' On 3-1-1980 Sarfraz Hussain, petitioner, filed a suit for the declaration against Muhammad Arshad and two others respondents in the Court of Senior Civil Judge, Faisalabad. The suit was decreed ex- parte on 30-7-1980. On the same day respondents/defendants filed an application under Rule 13 of Order 9 C.P.C. For setting aside ex-parte decree, which was dismissed on 14-2-1981. The appeal filed by the petitioner against this order was dismissed in default by the learned District Judge, Faisalabad on 11-5-1982. Allah Rakha one of the respondents,who was {{URDU TEXT}} for the other defendants was in police lock-up on the date when the appeal was dismissed in default. So he sent application through post for the restoration of the appeal. On this application the learned District Judge, passed following orders:- ' Seen. Placed it on the file. Inform him that he should apply according to law.
' Allah Rakha was informed accordingly on 20-6-1982. Thereafter, he filed a regular application for the restoration of appeal on 20-7-1982, which was accepted on 28-4-1983 and the appeal was restored. Hence this revision.
2. Learned counsel for the petitioner submitted that the appeal was dismissed in default on 11-5- 1982 and the application for its restoration was filed in the Court on 29-7-1982. The application was hopelessly barred by time. There was no sufficient cause to condone the delay. Section 5 of the Limitation Act does not apply to the application for the restoration of appeal dismissed in default.
The learned counsel for the respondents has supported the impugned order.
3. I have considered the matter carefully. I do not agree with the learned counsel for the petitioner.
Undisputedly Allah Rakha, respondent, who was also ) for the co-appellants was in police custody on 11-5-1982, when the appeal was dismissed in default. He remained in jail from 2-5-1982 to .12-6- 1982. On 9-6-1982 he through registered letter sent an application for the restoration of the appeal to the learned District Judge, Faisalabad. This application was received in the Appellate Court on 13-6-1982 and was placed on record. On this application the learned District Judge passed following orders:-- "Seen. Place it on the file. Inform him that he should apply according to law."
' Thereafter, second application was presented in the Court on 29-7-1982. The learned District Judge after applying his conscious mind to the circumstances of the case and to the first application of the Appellants dated 9-6-1982 sent by Allah Rakha {{URDU TEXT}} has restored the appeal. I do not see any illegality and material irregularity in the impugned order. Since admittedly Allah Rakha {{URDU TEXT}} was in police custody on the date when the appeal was dismissed in default and he had sent an application through post on 9-6-1982, which was well within time, therefore, no exception can be taken to the order of the restoration of the appeal. On 9-6-1982 Allah Rakha was in police custody, it was not possible for him to approach the co-appellants or his counsel so there was no alternative for him but to send the application through post. There is no legal bar in CPC for sending the applications through post by the parties to the Court in unavoidable circumstances. There is nothing in Rule I Order 4, or Rule I Order 41 and Rule 19 of Order 41, C.P.C., which requires that an appeal/application for the restoration should be presented personally to the Court by the applicant/appellant or by a pleader. Even under High Court Rules, Vol.I, Chapter 1-B, it may be irregular to send a plaint/appeal or application to the Court by post.
However to send plaint/application or appeal by post is not illegality. The application was sent through registered letter on 9-6-1982. Although it reached the Court on 13-6-1982 yet it will be deemed as if the application was presented in the Court on 9-6-1982. This being the position the second application filed by the respondent could not have been dismissed as barred by time.
Adverting to the merits I find that since Allah Rakha one of the appellants who was authorised agent for the other appellants was in police custody on 11-5-1982, therefore, there was sufficient cause for the nonappearance of the appellants on that date. Even otherwise the appeal could not have been dismissed on 11-5-1982 inasmuch as the same was not fixed for hearing on that date. An examination of the record reveals that on 4-4-1982 Sarfraz Hussain, respondent, in the appeal, had filed a miscellaneous application. He was directed to supply a copy thereof to Allah Rakha. This application was adjourned for the reply of the appellants therein to 11-5-1982. In reality the miscellaneous application was fixed for the reply of the appellants therein and the main appeal was not fixed for hearing on that date. I do not see any irregularity, or jurisdictional defect in the impugned order passed by the Appellate Court.
4. Pursuant to the above discussion, there being no merit the revision is dismissed, leaving the parties to bear their own costs.