Nobody has appeared on behalf of the respondents to contest this revision petition. Respondents Nos. 1 to 7 have been served through publication of notice in the daily `Nawa-i-Waqt' Lahore dated 15-1-1989. Respondent No.8 and 9 have already been proceeded against ex parte. Respondents Nos.1 to 7 are also hereby proceeded against ex parte.
2. In this revision petition order dated 28-2-1988 passed by the learned District Judge, Gujrat, accepting the application of the respondents for the restoration of the appeal dismissed for non- prosecution on 20-3-1983 has been challenged.
3. The respondents filed appeal before the learned District Judge against the judgment and decree dated 6-5-1980 passed by the learned Senior Civil Judge, Gujrat, dismissing their suit for declaration. The appeal was fixed for 20-4--1983 when it was dismissed for non-prosecution. An application was made under Order 41 Rule 19 CPC for re-admission of appeal on 5-11-1983 alongwith an application under Section 5 of the Limitation Act for condonation of delay in filing the said application. Both these applications were contested. The learned District Judge, Gujrat, framed the following issues:- (1)Whether the application is not within time?
(2)Whether the petitioner has got sufficient reason for the restoration of the appeal?
After considering the evidence produced by the parties, the learned District Judge accepted the application through impugned judgment and decree dated 28--2-1988.
4. Learned counsel for the petitioners argued that neither in both the applications nor in the evidence, sufficient cause was sown for non-appearance on 20-4-1983 when the appeal was fixed for hearing, nor each day's delay was explained in making the application for restoration. He also argued that m the application under Section 5 of the Limitation Act, either sufficient cause was not disclosed for condonation of delay and the learned District Judge passed the impugned order mechanically without application of judicial mind.
5. I have gone through the application filed by the respondents under Order 41, Rule 19, CPC. It was stated therein that the learned counsel namely Mr. Abdur Rashid Minhas who filed the appeal died during the pendency of the appeal. After his death another learned counsel was engaged who could not prepare the case because the complete papers were not available to him which were with the deceased counsel. The petitioners were making efforts to provide complete papers to their new learned counsel so that he was able to prepare the case and argue it. The petitioner fell ill due to which no appearance could be made before the Court on 20-4-1983. The same facts were repeated in the application under Section 5 of the Limitation Act. In evidence Mr. Muhammad Ashraf Advocate, Gujrat, was examined as AW. 1 by the respondents. It is in the evidence of this witness that Mr. Abdur Rashid Minhas, Advocate, the original counsel was his real brother who after remaining sick for 2-1/2 years died and after his death he had been doing the cases, which were with the deceased. He also deposed that during the life-time of deceased Abdur Rashid Minhas, he had been assisting him, in his court work. According to this witness death of Mr. Abdur Rashid Minhas took place on 9-8-1982. He also admitted that he had been appearing in this case and obtaining dates from the Court. It is also in his evidence that Ch. Noor Elahi,, Advocate was mukhtar of the petitioners respondents in this case. According to his evidence Ch. Noor Elahi, Advocate, had become sick after 2/3 months after the death of his brother Mr. Abdur Rashid Minhas. He stated that he and Ch. Noor Elahi could not appear due to misunderstanding and that their non- appearance was not wilful. In cross---examination he admitted that Ch. Noor Elahi was still member of Gujrat Bar Association and used to come to the Court off and on but he had no case with him. In cross-examination he also admitted that Ch. Noor Elahi was operated upon in the middle of 1982 or by the end of 1982. He also admitted that Ch. Noor Elahi pursued his daily pursuits.
A.W.2 namely Ghulam Rasul Mongia was also examined by the respondents who admitted that Ch. Noor Elahi was Mukhtar of the petitioners/respondents in this case.
6. It is manifest from this evidence that the respondents not only engaged another counsel for the prosecution of the appeal after the death of their learned counsel in August 1982, the respondents had also appointed Ch. Noor Elahi as their attorney. Both of them did not appear due to misunderstanding as stated by AW.IAW.I admitted that he had been appearing in this case and getting dates. If they could not appear on 20-4-1983 due to misunderstanding, no explanation is present on whole of the record for not making an application till 5-11-1984. It was not their case that they did not know the date of hearing having been fixed in the appeal as 20-4-1983. None of the respondents examined themselves as witness. The plea raised in the application that the petitioner No. 1/respondent No. 1 even if accepted as correct did not make any difference as the respondents had constituted Ch. Noor Elahi as their attorney who was bound to prosecute the appeal diligently.
7. In view of what has been discussed above there is no sufficient cause disclosed for non- appearance on 20-4-1983 when the appeal was dismissed for non-prosecution nor any sufficient cause was disclosed in the application under Section 5 of the Limitation Act for condonation of delay. The findings of the learned District Judge that petitioners/respondents were residing at Karachi, therefore, this was sufficient reason for restoration of appeal does not hold good. Ch. Noor Elahi having been appointed as attorney and admittedly another counsel was also engaged who had been appearing in the case, nothing turned onfactum of residence of the respondents at Karachi so far as question prosecution of appeal was concerned. The learned lower appellate Court acts with material irregularity and illegality in passing the impugned order for re-- admission of appeal. The revision petition is accepted. The impugned order dated 28-2-1988 passed by the learned District Judge is set aside and the applications moved by the respondents under Order 41 Rule 19 CPC and Section 5 of the Limitation Act are hereby rejected. The parties are left to bear their own costs.
H.B.T./M-1358/L