MUNIR A. SHEIKH, J.- This revision petition is directed against order dated 18-1-1997 through which appeal filed by the petitioner against order dated 24-10-1996 passed by the trial Covtrt dismissing her application for restoration of the suit has been rejected.
'2. On the death of Uncle of the petitioner and the respondent mutation of inheritance was sanctioned on 8-8-1963 in favour of the respondent as nephew' and his widow.: The petitioner being niece was, however, ignored. She filed suit in the year 1991 challenging the legality of the said mutation on the ground that she w'as also one of the heirs of her uncle namely Ghhutan, deceased, therefore, the said mutation through w'hich inheritance had been allow'ed to the respondent exclusively w'as void and did not affect her rights. In the suit the respondent made an application under Order 7 Rule 11 CPC for rejection of the plaint which was fixed for . Consideration on 15-10-1991 when none appeared on behalf of the petitioner and the suit was dismissed for non- prosecution.
3. The petitioner instead of making application for restoration of the- suit challenged the said order in revision petition which was subsequently y . Withdrawn with a view to avail the proper remedy.
She filed another suit on the same subject-matter regarding the same cause, of action which was dismissed under Order 9 Rule 8 CPC on the ground that fresh suit after the 'dismissal of the previous suit in default was not maintainable. She made an application under Section 12(2) CPC in both the suits. The said application was also dismissed on 18-12-1994 on the ground that the same was not maintainable against which revision petition filed by the petitioner was dismissed on 18-1- 1996. ;
4. The petitioner then filed application under Order 9. Rule 9 CPC for restoration of the suit on 14-10- 1996 which was rejected through order dated 24-10-1996 inter alia 0n the ground of limitation. The appeal filed by the petitioner against the said order has been rejected through order dated 18- 1.-1997, both of which have been assailed in this revision petition. .
5. Learned counsel for petitioner submitted that 15-10-1991 was not a date fixed for hearing of the suit whereas it was the date for consideration of application made by . The respondent under Order 7 Rule 11 CPC, therefore, limitation seeking restoration of the suit was three years, under Article 181 CPC as held by the superior Courts as the period of limitation of 30 days prescribed for restoration of the for non-prosecution is applicable only if the suit had been dismissed on a date of hearing. Even if this argument is accepted the application for restoration should have been made w'ithin three years from 15-10-1991 whereas it was filed on 24-10-1996 after a period of more than five years, therefore, this argument contains the seed of its mvn destruction and-is of no avail.
6. Learned counsel for petitioner then submitted that the petitioner had been following the other remedies in good faith, therefore, she should be. Given credit for the period spent in the prosecution of the said remedies u/S. 14 of the Limitation Act.
7. I am afraid if benefit- of Section 14 of Limitation Act can legitimately be claimed in this case for time and again it was pointed.Out by the Courts that remedy of the petitioner wras to file application feu- restoration of the suit and those proceedings which were being prosecuted by her Were not maintainable, as such, cannot be said to have been prosecuted in good faith.
8. Even if the petitioner is allowed benefit of the period spent in prosecution of the other remedies there is no explanation for not making application from 18-1-1996 to 23-10-1998.
9. Even otherwise 15-10-1991 was a date of hearing in the suit, for, the question whether the plaint did disclose cause of action to determine whether it was liable to be rejected was a matter which related to the merits of the suit and the plaint, therefore, it was a date on which the merits of the suit were to be considered, therefore, according to the established law the date for consideration of such matters in the suit would be deemed to be a date of heai'ing in the suit itself.
10. For the foregoing reasons the findings of the two Courts below that the application of the petitioner for restoration of the suit was barred by tim,e, do not suffer from any material irregularity'' amounting to illegality affecting adversely the legality of the impugned orders.11. The revision petition has no merits which is accordingly dismissed with no order as to costs.