1. ZAFFAR HUSSAIN MIRZA, J.--- This is a petition for leave to appeal against the order of a learned Single Judge, dated 30th April, 1989, in First Appeal No,29/1975, dismissing the application of the petitioner for restoration of the appeal, which had been dismissed earlier for non prosecution.
2. The brief facts of the case giving rise to this petition are that the petitioner company instituted Suit No,98/69 against the respondent for recovery of Rs,6,55,552.86 representing the arrears of lease money dues in the Court of the Civil Judge at Hyderabad. On 19th April, 1975, the petitioner's suit was decreed by the trial Court in the sum of Rs,2,48,652.18.
3. Being aggrieved the petitioner filed appeal (1st Appeal No,29/75) in the High Court of Sindh, Karachi, against the decree passed by the trial Court refusing to decree the entire amount of dues claimed by the petitioner. This first appeal was admitted for regular hearing on 27th October, 1975.
4. However, On 23rd May, 1985, the appeal was dismissed by an order which reads as follows:-- 23-5-1985: Mr. Gulab M. Rang Advocate for the respondent has been present since morning. This matter was called in the morning but none appears for the appellant. It is now 11-20 a.m. Appellant and his two counsel called absent. Ist Appeal No,29/75 is dismissed for non-prosecution with costs".
5. According to the petitioners as soon as they came to know that the appeal had been dismissed by the aforesaid order, they submitted an application for its restoration through C.M.1146/88 under section 151, C.P.C. As the application for restoration of the appeal was submitted on 19th October, 1988, the question of the bar of limitation was raised before the learned Single Judge in the High Court. It was urged on behalf of the petitioner that the Court was competent under its inherent powers under section 151, C.P.C. To restore the appeal in view of the peculiar and hard circumstances of this case. However, the learned Judge who decided the application did not agree with this argument and took the view that the appeal was in fact dismissed under Order XLI, rule 18, C.P.C. And for an application against an order of such nature, the specific provision is made by the C.P.C. For an application for readmission of the appeal under Order XLI, Rule 19, C.P.C. For such an application the period of limitation is regulated by Article 168 of the Limitation Act which prescribes 30 days time from the date of the dismissal of appeal. As section 5 of the Limitation Act has not been extended to application under Order XLI, Rule 15, C.P.C., the learned Judge found himself powerless to grant the prayer of the petitioners. Accordingly he dismissed the application for readmission of the appeal as barred by limitation.
6. In support of petition, Mr. S.A. Samad, Advocate contended that the learned Single Judge had erred in applying the provisions of Article 168 of the Limitation Act to this case. He submitted that the said provisions were not attracted to the present case as the same only applied to dismissal for want of prosecution. The argument of the learned counsel was that the appeal having been dismissed for default of appearance on the part of the petitioners and their counsel, it could not be said that the appeal was dismissed for want of prosecution. He made a distinction between the two expressions "dismissal for want of prosecution" and "dismissal for default of appearance". The learned counsel went on to argue that in its terms Article 168 is only applicable to an application for readmission of an appeal dismissed for want of prosecution and not in the case of an appeal dismissed for default of appearance. In the premises learned counsel urged that the application for readmission of an appeal dismissed for default of appearance, not having been specifically provided for anywhere in the first schedule to the Limitation Act, the same would be governed by residuary Article 181 for which the limitation is three years from the date when the right to apply accrues. In this way learned counsel strongly contended that the application for readmission of appeal submitted by the petitioners was well within limitation and was wrongly dismissed as out of time.
7. In order to appreciate the contentions raised by the learned counsel it will be necessary to refer to the following provisions of law: Order XLI, Rule 17. Dismissal of appeal for appellant's default.--(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing the Court may make an order that the appeal be dismissed.
(2) Hearing appeal ex parte.--Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte.
8. Rule 18. Dismissal of appeal where notice not served in consequence of appellant's failure to deposit costs. --Where on the day fixed, or on any other day to which the hearing may be adjourned, it is found that the notice to the respondent has not been served in consequence of the failure of the appellant to deposit, within the period fixed, the sum required to defray the cost of serving the notice, the Court may make an order that the appeal be dismissed: Provided that no such order shall be made although the notice has not been served upon the respondent, if on any such day the respondent appears when the appeal is called on for hearing.
9. Rule 19. Re-admission of appeal dismissed for default. --Where an appeal is dismissed under Rule 11, sub-rule (2), or Rule 17 or Rule 18, the appellant may apply to the Appellate Court for the readmission of the appeal; and where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit."
