Muzamil Akhtar Shabir:- Through this civil revision, the petitioner has called in question order dated 11.09.2020 passed by learned Additional District Judge, Sialkot, whereby he has dismissed the application for restoration of an earlier application for restoration of appeal filed by the petitioner which had been dismissed on 04.02.2020 and it is prayed that by settin g-aside both the afore referred orders, the appeal filed by the petitioner pending before the Additional District Judge, Sialkot be restored to its original number and status and thereafter the case be decided on merits.
2. It is contended by learned counsel for the petitioner that learned courts below have not properly appreciated the facts of the case and law on the subject while dismissing the afore referred applications filed by the petitioner, therefore, the impugned orders are not sustainable.
3. On the other hand, learned counsel for Respondent No. 1 has defended the impugned orders by claiming that the Petitioner was not diligent in perusing the remedy and the applications being barred by limitation were rightly dismissed by the court below .
4. The remaining Respondents are not available, however , learned counsel for Respondent No. 1 states that the matter pertains to appeal filed by the Petitioner before Additional District Judge, Sialkot which has been dismissed and the remaining Respondents were only impleaded by the Petitioner as parties as they were legal heirs of defendant No. 1 in the original suit for declaration alongwith permanent injunction filed by Respondent No. 1 which was decreed in his favour , hence, the remaining Respondents have no interest to defend instant civil revision and only are proforma Respondents, therefore, their presence for the purpose of decision of this Civil Revision is not necessary .
5. Learned counsel for the petitioner concedes that the said Respondents are only proforma Respondents and matter can be decided in their absence. In view thereof, despite the fact that said respondents have not been properly served, as the matter can be decided in their absence, therefore, they are proceeded against ex-parte.
6. With the consent of learned counsel for both the parties, the instant case has been admitted to regular hearing.
7. Heard . Record perused.
8. The question arising for determination is that whether application of the petitioner for restoration of an earlier application for restoration of the appeal has been rightly dismissed vide impugne d order dated 11.09.2020. The main ground for its dismissal is that said application was barred by time and the supporting ground is that even on merits, the petitioner had no case.
9. Whether the said application was actually barred by time could be determined by reference to Articles 168 and 181 of the Limitation Act, 1908, reproduced below: First Schedule Third Division-Applications Description Period of Limitation Time from which period begins to run.
168. For the readmission of appeal dismissed for want of prosecution.Thirty days The date of dismissal.
181. Application for which no period of limitation is provided elsewhere in this schedule or by Section 48 of the Code of Civil Procedure, 1908Three years When the right to apply accrues.
10. Ordinarily in terms of Article 168, reproduced above, an application for restoration of appeal filed under Order XLI Rule 19 CPC is to be filed within 30 days of dismissal of the same for want of prosecution and failure to do so within time would result in its dismissal. Reliance in this regard is placed on the judgment reported as Shabrati vs. Shaukat Ali Khan (PLJ 1997 Karachi 510). However, in the present case, the application filed by the petitioner is not an application for restoration of the appeal rather the same is an application for restoration of an earlier application for restoration of appeal, in which although no provision of law under which it has been filed has been mentioned but for all intents and purposes, it is an application under Section 151 CPC, therefore, neither provisions of Order XLI Rule 19 CPC nor provisions of Article 168 of the Limitation Act, 1908 are applicable to the same. It is pertinent to mention here that application for restoration of the appeal filed by the petitioner was dismissed on 04.02.2020 and the restoration application was filed on 01.06.2020, which the learned Additional District Judge treated as barred by time without mentioning that under what Article of Limitation Act, 1908 the same was barred by time and what limitation was provided for filing the same. However, it is observed that as no timeframe is provided under the law for filing application under Section 151 CPC for restoration of an earlier application for restoration of appeal that had been dismissed in default, therefore, the residuary Article 181 of the Limitation Act, 1908 would be applicable which provides limitation of three years for filing such applications, for which no specific Article provides any limitation. Reliance in this regard is placed on the judgment reported as Muhammad Sadip vs. Mst. Bashiran and 9 others (PLD 2000 S.C. 820) wherein it is held no limitation having been prescribed for filing an application to invoke jurisdiction of the Court under Section 151 CPC in the Limitation Act, 1908 or Section 48 CPC, residuary provision of Article 181 of the said Act would be attracted which provides period of three years for the purpose. Same principle has been reiterated in the judgment reported as Sardar Abdul Majid Khan Lashari vs. The Asio African Co. Ltd (1972 SCMR 236) wherein it is held that Article 181 is a residuary article and it applies to all the matters in respect of which no period of limitation is provided. Reliance is also placed on the judgment reported as Ghulam Qadir & others vs. Sh. Abdul Wadood & others (PLD 2016 S.C. 712) wherein it is held that residuary Article 181 of the Limitation Act, 1908, providing three years limitation, shall be attracted to an application filed to seek restoration of an earlier application seeking restoration of revision petition which was also dismissed for non-prosecution.
