Respondent, filed a suit for possession through demolition of the suit property, against the petitioner, in which the petitioner did appear, but subsequently absented and was, therefore, proceeded ex parte; after recording the evidence, the suit was decreed on 30-7-1998. Petitioner moved an application under Order IX, rule 13, C.P.C., for the setting aside of this decree alongwith an application under section 5 of the Limitation Act, seeking condonation of delay. This application was dismissed by the learned trial Court, vide order dated 27-11999, on account of the petitioner failing to deposit the process fee. For the restoration of the above application, the petitioner moved another application on 16-7-1999, which has been dismissed by the learned Trial Court, vide order dated 19-4-2000, primarily holding this application to be barred by time; appeal filed by the petitioner, has also failed on 29-5-2000. Both the Courts below have concluded that the conduct of the petitioner in pursing the matter has reflection upon his bona fide to move the application.
2. Learned counsel for the petitioner contends, that the petitioner, was in service and was posted in far-flung area of Balochistan, and thus, he could not get in touch with his counsel, therefore, the application for restoration of his earlier application under Order IX, rule 13, C.P.C., could not be filed immediately; besides, the process fee was also not deposited for the above reason. It is also submitted, that there is no limitation provided under the law for seeking restoration of an application under Order IX, rule 13, C.P.C., dismissed for non-deposit of process fee, and therefore, the reason given by the Trial Court, that the application is belated, is the result of misapplication of law. It is also stated, that the technicalities should not be allowed to affect the rights of the parties, to seek determination of the lis on merits.
3. I have heard the learned counsel for the parties. The question about the conduct of the petitioner being not vigilant in pursuing the matter, is not very relevant in the present matter, rather the main proposition is, whether the application of the petitioner moved on 16-7-1999, seeking restoration of his earlier application under Order IX, rule 13, C.P.C. , which was dismissed for non-deposit of process fee, was out of limitation. In this regard, it may be held that there is no provision in the Limitation Act, fixing the time for such application, therefore, Article 181 would be applicable and this application could be moved within three years from the date of the dismissal of the earlier application. Even otherwise, according to the provisions of Order IX, rule 4, C.P.C., if a suit of the plaintiff is dismissed for non-deposit of the process fee, the plaintiff is entitled to file a fresh suit. On this analogy also, the petitioner could have always filed a fresh application under Order IX, rule 13, C.P.C., seeking setting aside of the ex parte decree; however, this could have been subject to the question of limitation, for moving such an application. Anyhow, viewing it from any angle, the petitioner, though has been a bit negligent is pursuing the matter, but legally his application for seeking restoration of the earlier could not be dismissed by the Courts below, for the reasons stated in the impugned orders.
4. In the light of above, by allowing this revision petition, the impugned orders are set aside, the application of the petitioner under Order IX, rule 4, C.P.C., for seeking restoration moved on 16-7- 1999, is allowed, with the result that the Court below, shall now determine the application of the petitioner, under Order IX, rule 13, C.P.C., along with the other application, filed under section 5 of the Limitation Act.