1. This Civil Miscellaneous Application was filed on 10-3-1994 with request that the order of this Court dated 16-9-1993 be recalled and the appeal dismissed for non-prosecution may be restored. This application is supported by affidavit of appellant Shabrati. The respondent filed objections stating that the provisions of C.P.C. Are not applicable and the application is time-barred. The affidavit was contradictory and sufficient reason had not been mentioned for absence. The affidavit of advocate for appellant was not there as to why he was absent but it was subsequently filed. The appeal was listed in the cause list and the name of parties and the counsel was correctly mentioned.
2. The learned advocate for the appellant has also filed his affidavit stating that on 16-9-1993 he was pre-occupied and had to go to Chief Election Commissioner at Islamabad in connection with alleged bogus registration of voters. As he was out of station therefore cause list was not within his knowledge and no notice of this date was issued to appellant. He has further stated in his affidavit that till 9-3-1994 he was not aware-of the dismissal of this appeal for non-prosecution.
3. The learned Advocate for appellant submits that Article 168 of Limitation Act governs application under Order 41, Rule 19, C.P.C. He has placed reliance on the following decisions:
(1) 1989 SCMR 832.
(2) PLD 1992 SC 330 and 577.
(3) PLD 1966 SC 461.
(4) 1992 CLC 1073.
(5) 1990 CLC 206.
(6) PLJ 1983 SC 52.
(7) PLJ 1974 Lahore 257.
(8) 1991 CLC 1830.
(9) 1990 MLD 2135.
(10) 1990 SCMR 1025.
(11) 1989 SCMR 1202.
(12) 1983 CLC 2219.
(13) PLD 1982 SC 88.
(14) 1985 CLC 2622.
(15) 1985 CLC 2552.
4. Learned Advocate for appellant has also relied on some unreported orders and judgments which are not mentioned in his list.
5. The learned Advocate for the respondent submits that sufficient cause has not been shown for absence on the date when appeal was dismissed. This appeal was also shown in monthly list but no arrangement was made for informing the Court about the pre-occupation of the Advocate for appellant. He has placed reliance on decisions reported in (1) 1975 SCMR 179, (2) 1974 SCMR 162, (3)
6. 1993 CLC 817, (4) 1993 CLC 1236, (5) 1990 CLC 621, (6) 1983 CLC 2072, (7) 1985 SCMR 1066, (8) 1984 CLC 349 and (9) PLD 1991 SC 250.
7. The appeal was dismissed on 16-9-1993 and the said order is as under:-- "None present for the appellant. Mr. Hassan Mahmood Baig, present in respondents. It is already 12.15 noon. The First Rent Appeal is pending since 1988. It appears that the appellant who is tenant is delaying tactics in order to frustrate the ejectment order passed against him by the Rent Controller. In the circumstances the First Rent Appeal is dismissed with cost for non-prosecution.
8. The appellant is directed to handover the vacant possession of the premises in dispute to the respondent forthwith. "
9. On 10-3-1994 Civil Miscellaneous Application 46 of 1995 was submitted under Order 41, Rule 19, P.P.C.
10. Praying for re-calling of order dated 16-9-1993. This application is supported by affidavit of appellant. Subsequently the respondent submitted objection stating that the application is time- barred and no sufficient reason had been assigned for remaining absent.
11. The first point of controversy is whether the application under Order 41, Rule 19 is time-barred. The learned advocate for appellant has cited decisions in support of his arguments that such application is governed by residuary Article 181 which prescribed period of three years and not by Article 168. He has placed reliance on decision reported in 1983 CLC 2219. The relevant portion is as under:----- "In these circumstances in my humble view only those provisions of the Act which are mentioned in clause (a) of subsection (2) of section 29 of the Act will be applicable and, therefore, Article 168 of the Act which prescribes the period for filing an application for restoration of appeal dismissed for non-appearance will not be attracted. However, in absence of any specific Article in the Act being applicable to such applications, the same should be filed within a reasonable time which in my view should equivalent to the period prescribed in the residuary Article 181 of the Act as three years."