The same principle would be applicable to the case in hand where application has been filed for restoration of earlier application for restoration of appeal which was dismissed for non-prosecution and limitation for filing the said application would be three years under Article 181 of the Limitation Act, 1908. Consequently, the observation of the learned Additional District Judge that application filed after about four months of dismissal of earlier application for restoration of appeal was barred by time is not spelt out from the record, which even otherwise is not in accordance with law, hence, to that extent the impugned order is not sustainable.
11. The other ground mentioned in the impugned order is that previous application was dismissed on merits and no ground for restoration of the said application was spelt out from record. The impugned order is reproduced below: "This is an application for restoration of an application for restoration of appeal.
2. Akhtar Hussain, the petitioner filed an appeal against Muhammad Jamal and others assailing the order dated 05.6.2018, passed by learned Civil Judge, Sialkot whereby suit of Muhammad Jamal, respondent No.1 was decreed. The appeal titled "Akhtar Huss ain Vs. Muhammad Jamal etc." was dismissed for non-prosecution on 04.3.2019. The petitioner then moved an application for restoration of the appeal on 11.09.2019 however the said application was rejected by this court on 04.02.2020 with the following order:- "Nobody from the side of petitioner has turned up. It is observed that from the last five dates, none from the side of petitioner is turning up. This is an application for restoration of an appeal, dismissed for non-prosecution on 04.03.2019, by the court of Miss Shazia Cheema, the then learned Additional District Judge, Sialkot. Application for restoration of appeal was submitted on 11.03.2019, accordingly respondents of the application were summoned. Since petitioner does not appear to be serious in pursuing this very application, that too an application, which itself seeks restoration of the appeal, which was dismissed for non- prosecution on 04.03.2019. The Petitioner has been given ample opportunities despite the fact that counsel for respondent is appearing, so very application, which seeks restoration of appeal, dismissed for non-prosecution itself is not being persuaded by the petitioner seriously , hence seeing the total indifference, application in hand for restoration of appeal is rejected."
Against that order of rejection of the application for restoration of the appeal dated 04.02.2020, the petitioner moved the application in hand on 01.06.2020 and that too without any application for condonation of delay. The grounds taken in the petition in hand are against the record which could be seen from the order reproduced above. The petitioner has not been able to establish any sufficient cause for his indifference and continuous absence from the proceedings. Law helps the vigilant, not indolent. Actually the application for restoration of appeal was rejected on merits. In this scenario, the petition in hand despite being barred by limitation is also devoid of sufficient ground for restoration of the application. Resultantly, this application is rejected. File of two applications for restorations be annexed with the appeal file which be consigned to the record room by Muhammad Nadeem Afzal Ahlmad-Civil."
12. Perusal of earlier order dated 04.02.2020 shows that the said application was not apparently dismissed on merits but on the ground that the petitioner did not appear to be serious in pursuing his remedy. It has not been explained that how said conclusion was reached in the impugned order dated 11.09.2020 that earlier application was dismissed on merits rather the court without giving any reason observed that application despite being barred by limitation is also devoid of sufficient grounds for restoration of the application, therefore, to that extent the impugned order is a vague and non speaking order and cannot be sustained. Reliance in this regard may be placed on the judgment reported as Mst. Nazir Begum vs. Iqbal Hussain Qureshi (1986 CLC 2167) wherein it is held that a non-speaking order of trial court passed without applying conscious mind to factual and legal aspects of matter in granting application for adducing additional, oral and documentary evidence, at a late stage when parties had presented final arguments could hardly be termed as judicial order and this Court in revisional jurisdiction, set-aside such order being not in consonance with legal requirements . The same principle has been reiterated by learned Sindh High Court in the judgment reported as Khushrang vs. W aris Khan (1988 CLC 460).
13. In these circumstances, although learned counsel for Respondent No. 1 has vehemently defended the same, I am not inclined to agree with stance taken by him that the impugned order dated 11.09.2020 was passed after proper appreciation of the record and law on the subject of limitation and consequently without commenting upon merits of remaining case, lest it may prejudice case of either party , it is held that order dated 11.09.2020 suffers from afore referred jurisdictional defects, therefore, is not sustainable.
14. For what has been discussed above, this civil revision is allowed and the impugned order dated 11.09.2020 is set-aside , as a result of which, the application filed by the petitioner for restoration of earlier application for restoration of appeal shall be deemed to be pending before the Additional District Judge, Sialkot, who after providing reasonable opportunity of hearing to the parties shall decide the same afresh on its own merits in accordance with law , which exercise shall be carried out expeditiously . No order as to costs.