MUHAMMAD DIN vs MUHAMMAD SALEEM
The petitioner filed a petition for special leave to appeal against an order of the Lahore High Court, which had dismissed his application for the restoration of a regular second appeal that was previously dismissed in default. The petitioner had sought restoration under Order XLI, Rule 19 of the Code of Civil Procedure 1908, accompanied by an application under Section 5 of the Limitation Act 1908 for condonation of delay. The High Court held that Section 5 of the Limitation Act 1908 does not apply to restoration applications for appeals dismissed in default. Before the Supreme Court, the petitioner conceded the inapplicability of Section 5 but argued that the appeal should have been restored under the inherent powers of the court pursuant to Section 151 of the Code of Civil Procedure 1908. The Supreme Court dismissed the petition, holding that the petitioner failed to justify his absence on the date of hearing despite receiving a registered notice. The Court affirmed the High Court's decision, noting that the petitioner failed to explain the delay and that the absence appeared deliberate.
- Does Section 5 of the Limitation Act 1908 apply to an application for the restoration of an appeal dismissed in default?
- Can inherent powers under Section 151 of the Code of Civil Procedure 1908 be invoked to restore an appeal dismissed in default when the applicant fails to justify their absence?
- Order XLI Rule 19, Code of Civil Procedure 1908
- Section 5, Limitation Act 1908
- Section 151, Code of Civil Procedure 1908
ORDER
KARAM ELAHEE CHAUHAN, J.--The petitioner filed a regular second appeal being R. S. A, No. 547 of 1966 in the Lahore High Court. It came up for hearing on 8-3-1976 but as nobody appeared for the petitioner (appellant), the same was dismissed in default on the aforesaid date. The petitioner filed an application being Civil Miscellaneous No. 2375-C/1977 for restoration of the appeal under Order XLI, rule 19, C. P. C. On 15-6-1977. It was accompanied with another Civil Miscellaneous Application bearing No. 2377-C/1977 which was filed under section 5 of the Limitation Act IX of 1908 for the condonation of delay and for extension of the relevant period of limitation for filing the restoration application. A learned Single Judge of the Lahore High Court held that section 5 of the Limitation Act was not applicable to an application filed for restoration of appeal dismissed in default and as such the period of limitation could not be extended there--under. Consequently he dismissed both the aforesaid applications. The petitioner has come up l-- a petition for special leave to appeal against the same to this Court.
2. Learned counsel conceded that section 5 of the Limitation Act was, not applicable to an application filed for restoration of an appeal which was dismissed in default. He, however, argued that as there was a sufficient cause for the absence of the petitioner therefore the appeal should have bear restored under section 151, C. P. C. Which deals with inherent powers of a Court. The contention has no merit because apart from the controversy whether section 151 can or cannot be invoked in such cases even otherwise on merits, the petitioner has not been able to satisfy us, regarding the justifica--petition of his absence on the date of hearing. A registered notice had been issued to the petitioner and despite that he failed to appear. It has no been pleaded that the petitioner has changed his address or that the notice was issued on any wrong address. In this state of affairs it appears to be a case of deliberate absence. It is well settled that in cases of this type a suitor has to explain each day of limitation, but the application filed by the petitioner in the instant case does not purport to do so. In these: circumstances we are unable to find any mistake in the view taken by the learned Single Judge. The petition has no merit, and is dismissed.