' On 22-5-2000 S.A.O. No,23 of 1995 was dismissed for non-prosecution. This is application for restoration of the same.
2. It is contended by the learned counsel that the applicant became aware of the dismissal of the appeal on 28-5-2002 when the copy of the order was produced by the respondent side in the Court of Ch. Munir Ahmad, Civil Judge, Lahore and that although the applicant had engaged two counsel, one of them namely Kh. Muhammad Habib Ullah, Advocate had died in the year 1996 whereas the other counsel namely Saleem Anwar Khan, Advocate did not receive the cause list of 22-5-2000. It is thus contended that the non-appearance was neither deliberate nor intentional but for the above reasons. Latterly an application (C.M. No,2-C of 2002) under section 5 of Limitation Act, 1908 was also filed seeking condonation of delay for the abovesaid reasons. Both these applications have been contested by the respondent by filing reply and controverting the assertions and that the application was hopelessly barred by time. It is urged by the learned counsel for the respondent that the conduct of the applicant need to be kept in view while disposing of this application. The depositions made in the affidavits submitted by the applicant and his learned counsel have been controverted through a counter-affidavit filed by Mr. Saif-ud- Din Chughtai .
3. C.M. No,226-C of 2003 has been filed by the respondent in order to place on record a copy of Criminal Original No,5-L of 1995, which had been filed by the respondent before the Honourable Supreme Court of Pakistan, copy of order dated 22-10-1995 passed by the Honourable Supreme Court and copy of Order dated 5-11-1995. Since the same orders have been referred to by the learned counsel for the applicant as well and photo copies produced by him before me, the application for placing on record copies thereof is allowed and disposed of.
4. Ch. Muhammad Ali, the applicant herein had filed an objection petition under Order XXI, rule 103, C.P.C. Before the Civil Court/Rent Controller, Lahore, which was dismissed on 7-6-1994. His appeal there against was dismissed by the learned Additional District Judge, Lahore on 12-12-1994. S.A.O.
No,23 of 1995 was then filed by him, which, as mentioned above, was dismissed for non- prosecution on 22-5-2000. The application for restoration thereof was filed long thereafter, on 24- 6-2002. It was not even accompanied by any application for condo nation of delay. C.M. No,2-C of 2002 under section 5 of Limitation Act, 1908 was filed on 12-10-2002 seeking condo nation of delay in filing the application for restoration of appeal. The only reason brought forth for non- appearance as also for condo nation of delay is that the applicant had no knowledge and information about the order dated 22-5-2000. According to the learned counsel for the applicant Article 181 of the Limitation Act, 1908 would thus be applicable and not Article 168 of the Limitation Act, 1908. Such an assertion has been made on the plea that since the list had not been provided to the counsel for the applicant, therefore, it should be treated as if the appeal had been dismissed without notice to the appellant. The assertion of the applicant that for a long time he remained unaware of the dismissal of the appeal in hand and difficult to accept inasmuch as the name of the learned counsel had duly appeared in the cause list of the day i,e, 22-5-2000. There is presumption as to supply of cause list to the learned counsel. The affidavits filed in support of the applications stand controverted through the counter-affidavit of the respondent. According to the assertion of the applicant he acquired knowledge of the dismissal of the appeal on 28-5-2002, whereas the application for restoration was filed on 24-6-2002 and application for condo nation of delay was filed even long thereafter on 12-10-2002. There is no explanation for taking so long a period in filing restoration application and then application for condoning delay. Needless to observe that the applicant was obliged to explain each day's delay but no such attempt has been made by him. All this smacks of indolence and indifferent attitude and conduct of the applicant in pursuing and prosecuting the appeal. I am unable to agree with the learned counsel that residuary Article 181 of Limitation Act, 1908 should be applied in such a case. It is rather Article 168 of the Limitation Act, 1908, which would be attracted to the facts and circumstances of the present case.
Reference may be made to All Dino and others v. Deputy Commissioner and others 1982 SCM R 201 and Sindh Industrial Trading Estates v. West Pakistan Water and Power Development Authority PLD 1991 SC 250. I am, therefore, not persuaded to hold that the applicant was prevented by any sufficient cause from appearing on 22-5-2000 and therefore, not inclined to readmit and restore the appeal.
' As a result of the above both these applications are bereft of IC merit and are dismissed.