ILTAF ULLAH Versus MUHAMMAD ZAFARULLAH
ORDER
ABAID ULLAH KHAN, J.‑‑ The facts relevant for the purpose of disposal of this petition seeking review of the order of this Court passed on the 6th October, 1987, restoring the respondent's appeal (R.F.A. No. 128 of 1984), may be shortly stated. Iltaf Ullah, respondent, brought a suit for possession by pre‑emption of 100 kanals of the land in dispute, situate in the area of village Dilawar Cheema, tehsil Wazirabad, district Gujranwala, against Muhammad Zafar, petitioner, in the Civil Court, Wazirabad. The suit was decreed on payment of Rs.3,00,000. Against the decree of the learned trial Court the respondent preferred appeal to this Court for getting the quantum of purchase‑money reduced. The appeal (R.F.A. No.128 of 1984, was dismissed for non‑prosecution on the 9th April, 1985, as none put in appearance on behalf of the respondent though the learned counsel for the petitioner was present. On the 16th April, 1985, the respondent moved application for restoration of the appeal. It was contended that the clerk of the learned counsel for the respondent had, due to over sight, missed to note the appeal appearing in the list of cases fixed for the 9th April, 1985. This application was returned to the clerk of the learned counsel for the respondent with certain objections raised by the office and it was refiled on the 3rd March, 1986. This Court directed on the 9th March, 1986, that notice be issued to the petitioner (who was respondent in appeal).
2. In the meantime the Punjab Civil Courts Ordinance (Amendment) Act, 1986 (V of 1986), amending section 18 (1) (a) of the Punjab Civil Courts Ordinance, 1962 (II of 1962), raising the pecuniary limit of the appellate jurisdiction of the District Judges to Rs.2,00,000 came into force on the 14th June, 1986. The value of the appeal being less than Rs.2,00,000, the office of this Court thought that it was to be heard by the District Judge, Gujranwala, to whom it was sent for disposal. The learned District Judge held some proceedings on the application for restoration of the appeal. It seems that the office became conscious of the fact that the application for restoration of appeal was to be disposed of by this Court which had passed the order dismissing the appeal. Therefore, it requisitioned the file of the case and placed it before this Court.
3. On the 6th October, 1987, when the application came up for hearing before this Court no objection to its acceptance was raised by the lawyer appearing on behalf of the learned counsel for the respondent. The appeal was directed to be restored.
4. On the 8th October, 1987, the petitioner filed the instant petition for getting the order of restoration of appeal reviewed. According to the petitioner the application was not actually filed on the 16th April, 1985, rather it was filed much later after the expiry of period of limitation. In the alternative he asserted that even if the application were to be taken to have been filed on the 16th April, 1985, it had been returned the next day or within a few days thereafter for removing certain objections raised by the office and that its refiling on the 3rd March, 1986, rendered it time‑barred.
5. The respondent came up with the plea that the application had been returned to the clerk of his counsel a few days before the 3rd March, 1986, and that it was refiled after removing objections on the 3rd March, 1986. Muhammad Yousaf, clerk of the respondent's counsel, has sworn affidavit to the effect that the application for restoration of appeal was filed by him on the 16th. April, 1985, that he had been continuously watching list of cases to be returned by the office, that the application was not shown in the list for a lone time and then ultimately on inquiry made by him from the office of the High Court he came to know that the office had put some objections on the application, that the application had been returned to him in the last week of February, 1986, and after removing the objections it had been refiled on the 3rd March, 1986.
6. Inquiry into the whole matter confirms the truth of the stand taken by the respondent. The assertion made on behalf of the petitioner that the application appeared in the objection list on the 17th April, 1985, has not been found to be true. Actually the application did not figure even on the subsequent objection lists. The entries of the g record kept by this Court clearly show that the application was filed on the 16th April, 1985. There is no counter‑affidavit to the one filed by the clerk of the respondent's counsel. In the absence of the application appearing in any objection list his affidavit cannot but be accepted at face value. It was not due to any fault of the respondent that application was refiled late because the office did not officially intimate him, either by putting up the application on the objection list or by sending him a notice. The application could very well be treated to be within time. No review of the impugned order is called for. This petition is dismissed.
M . Y . H /I‑48/ L Petition dismissed.