Through this application under section 151 read with Order 41, Rule 19, C.P.C. Learned counsel for the applicants has prayed for readmission of the appeal dismissed for non-prosecution on 23-1-1993.
Learned counsel submits that the applicants-appellants had no knowledge of the dismissal of their appeal in default on the said date. They had been efficiently persuing their appeal for 2-2/1-2 decades and they came to know on 20-9-1993 through a letter No.32420/S.C.R.-CS dated 5-9-1993 written by Deputy Registrar of this Court in response to their application for expeditious disposal of their above-titled appeal where after they contacted their counsel and filed this application on 22- 9-1993.
2. Alongwith above application, applicants have also moved C.M. No.517-C/1993 under section 5 of the Limitation Act for condonation of delay in filing the main application for re-admission of the appeal. Learned counsel submits that his name did not figure in the cause list for 23-1-1993 on which date the case was dismissed in default. He further submits that the main case was again fixed on 28-2-1993 wherefrom he gained the impression that the appeal is still pending. In this behalf he has appended copy of cause list with this petition as Annexure C. He submits that non- printing of his name in the cause list (Annexure D) is sufficient ground for recall of the order dated 23-1-1993. In support of his plea learned counsel has relied upon Lt.-Col. Mirza Munwar Beg etc. v.
Mst. Hassan Bibi and others (1981 SCMR 160) and Anwar Haq Khan v. Ch. Jamal Din and` others (1982 SCMR 463). He contends that omission of mentioning his name in the cause list by the office is sufficient cause for re-admission of the appeal. Learned counsel has filed his own affidavit as well as affidavit of Abdul Haq son of Muhammad A.I in support of applications.
3. Learned counsel for the respondents has submitted that the application for restoration of the appeal is hopelessly barred by time under Article 168 of the Limitation Act, 1908 period prescribed for making such an application is 30 days from the date of dismissal of the appeal. Date of knowledge is immaterial for the purpose-, cf said Article. He has relied upon Haji Ghulam Sarwar v.
Daya Ram (1975 SCMR 1791). He further submits that provisions of section 5 of the Limitation Act are not applicable to an application under Order 41, Rule 19, C.P.C. In view of dictum laid down in Iqbal Ahmad v. Mst. Sharifun Nisa and others (PLD 1967 Lahore 1098), Ahmad Din v. Badar Din (1993 CLC 817) and Muhammad Din v. Muhammad Saleem 1979 SCMR 172).
4. I have heard the learned counsel for the parties and gone through the applications as well as judgments referred by the learned counsel for the parties. The grounds mentioned in the applications for restoration of the appeal undisputedly are sufficient but this has been made on 23-9-1993 after 8 months from passing of the order of dismissal of the appeal for non-prosecution while under Article 168 period prescribed for such an application is 30 days from the date of dismissal and not from the date of knowledge. Provisions of section 5 of the Limitation Act have been made applicable to applications under Order 41, Rule 19 of C.P.C. Vide Act IV of 1990) Code of Civil Procedure (Amendment) Act, 1989 wherein it is provided in section 2 as "2.Amendment of First Schedule Act V of 1908--- (3)The provisions of section 5 of the Limitation Act, 1908 (IX of 1908) shall apply to application under sub-rule (2)
(b)in Order XLI-- (i)rule 19 shall be renumbered as sub-rule (1) of that rule and after sub---rule (1) re-numbered as aforesaid the following new sub-rule shall be added, namely:-- (2)The provisions of section 5 of the Limitation Act, 1908 (IX of 1908) shall apply to an application for re-admission of an appeal dismissal under sub-rule (2) of rule 11 or sub-rule (1) of rule 17.
5.Above-referred amendment is complete answer to the argument of the learned counsel for the respondents with regard to non-applicability of section-5 of the Limitation Act to proceedings under Order XLI, Rule 19, C.P.C. After going through the said amendment, I am absolutely clear in my mind that in view of the amendment, section 5 of the Limitation Act is applicable to an application for restoration of an appeal. Objection of the learned counsel for the respondent is, therefore, overruled to this extent.
6. However, the objection with regard to making of application after 30 days from the dismissal of the appeal is not without substance. Judgment reported as Haji Ghulam Sarwar v. Daya Ram (1975 SCMR 179) is fully applicable to the instant case wherein it has been held that time for readmission of appeal dismissed for in default runs from date of dismissal and not from date of knowledge of dismissal. Admittedly the application for restoration has been submitted after 8 months of the dismissal of the appeal is default. The application for readmission of the appeal is hopelessly barred by time. No sufficient cause has been established for condonation of delay. As per Annexure 'C' copy of cause list, after dismissal of appeal on 23-1-1993, it was listed in the cause list for 28-2- 1993 wherein name of learned counsel for the applicants was duly published but still neither the applicants nor their learned counsel checked from the office or the concerned Bench about the proceedings on the said date. If the applicants had made inquiry on the said date, from the office, they would have come to know about the dismissal of the appeal on 23-1-1993. This clearly shows that the applicants were not vigilent in persuing their appeal. Petitioners were bound to explain delay of each day for seeking condonation which has not been explained in the present case. Law helps those who are vigilant in persuing their rights and not those who sleep thereon. I B am, therefore, not convinced to condone the inordinate delay of seven months in filing the application for re-admission of the appeal. Application for condonation of delay (C.M. No. 517-C/93) is accordingly dismissed. Consequently application for re-admission of appeal is dismissed as barred by limitation. Parties are left to bear their own costs.