JAMILA BEGUM and others vs ABDULLAH JAN and others

' A suit for possession of certain property by partition brought by the respondents was dismissed in default on 19-7-1989. The application filed by them for its restoration on 5-10-1989 was also dismissed as time-barred on 13-9-1992 by the learned trial Court. However, the appeal filed by the respondents was accepted by the learned Additional District Judge, Kohat on 2-2-1994 and the order of the learned Trial Court was set aside on payment of Rs,500 as costs and the case was sent to the Trial Court for further proceedings.. Feeling aggrieved the petitioners have filed this revision petition.

2. It was contended by the learned counsel for the petitioners that the application of the respondents was governed by Article 163 of the Limitation Act and having been brought after 77 days instead of 30 days was badly barred by limitation. It was further contended that the application for restoration of the suit having not been accompanied by an application for condonation of delay was not at all maintainable. Reliance was placed on M. Shafique Shah and another v. Mst. Irshad Begum and 8 others (1981 CLC 369) and Abdul Rahman and another v.

Mukhtar Ahmad and another (1985 CLC 1072).

3. The learned counsel for the respondents defended the impugned order by contending that the suit was dismissed on a date given by the Reader of the Court and not by the Presiding Officer, therefore, the application was governed by Article 181 of the Limitation Act and having been filed within a period of three years from the date of knowledge of the dismissal was well within time.

Reliance was placed on Muhammad Qasim and others v. Mouiuddin and others (1995 SCM R 218), wherein it was held that a date given by the Reader of the Court cannot be treated as a date of hearing, therefore, an order of dismissal passed on such a date for non-prosecution is a nullity in the eyes of law.

4. The contention raised by the learned counsel for the respondents has a definite edge over the arguments advanced by the learned counsel for the petitioners because the date on which the suit was dismissed for non-prosecution having been given by the Reader of the Court and not by the Presiding Officer cannot be treated as a date of hearing within the contemplation of Order 9, Rule 8, C.P.C. And as such the period of limitation is to be determined in the light of Article 181 and not Article 163 of the Limitation Act. In any event the cause for non-appearance highlighted in the application is a "sufficient cause" within the import of Order 9, Rule 9, C.P.C. As regards the authorities cited by the learned counsel for the petitioners it would suffice to say that there being no delay in filing the application for restoration of the suit there was no need to file an application for condonation of delay, and in any case the delay was condonable without a formal application in view of the well-known maxim that an act of Court shall prejudice no one. This revision petition is, therefore, dismissed. Parties to bear their own costs.