ABDUL HAMID Versus Mst. AISHA

This revision petition has sought to set aside the judgment dated 7‑11‑1975 pronounced by the learned District Judge, Bahawalpur who has restored the dismissed appeal for the respondent.

2. The facts of this case in brief are that the petitioner had obtained a decree for a declaration to the effect that he was an owner‑in‑possession of the ` suit land, and, the respondent lodged an appeal which was dismissed on 1‑3‑1975. The respondent filed a petition for the restoration of the said appeal under Order tJ1 Rule 19 and section 151 C.P.C. The said appeal was restored and re‑admitted to regular hearing. The plea taken by the respondent was that the learned counsel for the respondent in their diaries had written the date as 10‑5‑1975 instead of 28 2‑1975 and there was a misapprehension of date.

3. The appeal was fixed for hearing on 17‑2‑1974. On account of Eidul Fitr holidays it was adjourned to 6‑I2‑974 and then to 28‑2‑1975 which was declared as 'a holiday on account of Kashmir* Affairs and the file was placed for the learned appellate Court on 1‑3‑1975 under Order 17 Rule 4 C.P.C. The respondents' did not appear and the appeal was dismissed in default. The appeal was lodged after the expiry of 30 days An application a/s 5 of the Limitation Act was moved for the condonation of the delay. The learned appellate court condoned the delay and accepted the respondent's petition.

4.Firstly, it has been contended that the delay could not be condoned as the respondents had not stated in their petition as to when did they come to know of the dismissal of the appeal and secondly the parties were not on speaking terms and it was not expected for the petitioner to have told the respondents that their appeal had been dismissed. It has also been argued with reference to their Riaz v. Muhammad Ishaque (1974 Law Notes 270) that section 5 of the station Act could not be extended to an application instituted under order Rule 19 C.P.C. This legal position has been admitted by the learned counsel for the respondents who has adopted another line of reasoning. It has been argued on behalf of the respondents that Order 17 rule 4 C.P.C. pertains to suits and proceedings and not to the appeals and a reader is not competent to give a date to the parties in appeals and a party has to be given a notice in the eventuality of leave or the absence of the presiding officer. He has cited Nosheir Khan v. Said Ahmad Shah 1983 S C M R 1092 which lays down that the law of dismissal and re‑admission of appeals is contained in order 42 Rules 17 and 19 C.P.C and the procedure contained in Order 17 should not normally be made applicable to proceedings under Order 41: In this manner the order dated 1‑3‑1975 is illegal and no limitation commences to run against illegal orders. In view of the authority cited supra, it is abundantly clear that the order of dismissal ~, was passed against the provisions of law which could not be sustained and the' learned District Judge, although on other grounds, rightly restored the dismissed appeal. The law favours the adjudication of 'disputes on merits and I therefore, I dismiss this revision petition with costs.

M.Y.H/3286/L Petition dismissed.