' This appeal calls in question the order of the Additional District Judge, Gujrat, passed on the 7th of November, 1984, whereby he had dismissed the petition filed for restoration of the appeal before him under Order XLI, rule 19, C.P.C.
2. The appellant Ahmad Din had filed an appeal against Badar Din respondent in the Court of the learned District Judge, Gujrat, which, however, was dismissed for want of prosecution on the 10th of September, 1979, by the learned Additional District Judge vide the impugned order. The appellant submitted the petition late on the 1st of May, 1981, for restoration and readmission of appeal under Order XLI, rule 19, C.P.C. The respondent had resisted the move whereupon the learned Additional District Judge framed the following issues: {{URDU TEXT}}
3. The parties had adduced evidence on the said issues. The evidence examined by the appellant, however, did not impress the learned Additional District Judge who had also found the petition to be hopelessly time-barred. Therefore, the impugned order.
4. Learned counsel for the appellant has attacked validity of the order mainly on the premises that the 10th of September, 1979, when the appeal had been dismissed for default of appearance of the appellant, could not be termed as "date of hearing" and, therefore, the limitation shall not run against the defaulter. He placed reliance upon couple of authorities, Mst. Ghulam Sakina and others v. Karim Bakhsh and others (PLD 1970 Lah. 412) and Rahim Bux and another v. Gul Muhammad and others (PLD 1971 Lah. 746). In both these cases, the question of restoration of suits under Order IX, rule 9, C.P.C., had arisen and the dates on which the suits had been dismissed were not the ones fixed for "hearing" of the cases. The Courts, in the circumstances, overruled applicability of Order IX, rule 9, C.P.C.
5. Learned counsel for the respondent has refuted the said contention by contending that nature of appeal cannot be equated with that of a suit pending before a trial Court. Here, after admission of the appeal, the learned District Judge had subsequently transferred the same to the Court of the Additional District Judge who then issued notices to the parties and their counsel for the 5th of May, 1979. Thereafter, counsel for the parties had been appearing before that Court but the case for arguments in the appeal had been adjourned for one reason or another. In the meantime the respondent had filed a petition dated the 18th of March, 1979, bringing to the notice of the Court that the appeal be dismissed as time-barred, for, the appeal was under-valued and the extension in time for making up the deficiency in court-fee had also not been sought. This was, in fact, one of the grounds available to the respondent on which he was contesting the appeal. The 10th of September, 1979, was the date for arguments, not only in the petition but also in the appeal as well, though so is not specifically mentioned. After admission of the appeal, the date given in the appeal is normally the date of "hearing" as the arguments are to be addressed and the case decided.
6. Learned counsel for the appellant has further contended that even on merits the impugned order is not sustainable, for, it had not discussed the evidence produced by the appellant and had also not taken into consideration the medical certificate presented to explain the delay in filing the petition. The medical certificate, in fact, covers the period after the appeal had become already time-barred. So far as the evidence of the appellant is concerned, that is hardly worth serious consideration. The appellant has himself admitted while appearing as A.W.3 that he had contacted his counsel, Mr. Nisar Ahmad, Advocate, on the 10th of September, 1979, to enquire in which Court the case was pending and to that he replied that he shall receive notice in due course of time. The counsel of the appellant was present on the previous date of hearing, that is the 24th of July, 1979, and in his presence the case had been posted to the 10th of September, 1979, for arguments. The learned counsel, therefore, could not plead ignorance about the Court or the date of hearing. The appellant had also not examined his counsel or his agent to say that the counsel had mistaken the date. In fact, on previous dates too counsel of the appellant had been appearing as is indicated by the record. The learned counsel for the appellant has admitted that the fault of the counsel was clear but he says that his sins should not visit the appellant. He placed reliance upon Syed Tufail Hussain and others v. Nafees Fatima (1989 CLC 1163). The facts of the cited authority are different from the present case. In the cited case, the petition for admission of the case had been made well in time and the delay was also well-explained. The appellant has admitted in cross-examination that he had not himself enquired about the date from the Court concerned. Therefore, the appellant has to share the blame. It is unthinkable that the appellant had entered appearance in the Court premises but still did not approach the relevant Court and enquire from the Presiding Officer or the official of the Court about the fate of his case. The respondent has to be believed when he says that the appellant was present outside the Court concerned and intentionally had not put in appearance. The intention of the appellant not to pursue the appeal is also manifest from his conduct after dismissal of his appeal. After dismissal of his appeal on the 10th of September, 1979, he had not taken any step whatsoever to apply for re-admission of the appeal till the 1st of May, 1981. After expiry of the limitation, the appellant had to explain each day's delay. Here, he has hopelessly failed to cover up his fault.
7. Learned counsel for the respondent has rightly laid stress on question of limitation which has to be resolved against the appellant in view of rulings, Khushi Muhammad v. Shaha, etc. PLD 1967 Lah.
151 and Iqbal Ahmad v. Mst. Sharif-un-Nisa and others PLD 1967 Lah.
1098. Both the rulings had reiterated the law that the application under Order XLI, rule 19, C.P.C., cannot be entertained beyond time of thirty days specified under Article 168 of the Schedule to the Limitation Act and the provisions of section 5 of the Act also did not apply to an application for restoration of appeal as no rule has been framed under section 122, C.P.C., to make section 5 of the Act applicable to an application for restoration of an for non-prosecution. Perhaps realising hardship in suits dismissed under Order, IX, rule 8, C.P.C., and for restoration of which good reason was available, the Legislature had decided to make provisions of section 5 of the Act applicable to the cases under Order IX, rules 9 and 13, C.P.C., by virtue of amendment through Ordinance X of 1980. However, no such corresponding amendment was made in the provisions of Order XLI, rule 19, C.P.C. The intention of the Legislature, therefore is clear that the appeals have to be treated differently from civil suits while examining the question of limitation. The limitation in restoration or readmission of appeals under Order XLI, rule 19, C.P.C., being thirty days under Article 168 of the Schedule to the Limitation Act and section 5 ibid. Being not applicable, the appellate Court had no option but to dismiss the petition and refuse to restore and re-admit the appeal. The impugned order is unexceptionable. Consequently, the appeal is dismissed with costs.