ANWAR KAMAL vs MUHAMMAD HUSSAIN through Legal Heirs and others
This petition for leave to appeal was filed against the order of the Lahore High Court, which dismissed the petitioner's application for the re-admission of a Regular Second Appeal (R.S.A.) that had been dismissed for non-prosecution. The petitioner's counsel argued that he was busy before other Benches on the day of the dismissal and that the case was listed low on the cause list, leading to an expectation that it would be heard later. The Supreme Court of Pakistan examined whether the High Court erred in refusing to restore the appeal under Order XLI Rule 19 of the Code of Civil Procedure 1908. The Court held that the petitioner failed to provide sufficient cause for restoration, noting that the application lacked details or certified copies of order sheets proving the counsel's engagement before other Benches. Furthermore, the petitioner delayed filing the restoration application for approximately seven months. Consequently, the Supreme Court found no merit in the petition and declined leave to appeal.
- Whether a restoration application under Order XLI Rule 19 of the Code of Civil Procedure 1908 can be allowed without providing specific details or documentary proof of counsel's engagement before other Benches?
- Does a delay of seven months in filing an application for the re-admission of an appeal dismissed for non-prosecution, without sufficient explanation, justify the dismissal of such application?
- Order XLI Rule 19, Code of Civil Procedure 1908
- Section 151, Code of Civil Procedure 1908
ORDER
' IFTIKHAR MUHAMMAD CHAUDHRY, J.---This petition for leave to appeal has been filed against order, dated 11th June, 1999 passed by Lahore High Court, Lahore whereby Civil Miscellaneous Application No,1-C of 1999 for the admission of R.S.A. No,217 of 1981 has been dismissed.
2. Precisely stating facts of the case are that respondents Nos.1 and 2 filed a suit for specific performance against the petitioner and five others. The petitioner contested the suit by filing written statement. On pleadings of parties issues were framed and after recording evidence learned Civil Judge decreed the suit vide judgment/decree, dated 26-2-1974. Petitioner filed appeal before Additional District Judge, Faisalabad which was also dismissed by means of judgment/decree, dated 26-9-1981. The petitioner being aggrieved from the judgment/decrees of both the Courts below preferred Regular Second Appeal before Lahore High Court, Lahore which came up for hearing on 25-11-1998 when it was dismissed for non-prosecution. The petitioner filed Civil Miscellaneous Application No,1-C of 1999 for re-admission of appeal under Order XLI, rule 19 read with section 151, C.P.C. Learned Judge in Chambers of High Court dismissed the application vide impugned order, dated 11th June, 1999. As such instant petition has been filed for leave to appeal.
3. Learned counsel stated that on 25th November, 1998 when R.S.A. No,217 of 1981 was dismissed for non-prosecution he was busy before other Benches in different cases. Even otherwise this case was listed at S. No,40, therefore, he was under the impression that it will be taken up for hearing in late hours of the day but in his absence the appeal was dismissed and the application for re- admission of appeal under Order XLI, rule 19, C.P.C. Was also dismissed without issuing notice to the other side. According to him the petitioner has a prima facie arguable case, therefore, learned High Court may have decided the matter on merits after restoring the same.
4. We are not inclined to agree with the contention of the learned counsel firstly for the reason that in the application submitted under Order XLI, rule 19, C.P.C. Neither any details of the cases in which learned counsel for the petitioner has appeared nor the certified copies of the order sheets from the Benches before he had been appearing were appended and secondly he has not shown keen interest for restoration of appeal because the same was dismissed on 25th November, 1998 whereas application for its re-admission was filed after about 7 months in the month of June, 1999.
In such circumstances we are of the opinion that the learned Judge in Chambers of the High Court was right in dismissing the application.
' Thus for the foregoing reasons the petition is dismissed and leave declined.