10. Description of application Period of limitationTime from which period begins to run.
11. Article 168--For the readmission of an appeal dismissed for want ofThirty days The date of the dismissal prosecution No doubt Article 168 of the Limitation Act speaks of the dismissal of appeal for "want of prosecution". Learned counsel submitted that this expression has reference to dismissal under Rule 18 of Order 41, where an appeal can be dismissed if it is found that notice to the respondent had not been served on account of the failure of the appellant to deposit the costs of such notice within time fixed by Court. Learned counsel referred to the English Practice and Procedure from the Annual Practice Volume I and Volume 11(1963). He submitted that dismissal is of two kinds: (i) dismissal on merits; and (ii) dismissal for default in complying with the rules as to the procedure and practice. On page 2009 of the aforesaid book instances of dismissal under category two stated above namely dismissal for default have been enumerated under the heading "Dismissal for Want of Prosecution or for Default under R.S.C." Under this heading default in taking out summons for directions, default in appearing and default in giving discovery or particulars, are mentioned together. According to the argument of the learned counsel there is a distinction between the default in appearance and default for want of prosecution. However, the reference to the Annual Practice on which the learned counsel relied makes no such distinction as both such types of default have been categorised under the same clause, namely, dismissal for default in complying with the Rules as to procedure and practice. Even otherwise learned counsel was unable to cite any authority from the sub-continent recognizing such distinction. It would, therefore, appear that non-appearance of the appellant is a category of non-prosecution as the failure to deposit costs for service on the respondent. It would therefore, follow that Article 168 uses the expression "for want of prosecution", in the wider and comprehensive sense to cover the default of appearance as well as non-deposit of costs. This view is in consonance with the apparent legislative intent as expressed in the provisions of Rule 19 of Order XLI C.P.C. Under this Rule application can be made for readmission of appeal dismissed under sub-rule (2) of Rule 11, or Rule 17 or Rule 18. Out of these three situations, only Rule 18 deals with dismissal for failure to deposit costs. The other two provisions deal with the dismissal of appeal as a result of default in appearance on the part of the appellant.
12. ' Learned counsel has, however, relied upon certain cases in support of his proposition that Article 168 only deals with non-prosecution in the sense canvassed by him. Reference was first made to Lal Dino and others v. Deputy Commissioner and others (1982 SCM R 201). In this case the appeal was dismissed as in spite of several opportunities given to the appellant he had failed to deposit costs for service on the respondent. As he made an application more than 30 days after the date of dismissal of the appeal, his application was held barred under Article 168 of the Limitation Act by the High Court. On a petition for leave to appeal, the appellant contended that his application falls under Article 181 and not Article 168 of the First Schedule to the Limitation Act. This contention was rejected and it was held by this Court that Article 168 was correctly applied by the High Court. The precise point which has been urged by the learned counsel before us did not arise in the facts of the aforesaid case, for the simple reason that the appeal was dismissed due to failure to deposit costs, which even according to the learned counsel falls under Article 168.
13. He has next referred to Fazil Khan v. Muhammad Azim and others (PLD 1954 Balochistan 21). The question in this case was as to which Article of the First Schedule to the Limitation Act was applicable to an application for restoration of an application for restoration of appeal. The learned Judicial Commissioner held that Article 168 only relates to the readmission of an appeal dismissed for want of prosecution and in absence of any specific provision of the Limitation Act in dealing with the application of the nature before the learned Judge, he held that Article 181 was applicable on the analogy that an application to restore an application to set aside an ex parte decree comes within the purview of the latter Article. Therefore in the facts of this case it was not an application for readmission of appeal dismissed for default of appearance which was under consideration, but an application for restoration of such application which had been earlier dismissed for default of appearance. This case also, therefore, does not advance the argument of the learned counsel or deal with specific question raised by him.
14. Learned counsel then sought to take advantage of some observations in M/s Rehman Weaving Factory v. Industrial Development Bank of Pakistan (PLD 1981 SC 21). We do not think that this case has any bearing on the question of law for determination before us. It lays down that Article 164 of the First Schedule to the Limitation Act governs applications for setting aside ex parte decree passed on the first date of hearing of a suit and not such a decree passed on a date after the initial service of summons, on fresh hearing after return of records from the High Court and defendants having no notice of date of hearing when such decree was passed. In such case it was held Article 181 was attracted.
