Shah Wali through miscellaneous petition (Civil Miscellaneous No.22 of 1998/BWP) under Order XLI, Rule 19 of C.P.C. Sought re-admission of Regular First Appeal No.39 of 1997/BWP., dismissed on 16- 10-1997 for non---prosecution.
2. The brief facts of the matter are that Shah Wali petitioner filed a suit against Allah Bakhsh for recovery of Rs.19,700 on the basis of a dishonoured cheque. The suit was decreed to the extent of Rs.8,700 by the learned Additional District Judge, Rahimyar Khan, vide judgment and decree, dated 16-6-1997. The plaintiff filed the abovementioned regular first appeal on 22-7-1997 and it came up for preliminary hearing on 15-9-1997 and then on 29-9-1997. On both the said dates, the learned counsel for the appellant did not appear and another counsel while appearing on his behalf sought adjournments. Then the appeal was re-listed on 6-10-1997, but nobody appeared for the appellant. It was adjourned and again re-listed on 16-10-1997, but still no one appeared on behalf of the appellant. On that date; the appeal was dismissed for non-prosecution. On 25-3-1998, i.e., after five months and nine days, the petition for re-admission of the said regular first appeal was moved alongwith application (Civil Miscellaneous No.23 of 1998/BWP) under section 5 of the Limitation Act for condonation of delay. The petitioner maintained that he had shifted to Quetta City for business purpose and on the very day of filing the regular first appeal till date his counsel did not inform or convey any message about the hearing of the appeal. He alleged that he came to the High Court on 21-3-1998 and learnt that the appeal was dismissed due to non-prosecution on 16-10-1997.
3. The learned counsel for the petitioner contended that the appeal was dismissed due to the negligence of the petitioner's counsel, who was duty bound to appear in the Court to prosecute the appeal. He further submitted that the petitioner entirely depended upon his counsel and when he did not get any information about the fixation of the appeal, he came to Bahawalpur and learnt about the dismissal of the appeal. In support of his contentions he referred the case of Syed Tufail Hussain and others v. Nafees Fatimi (1989 CLC 1163).
4. There is absolutely no force in the above contentions. This is not the case of the petitioner that the appeal was not shown in the cause list on the date of hearing or the name of his counsel had not printed therein. The only reason advanced for the re-admission of the appeal is negligence on the part of the petitioner's counsel. It may be mentioned here that the negligence of the counsel is never considered to be a sufficient cause for the restoration of the appeal nor for the condonation of delay in filing the petition for re-admission. The obligation of the appellant to be vigilant in prosecution of the appeal after engaging a counsel does not absolve him from his duty to see that his appeal is properly and diligently prosecuted. In the case of Zulfiqar Ali v. Lal Din and another 1974 SCM R 162 the Supreme Court observed as follows:--- "The mere fact that a litigant has engaged a counsel to appear on his behalf does not absolve him of all responsibility. It was as much his duty as that of the learned counsel engaged by him to see that the appeal was properly and diligently prosecuted. If he engaged a counsel who was lacking in his sense of responsibility to the Court, it is he who should suffer and not the other side. "
5. In the case of Rafiq Ahmad Khawaja v. Abdul Haleem 1982 SCM R 1229 the above view was reaffirmed by the Supreme Court in the following words:--- "In the facts and circumstances of this case, we are not impressed wit., the contention that the appellant was under no obligation to pursue his case and that his case has gone by default entirely due to the negligence of his counsel."
And again; "As pointed out earlier, the High Court on a thorough re-examination of the explanation furnished by the appellant in support of his non--appearance, has come to the conclusion that the appellant himself was negligent in not keeping in touch with his counsel "
6. In the case of Sher Muhammad v. Said Muhammad Shah 1981 SCM R 212 it was held as under:--- "It was undoubtedly the duty of the petitioner's counsel to inform him, if not of the date of hearing at least of the result, namely, the dismissal of the revision petition, but the counsel failed to perform this duty, and the petitioner learnt of the High Court's order only through a friend three months later. Even if these facts are accepted as correct, this would not constitute sufficient cause for the condonation of delay ....---
7. In the instant case the whole blame cannot be shifted only to the counsel of the petitioner, but he himself is also responsible for the fate of the appeal. The appeal was filed on 22-7-1997 and as per his own showing in the petition for re-admission he came to enquire about his appeal on 21-3- 1998. He did not bother to know what happened to the appeal filed by him for almost eight months.
Obviously the petitioner remained highly negligent as is evident from his conduct. He should have contacted his counsel after filing the appeal or should have himself tried to know whether it was being heard or not. There is no explanation as to why he kept silent and did not 8 enquire about the hearing of the appeal for eight months. He is guilty of positive mala fides or lack of bona fides and gross negligence. He is not entitled for any indulgence. Relied upon the cases of Ahmad Khan and others v. Muhammad Shafi 1981 SCM R 1145 and Mst. Walayat Khatun v. Khalil Khan and another PLD 1979 SC 821.
8. Rule 19 of Order XLI, C.P.C., deals with the re-admission of the appeal dismissed for default, which is reproduced as under:--- "19. Re-admission of anneal dismissed for default.---(1) 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 re- admission 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. "
And the period of limitation is provided in Article 168 of the Limitation Act, 1908, as under:--- 1 2 3
168. For the re-admission of an appeal dismissed for want of prosecution.Thirty daysThe date of the dismissal
9. Through Act IV of 1990 an amendment was made in Order XLI, C.P.C. And sub-rule (2) was added to Rule 19 as follows:--- "(2) The provisions of section 5 of the Limitation Act, 1908 (IX of1908) shall apply to an application for re-admission of an appeal dismissed under sub-rule (2) of Rule 11 or sub-rule (1) of Rule 17."
10. Earlier the provisions of section 5 of the Limitation Act were not applicable and the period of limitation provided for re-admission of an appeal could not be extended. After the said amendment, the delay in filing the petition .For re-admission of the appeal can be condoned if sufficient cause is shown for the delay. The petition for re-admission, in the instant, case is barred by .119 C days. It has already been observed that no sufficient cause existed for condonation of delay. In these circumstances, the Court has no jurisdiction to extend the time as the petitioner was grossly negligent and inactive. A similar view was expressed in the case of Muhammad Anwar and others v. The State 1989 SCM R 1381 and Muslim Commercial Bank Ltd. v. Aslam Khan and others 1987 CLC 2043.
11. It is well-established principle of law that where valuable rights are accrued to a party for lapse of time due to negligence or lack of bona fides etc: such party cannot be deprived of such rights except where sufficient cause is shown. The case of G.F. Jocob v. Bashir Ahmed Khan (1984 CLC 1792) is referred. The contention that the counsel for the petitioner was negligent and did not inform him about the fixation of the appeal is not a sufficient ground or condonation of delay. In the case of Muhammad Ramzan and 4 others v. Settlement Authorities and 2 others (1981 SCM R 194) the Supreme Court observed:--- "If he himself failed to convey correct information to his client, or for that matter his clerk conveyed false information, that by itself, in the circumstances of the case, was not sufficient ground for condoning of delay. The refusal to condone delay in the discretionary exercise of jurisdiction by the High Court is unexceptionable."
A similar view was expressed in the case of Jhanda v. Maqbool Hussain etc. (1981 SCM R 126).
12. The ruling cited on behalf of the petitioner (Syed Tufail Hussain's case) is not applicable to the facts of the case in hand. In the said case the appeal was accepted as a medical certificate about the illness of the appellant was filed and no question of limitation was involved.
13. As a result of the above discussion, the petitions for re-admission and condonation of delay fail and are dismissed in limine. l