MUHAMMAD RAMZAN And Others vs HAJI And Another
This petition for leave to appeal arises from a judgment of the Lahore High Court dismissing the petitioners' application under Order XLI, Rule 21 of the Code of Civil Procedure 1908 for the rehearing of a regular second appeal that had been dismissed ex parte. The core legal question concerns whether sufficient cause was shown for the non-appearance of the petitioners' counsel and whether the delay in filing the rehearing application was condonable under Article 169 of the Limitation Act 1908. The Supreme Court held that in the absence of an affidavit from the petitioners' counsel himself, lack of knowledge regarding the date of hearing was not proved, and the application was rightly dismissed as time-barred. The key principle laid down is that the assertion of non-appearance due to a defective cause list must be substantiated by the personal affidavit of the counsel concerned to satisfy the requirements of sufficient cause and limitation.
- Whether an application for rehearing of an ex parte appeal is barred if filed beyond the period of limitation prescribed under Article 169 of the Limitation Act 1908?
- Is the personal affidavit of a counsel mandatory to prove lack of knowledge of a hearing date when seeking condonation of delay for non-appearance?
- Does the omission of a case from a cause list constitute sufficient cause for non-appearance under Order XLI Rule 21 of the Code of Civil Procedure 1908 without supporting evidence from the counsel?
- Order XLI Rule 21, Code of Civil Procedure 1908
- Article 169, Limitation Act 1908
ORDER
ASLAM RIAZ HUSSAIN, J.--The petitioners seek leave to appeal against the judgment of the Lahore High Court, dated 18th April, 1978, dismissing their Civil Miscellaneous Application (No. 450-C of 1977) under Order XLI, rule 21, C.P.C., for rehearing of their (R.S.A. No. 1031 of 1975) which had been dismissed ex parte.
2. The facts giving rise to this petition are briefly that the petitioners filed an (R.S.A. No. 103/1975). It came up for hearing before a learned Single Judge of the High Court on 22nd June, 1977. No one appeared on behalf of the petitioners. The learned Judge, therefore, heard it ex parte and announced the judgment on the next day (i.e. 23rd June, 1977). About 4 months later the petitioners filed an application for rehearing 'under Order XLI, rule 21 on 31st October, 1977, i.e. Much beyond the period of limitation. It was accompanied by an application for condonation of delay.
3. The reason put forward on behalf of the-petitioners for non--appearance of their counsel on the date of hearing was that the Cause List supplied to their counsel did not contain page No. 47, on which the appeal in question was printed. This plea was supported by the affidavits of Muhammad Nawaz, one of the applicants and Inayat Ali, the Clerk of their counsel. The learned counsel, however, did not himself file any affidavit to the effect that he had not come to know of the date of hearing of the appeal.
4. As for the filing of the aforementioned application beyond limitation it was urged that the applicants had no knowledge of the ex parte decree passed by the Court and that their case was, therefore, covered by Article 169 of the Limitation Act, which provides a period of 30 days for making an application for rehearing of an appeal.
5. These contentions did not find favour with the High Court, which dismissed the petitioners' application.
Hence the present petition.
6. The same contentions were pressed before us. But we are not inclined to agree with the same.
We are in respectful agreement with the High Court that in the absence of affidavit by the petitioners' counsel, the lack of knowledge of the date of hearing of the appeal, on his part, with the counsel is not proved and the case therefore, is covered by Article 169 of the Limitation Act.
The petition is dismissed for the foregoing reason.