15. A number of decisions have been referred to by the learned counsel in a note submitted which are Lachman Singh v. Hasi Rani Singh and others (AIR 1979 Calcutta 196), Keepilacheri Parkum Cheepothi Ammad etc. v. Vannathankandiyil and others (AIR 1916 Madras 473), Chamroo Singh and another v. Ragho Singh and others (AIR 1937 Patna 624), Kaviraj Rai v. Dass and others (AIR 1953 Allahabad 368), Ghulam Hussain Mahomed Ali v. Ahmad Gul and others (AIR 1935 Peshawar 110), Krishna Charan Modan v. Chinibasi Mondal (AIR 1925 Calcutta 269), Maung PO Tu v. C. Chaung Taik (15 Indian Cases 358), Sonubai Baburao Gaikawad v. Shivajirao Krishnarao (AIR 1921 Bombay 20) and Ata Muhammad v. Shankar Das (69 Indian Cases 618). All these judgments cited by the learned counsel are not relevant to the point under discussion. It is, therefore, not necessary to deal with each and every judgment. However, we would .Refer to some of the judgments. In Kaviraj Rai v.
16. Dass and others (AIR 1953 Allahabad 368), it was held that since the date of hearing was not communicated to the appellant or his counsel, the dismissal of appeal in such a case did not fall under Order XLI, Rule 17, C.P.C. Therefore, Article 168 had no application to application for readmission of appeal under such circumstances. The reasoning in this judgment, on the contrary by implication supports the view that a dismissal of an appeal for non-appearance of the appellant who has notice of the date of hearing would fall under Order XLI, Rule 17(1), C.P.C. And would be governed by Article 168. In Maung PO Tu v. C. Chaung Taik (15 Indian Cases 358) dismissal of appeal for non-appearance has been described as dismissal for default of prosecution which goes against the argument of the learned counsel. Sonubai Baburao Gaikawad v. Shivajirao Krishnarao (AIR 1921 Bombay 20) postulates that an appeal for default can be readmitted under section 151, C.P.C. But that is not the argument of the learned counsel. Even otherwise it is well settled that in a case which falls under Order XLI, Rule 17(1) read with Rule 19, C.P.C. If the application is not filed within the period prescribed by Article 168, inherent power of the Court under section 151, C.P.C. Cannot be invoked. This very case holds that Article 168 applies to an application under Order XLI, Rule 19, C.P.C. Under which if sufficient cause is shown for default, the Court is bound to readmit the appeal. There is one more reason for holding that Article 168 is applicable for the restoration of an appeal dismissed under Order XLI, Rule 17(1), C.P.C. It will be seen that the heading of Rule 19 of the said Order is "readmission of appeal dismissed for default". This Rule jointly deals with dismissal of an appeal, as already pointed out, under sub-rule (2) of Rule 11, Rule 17 and Rule 18 and lays down that the Court shall readmit the appeal if it is proved that the appellant was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the costs. Learned counsel admits that an appeal dismissed under Rule 18 will be regulated by Article 168. In that event since all the dismissals have been treated on par under Rule 19 there is no reason not to hold that Article 168 referred to the three situations to which Rule 19 applies, as "want of prosecution". Additionally it would appear that in the case of the respondent against whom an appeal has been heard ex parte on account of his default of appearance on the day when the appeal is called on for hearing, under Order XLI, Rule 17(2), the remedy for such a respondent is to make an application under Order XLI, Rule 21, C.P.C. The latter Rule provides for rehearing of appeal if the Court is satisfied that the respondent was prevented by sufficient cause from appearing when the appeal was called on for hearing. Therefore Rule 19 and Rule 21 are parallel provisions dealing with the default of appearance on the part of the appellant or the respondent. Article 169 of the First Schedule is admittedly applicable to an application for rehearing of an appeal heard ex parte. It provides for 30 days time. It looks very anomalous that the framers of the Limitation Act would treat the same act on the part of the appellant and the respondent differently in the matter of limitation. If the interpretation advanced by the learned counsel is accepted, an appeal dismissed for default of appearance on the part of the appellant can be restored within the limitation of three years (Article 181). But an application for rehearing of an appeal dismissed on account of default of appearance on the part of the respondent can be entertained only if it is made within 30 days of the date of the decree, or, where notice of appeal was not duly served, from the date of knowledge of the decree. We cannot, therefore, subscribe to the view advocated by the learned counsel. This is perhaps the reason why no reported case has held that Article 168 is not applicable to an application for restoration of appeal dismissed in default of appearance.
17. For all these reasons we hold that the view taken by the High Court that the application for restoration of appeal made by the petitioners was governed by Article 168 and was accordingly barred by limitation, is in accordance with law. However, even if Article 181, is applied, the application of the petitioners having been made after more than three years from the date of decree, the said application was even barred by limitation under Article 181.
18. In view of the above discussion we find that the order of the High Court is not open to exception and accordingly dismiss this petition.