 07.10.2019. However , after ten years when he himself is representing some of the Respondents and he is not in a position to argue the case on the ground that this case belongs to revenue department, I do not find any justification to show indulgence for the delinquent respondent No.6 who has never shown any interest in this case from 2008 till date. Besides the above, the learned counsel for the applicant has relied on the following case-law from the jurisdiction of Supreme Court of Pakistan.
1. Commissioner of Income T ax, Zone-B, Peshawar v . Zabeel Palace Hotel, Peshawar (2001 SCMR 361).
2. Federation of Pakistan through Secretary , Ministry of National Food Security and Research, Islamabad v.
Agritech Limited and others (PLD 2016 Supreme Court 676).
In view of the above facts and circumstances, this revision is allowed and the order passed by the appellate Court is set aside and that the decree passed by the trial Court is restored