GHULAM HUSSAIN Versus ADMINISTRATOR THAL DEVELOPMENT AUTHORITY
This petition seeks leave to appeal against an order of the Lahore High Court dismissing applications for the restoration of a Regular Second Appeal and for condonation of delay. The petitioners had instituted a civil suit which was dismissed, and subsequent appeals up to the High Court level also failed. The Regular Second Appeal was dismissed for non-prosecution in 2005. An initial restoration application filed shortly thereafter was returned due to an unattested affidavit, but the petitioners failed to cure the defect for six years. When they finally refiled along with an application for condonation of delay, the High Court dismissed both as the delay remained unexplained and unsupported by sufficient cause. The Supreme Court evaluated the record and held that the petitioners were neither serious nor vigilant in prosecuting their case and that the High Court was justified in refusing condonation. The Supreme Court laid down that a party seeking condonation of delay must explain the entire period of delay and show sufficient cause, and failure to do so warrants the dismissal of restoration applications without interfering on technicality grounds when gross negligence is established. The petition was consequently dismissed.
- Whether an unexplained delay of six years in removing office objections on a restoration application constitutes sufficient cause for condonation of delay?
- Is the High Court justified in dismissing an application for restoration of an appeal where the applicant has shown gross negligence and lack of vigilance?
- Can the Supreme Court interfere under Article 185(3) of the Constitution with an order refusing to condone delay in the absence of any illegality or jurisdictional defect?
- Section 5, Limitation Act 1908
- Article 185(3), Constitution of Islamic Republic of Pakistan, 1973
ORDER
IJAZ UL AHSAN, J.--- The petitioners seek leave to appeal against an order dated 21.01.2013 passed by the Lahore High Court, Multan Bench, Multan, in C.Ms. Nos.1537-C and 1538-C of 2011. Through the impugned order, an application for restoration of R.S.A. No.96 of 1974 and another application under Section 5 of the Limitation Act seeking condonation of delay, filed by them, were dismissed.
2. The brief facts necessary for disposal of this petition are that the petitioners instituted a suit against the Administrator, Thal Development Authority in the Court of Senior Civil Judge, Muzaffargarh. The same was dismissed vide judgment and decree dated 17.03.1973. An appeal filed before the District Judge, Muzaffargarh was also dismissed on 06.03.1974.
3. Aggrieved of the afore-noted judgments, the petitioners filed a Regular Second Appeal bearing No.96 of 1974 before the Lahore High Court, Multan Bench, Multan. Vide order dated 24.03.2005, the R.S.A. was dismissed for non-prosecution. The petitioners filed an application on 26.03.2005 for restoration of the appeal. However, vide Diary No.678, the office raised an objection that the affidavit attached with the application was not attested and gave two days time to remove the same. The office objection was not removed and the application was not re-filed for the next six years. Subsequently, C.M. No.1537-C of 2011 was filed on 22.09.2011. Along with the said application, C.M. No.1538-C of 2011 was also filed for condonation of delay. Both the applications were dismissed through the impugned order dated 21.01.2013. Hence, this petition.
4. The learned counsel for the petitioners submits that the High Court has erred in law in dismissing the applications for restoration and condonation of delay on the basis of technicalities rather than deciding the same on merits. He maintains that by reason of dismissal of the applications the petitioners have been deprived of their valueable rights in the suit property.
5. We have heard the learned counsel for the petitioners and gone through the record. It is clear and obvious from the record that when the R.S.A. was dismissed for non-prosecution on 24.03.2005, the petitioners had knowledge of the same and as such moved an application on 26.03.2005. In view of the fact that the affidavit attached with the application was not attested, the same was returned by the office granting two days time for removal of the office objection. It took the petitioners six years to remove the office objection and file C.M. No.1537-C of 2011. This time, however, an application for condonation of delay was also filed. Perusal of the said application shows that it neither explains the delay of six years in filing the application for restoration of the R.S.A. nor does it disclose any sufficient cause for condonation of such delay. The learned High Court was therefore quite justified in holding that the petitioners were neither serious nor vigilant in prosecuting the R.S.A.
6. The learned counsel for the petitioners has not been able to point out any illegality, jurisdictional defect, error or flaw in the impugned order of the High Court which may require interference by this Court in exercise of its jurisdiction under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973.
7. For reasons recorded above, this petition is dismissed and leave to appeal is refused.
MWA/G-17/SC Petition dismissed.