MUHAMMAD QASIM. Versus MOUJUDDIN

1. This Miscellaneous Civil Appeal has been filed against the order passed by the Additional District Judge, Naushero Feroze on 11‑2‑1991 whereby he dismissed the two applications moved by the present appellants. Briefly the facts relevant for the purposes of this appeal are that the present respondents/plaintiffs had filed Civil Suit before the Civil Judge, Naushero Feroze being Suit No.10/82 for declaration and injunction which was contested and ultimately the suit was decreed vide judgment, dated 28‑10‑1987. The present appellants being aggrieved from the said judgment filed an appeal which ultimately by consent was fixed for regular haring and was being adjourned from time to time when on 26‑8‑1989 the same was dismissed for non‑prosecution as none had appeared on behalf of the appellants while the counsel for the respondents was present. An application under Order 41, Rule 19, C.P.C. was moved on behalf of the appellants on 25‑4‑1990, i.e. 13 months after the dismissal of the appeal. This application was supported with an application under section 5 of Limitation Act with the prayer that the delay in filing application he condoned for the reasons mentioned in the affidavit in support thereto. Learned Additional District Judge, Naushero Feroze, after hearing the Advocates for the parties was pleased to dismiss both the applications. Being aggrieved the present appellants have filed this Miscellaneous Civil Appeal.

2. I have heard the learned counsel for the parties, Mr. Ali Ahmad, Khanzada, Advocate for the appellants, has submitted that prior to the date on which the appeal was dismissed the matter was fixed for hearing on 29‑7‑1989 on which date the Presiding Judge was on leave and the appeal was adjourned by the Reader to '26‑8‑1989. He has further submitted that since this adjournment was made by the Reader, therefore, it cannot be treated as adjournment for the purposes of `hearing', and therefore, the provisions of Order 41, Rule 17, C.P.C. would not be applicable and the appeal could not be dismissed for non‑prosecution. For this reason he has further submitted that in such circumstances the provisions of Article 168 of Limitation Act would not be applicable but it will be Article 181 of Limitation Act which is to apply. He has placed. reliance on the case of Nowsheri Khan v. Said Ahmad Shah 1983 SCMR 1092. Repelling the above contention of the learned counsel for the appellants, Mr. Hassan Mahmood Baig, Advocate appearing for the respondents, has submitted that in the present case the appeal was adjourned from 29‑7‑1989 in presence of Advocate for the appellants and, therefore, he had full knowledge of the next date of hearing. It is further submitted by the learned counsel for the respondents that even if this be treated an adjournment for a formal date then also appellants or their counsel are required to be present on the date and, therefore, the absence had not been adequately explained nor any sufficient cause has been shown. He has further submitted that application for re‑admission of the appeal has been moved 13 months after the dismissal for which also no plausible explanation has come forth.

3. I have given anxious consideration to the submissions of the learned counsel. In the first instance it will be seen that the matter was fixed for hearing on 29‑7‑1989 on which date for the reason that Presiding Judge was not there, the appeal was adjourned to next date. The obvious inference is that it would have been adjourned for the same purpose. However, even if the contention of the learned counsel for the appellants is taken into consideration then also it was duty cast upon the learned counsel for the appellants to have kept himself abreast of further proceedings in the matter. It may be observed that whenever the proceeding is instituted by the plaintiff or appellant or intimation of such proceeding is received by the defendant or respondent then it is obligation cast upon them to keep themselves abreast of further proceedings in the matter from time to time. No excuse can be advanced for the negligence in this respect. In the present matter when the appeal was adjourned to ?.6‑8‑1989, there is no plausible reason as to why the appellant or his counsel did not attend the matter on this date of hearing or remained quiet for 13 months thereafter. The only reason given by the appellant in his application under section 5. of Limitation Act that he was not available as some criminal prosecution was instituted against some of his relations can hardly be treated as sufficient cause for condoning the delay. The appellant had also an Advocate to appear on his behalf and there was no explanation advanced as to why he was absent on the particular date. All that is said is that. the learned counsel was absent due to some unavoidable circumstances without explaining the same. I have taken into consideration the case of Nowsheri Khan cited by the learned counsel for the appellants and with all the respects I am of the view that the facts of this case are not identical to those of the present case as in that case the date was given by the Moharrir in absence of the counsel for the appellant and no chit was handed over to parties as required under Order 17, Rule 5, C.P.C. Secondly in that case before the Hon'ble Supreme Court an application for restoration was moved immediately whereas in the present case the application has been moved after 13 months of the dismissal of appeal.

4. From the above discussion it can be concluded that delay in filing of the application beyond the period of 30 days as required under. Article 168 of Limitation Act is on account of negligence on the part of the appellant which cannot be condoned in view of the said circumstances. The upshot of the above discussion is that this appeal is without any substance, I accordingly dismiss the same alongwith the Miscellaneous Application with no order as to costs.

5. K:BA./M‑1568/K Appeal dismissed.