' This is an application for restoration of the appeal dismissed in default on 1-9-1999. It has been stated in the application that no date of hearing was communicated to the appellant and as such the order dismissing the appeal for non-prosecution was illegal and without jurisdiction. It is further stated in the application that it was after a considerable, time that the appellants enquired from the office of NIRC on 24-2-2000 and they then came to know that their appeal had been dismissed for non-prosecution on 1-9-1999.
2. On examining the order-sheet of appeal file, we find that the appeal was fixed for hearing on 12- 7-1999 before Full Bench comprising Mr. Bahadar Ali. Senior Member, Ch. Riaz Ahmad and Mr. Alauddin Qureshi, Members. No one appeared for the appellant on that day and the Full Bench, too, was not complete for the reasons that the Senior Member was busy at Lahore. Case was, therefore, adjourned to the following day viz 13-7-1999, on which date, Mr. Asmat Kamal Khan is shown to have appeared for the appellants but the Bench was again not complete for the aforementioned reason and the case was, therefore, adjourned to 1-9-1999 for admission. On 1-9-1999, case was called but no one appeared for the parties and the appeal was, therefore, dismissed for non- appearance and non-prosecution" .
3. Confronted with afore-noted position, Mr. Asmat Kamal Khan, Advocate, learned counsel for the applicants submitted that he had come to Islamabad to appear in the appeal on 12-7-1999 but since the Full Bench was not complete, he did not appear in the appeal and rang up Mr. Bahadar Ali, the then Senor Member who informed him that he was busy at Lahore on that day and also on the following day. He, therefore, left for Lahore not knowing that the appeal had been adjourned to 13-7-1999. With reference to his presence marked on 13-7-1999, the learned counsel seeks to explain that the Bench might have marked his presence out of courtesy. According to the learned counsel, he was in fact present at Lahore on 13-7-1999 and had appeared in the Lahore High Court as also in some other Courts. In support of these submissions, Mr. Asmat Kamal Khan has submitted his own affidavit and proceedings on these premises, he argues that he had no notice of the dates fixed on 13-7-1999 and 1-9-1999 and as such, the dismissal of the appeal in his absence was wholly illegal and without jurisdiction.
4.We have given anxious consideration to the submissions made by the learned counsel for the applicants. Even if the plea taken by the learned counsel which is supported by his own affidavit is accepted and it is held that he had no notice for the dates of hearing fixed on 13-7-1999 and 1-9- 1999 which it is difficult to hold in the face of the proceedings on the record, it is still of no avail to the applicants as this application even otherwise is liable to be dismissed being time-barred. It may be stated that the application seeking restoration of the appeal is shown to have been filed more than six months after the dismissal of the appeal and the applicants have not cared to file an application for condonation of delay. It may pertinently be observed that it was not a case of complete want of notice and, therefore, it is not available to the applicants to take the plea that the limitation would start running from the date they came to know about the dismissal of the appeal.
The learned counsel for the applicants on his own showing had the notice of the date of hearing fixed on 12-7-1999 when he chose not to appear in the case and left for Lahore. In the circumstances, it was his duty to keep himself informed about the next date of hearing to which the case was adjourned but neither he nor the applicants made any inquiry from the office for more than seven months as to the next date of hearing fixed in the appeal. Needless to state that if the applicants and their counsel had been a little vigilant about their case, they would have come to know that the appeal stood adjourned to 13-7-1999 and then to 1-9-1999 or that it was dismissed for non-prosecution on 1-9-1999. They, however, did not bother about their appeal for more than seven months and even when they came to know on 24-2-2000 that their appeal had been dismissed for non-prosecution on 1-9-1999, they took another eight days in filing the application for restoration of appeal and there is no explanation offered by them as to why they did not file the application immediately after coming to know that their appeal was dismissed in default. As noted above, they have not even cared to make an application for condonation of delay with the result that there is no explanation forthcoming as to why this application was filed after the delay of eight days counting from 24-2-2000 when the applicants came to know that their appeal had been dismissed in default. Needless to observe that for the reasons aforementioned, limitation in the instant case had in fact started running from the date of dismissal of the appeal.
5. Thus, viewed from whatever angle, this application is barred by time and the same is accordingly dismissed.