12. The 2nd decision relied in his respect is order of this Court dated 7-5-1994 in First Rent Application No. 180 of 1986. The order is as under----- "This appeal was dismissed for non-prosecution on 17-2-1994. An application for its restoration was moved on 16-4-1994. The office raised objection that the appeal was time-barred because it was moved beyond thirty (30) days prescribed by Article 168 of Limitation Act. Learned counsels for the appellants has cited the case of yousif v. Fazal Karim (1983 CLC 2219) where a learned Single Judge of this Court took view that time for making an application for restoration/re--admission of appeal was governed by Article 181 of the Limitation Act and not Article 168 of the said Act. The former Article prescribes a period of three years. In light of aforesaid authority the restoration application is not time-barred."
13. There is contrary view also. A Single Judge of this Court has given a different authority which is reported in 1990 CLC 621. The relevant paragraph is as under:---- "The plain reading of column 3 of the above said two Articles will show that Article 169 is applicable only where the rehearing of an appeal, culminating in a decree is sought while in case of Article 168 it is the re-admission of the appeal which is sought after the order of dismissal. It may also be observed that in case where the prayer is for rehearing of the appeal decided ex pane the starting point of limitation is the date of knowledge of decree while the starting point in case where the appeal is dismissed for want of prosecution is the date of dismissal. From this it is obvious that in case the prayer is for rehearing of a Rent Appeal heard and decided ex parte, it will be Article 181 of the Limitation Act that would apply and not Article 169 which is applicable only where such decision results in a decree.
14. Similar is the view expressed in decision reported in 1993 CLC page 817. The relevant portion is as under:---- "This limitation in restoration or readmission of appeals under Order 41, Rule 19, C.P.C. Being 30 days 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 refused to restore and re-admit the appeal . "
15. Their Lordships of Supreme Court have also expressed similar view in decision reported in PLD 1991 SC page 240, the relevant portion is as under:- "There is one more reasons for holding that Article 168 is applicable for the restoration of an appeal dismissed under Order 41, Rule 17(1), C.P.C. It will be seen that heading of Rule 19 of the said order is 're--admission 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 lays down that the Court shall re-admit the appeal if it is proved that appellant was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the cost. 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 41, Rule 17(2), the remedy for such respondent is to make an application under Order 41, 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. "
16. The 2nd ground for rejecting this application is that sufficient cause has not been shown for non- appearance on the day on which the appeal was called on. The appellant has submitted his own affidavit and subsequently affidavit of his Advocate was also filed wherein it is stated in paragraph 2 that on 16-9-1993 he was pre-occupied before Chief Election Commissioner of Pakistan at Islamabad in connection with bogus registration of voters in N.A.-168.
17. There are decisions that such excuse cannot be treated as sufficient cause. The learned Advocate for respondent placed reliance on decisions reported in 1975 SCMR page 179, wherein their Lordships were pleased to rule that, "the contention that as the learned Counsel was attending the Session of the Senate, he was entitled to any privileges, is entirely misconceived. It is a personal privileges and this privileges cannot be extended to professional work. The learned counsel did not also intimate to the High Court either by telegram or otherwise that he would not be available at the time of hearing of the appeal due to his pre-occupation with the work of the Senate." The petition was dismissed. Likewise in decision reported in 1985 SCMR 1066 their Lordships were pleased to rule as under:-- "The application for re-admission of the appeal was supported in the High Court by an affidavit filed by Haji Abdul Sattar son of the petitioner. Two reasons were disclosed in the affidavit for non-- -appearance of the petitioner and his counsel. The .First was that the petitioner was busy with the completion of the formalities of his journey to perform Hajj and secondly that Mr. Aftab Ahmed Alvi, the Advocate for the petitioner had virtually given up the legal practice. These two reasons were repelled by the High Court on cogent grounds and we are satisfied that no sufficient cause was shown for the absence of the petitioner and his Counsel. "
18. The contents of affidavits of applicant and his Advocate have been examined but sufficient cause has not been shown for non-appearance on the date in question. No intimation was given by them to the Court relating to their absence. The application for restoration/re-admission was submitted after nearly six months. Therefore, I am satisfied that this application is not maintainable as being time-barred and sufficient cause has also not been shown for non---appearance.