ALI BAIG, J. The instant Civil Misc. under sections 151, 94, C.P.C. read with Article 181 of Limitation Act has been filed by the petitioner for restoration of Civil Misc. No.91/2020 which was dismissed on 17- 08-2020 by this Court for non-prosecution.
2. Brief facts of the case giving rise to the instant petition are that the present petitioner had filed an appeal (C.F.A. No.33/2017) against the judgment/decree dated 15-05-2017 passed by lower court which was dismissed for non-prosecution on 18-03-2019. Accordingly, the present petitioner had filed an application (Civil Misc. No.151/2019) under Order XLI, Rule 19 and section 151, C.P.C. for restoration/ readmission of appeal in this Court. The aforesaid application was also dismissed for non-prosecution by this Court on 01-07-2019. Resultantly, the present petitioner had filed an application (Civil Misc. No.91/2020) for re-admission of appeal in this Court. The aforesaid application was also dismissed by this Court for non-prosecution on 17.08.2020, hence this petition.
3. The learned counsel for the petitioner has contended that wife of the petitioner is cancer patient and she was under treatment at Al-Shafa and Noori Hospitals Islamabad and the petitioner was also at Islamabad as attendant of his ailing wife, therefore, he could not appear before this Hon'ble Court on 17-08-2020. The learned counsel for the petitioner has further contended that absence of the petitioner was not deliberately and intentional but due to aforesaid reason, therefore, by accepting this petition, the impugned order dated 17-08-2020 may be set aside and the Civil Misc.
Petition No.91/2020 may be restored in the interest of justice.
4. On the other hand, the learned counsel for the respondent has opposed this petition by contending that the petition of the petitioner is hopelessly time barred and the petitioner has not shown sufficient cause for his absence at the time of dismissal of his petition by this Court, therefore, the present petition of the petitioner may be dismissed.
5. We have heard the learned counsel for the parties and perused the record with their' able assistance.
6. Main thrust of contentions of the learned counsel for the respondent is that petition of the petitioner is barred by time under Article 168 of the Limitation Act, but we do not agree with this contention of the learned counsel for the respondent; because, in our view, Article 168 of the Limitation Act does not apply to the present case. Article 168 of the Limitation Act applies to readmission of an appeal dismissed for want of prosecution. In absence of specific provisions of the limitation for readmission of misc. petition, we are of the view that Article 181 of the Limitation Act is applicable to restore an application to readmission of misc. application which was dismissed for non-prosecution.
7. In the light of these circumstances, the period of limitation is three years and the application itself is not time barred.
8. Moreover, justice demands that valuable rights of the parties need to be agitated upon merits rather than dismissing the matter on technical grounds.
9. For the reasons supra, this petition is allowed and the impugned judgment/order dated 17-08- 2020 is set aside/ recalled. Consequently, Civil Misc. Petition No.91/2020 is restored subject to payment of cost of Rs.2000/- to be paid to the respondent by the petitioner. This petition is disposed of accordingly. File.