PLJ 2010
Present: Ahmed Khan Lashari,
J.
CHAIRMAN EVACUEE TRUST PROPERTY BOARD,
GOVERNMENT OF
versus
PRESIDENT OF
and another--Respondent
Civil Misc. Appln. Nos. 220 & 221 of 2009, in C.R. No. 176 of 2005, decided on
20.7.2009.
Condonation of delay--
----Must explain delay of each and every
day--Application for restoration of petition was dismissed in default and for
non-prosecution as well as condonation of delay in
filing application for restoration of the petition--No explanation was
mentioned--Validity--The person seeking condonation
of delay, must explain delay of each and every day to the satisfaction of the
Court and should also establish that the delay has been caused due to reason
beyond his control--When delay in filing application is seemingly due to mere
negligence and careless of the applicant, who failed to pursue his case with
due diligence, than he is not entitled to any indulgence by the
Court--Applications were dismissed. [P.
13] B
Limitation Act, 1908 (IX of 1908)--
----Art. 181--Civil Procedure Code, (V of
1908), S. 115--Restoration of civil revision petition--Applicability of
limitation--Contention--No specific provision of law for filing application,
seeking restoration of civil revision--Validity--High Court in exercise of
inherent jurisdiction u/S. 115, CPC, might restore the petition and that Art.
181 of Limitation Act, would apply in the case, which
provides a period of three years for filing of application for restoration of
the petition, dismissed in default. [P.
13] A
2004 SCMR 387 ref.
M/s. Kamran Murtaza & Abid Mehmood,
Advocates for Applicants.
Mr. Sundar Dass, Advocate for Respondent No. 1.
Date of hearing: 29.6.2009.
Judgment
The applicants have filed Civil Misc: Applications No.220 & 221 of 2009, wherein prayer
has been made for recalling of order dated 23.05.2008 and restoration of
petition, dismissed in default and for non-prosecution as well as condonation of the delay in filing application for
restoration of the petition.
2.
Respondents President, Hindu Panchayat, Quetta and Dr. Tara Chand, the
then Member, Provincial Assembly, Balochistan, Quetta, filed a suit for declaration and injunction against
applicants Chairman, Evacuee Trust Property Board, Government of Pakistan,
Lahore and Assistant Administrator, Evacuee Trust Property Board, Quetta, with the averments that xArya
Samaj Mandir' bearing
Municipal No. 2-37/10-A, situated at Masjid Road, Quetta, falling under Khasra No.
4320, measuring 9145 sq.ft. consisting
of four rooms with prayer halls, is in the use of Panchayat.
The property was declared to be of religious purposes by the Evacuee Department
and had no nexus with the Evacuee Trust Board, but still the applicants were
interfering in the property, compelling the respondents to institute the suit.
The suit was contested and the trial
Court, after framing issues and recording evidence, vide judgment dated
05-04-2004 dismissed the suit, against which appeal was filed and the
Additional District Judge-V, Quetta vide judgment
dated 26-02-2005 allowed the appeal and the respondents' suit was decreed. The
applicants, being dissatisfied with the judgement/decree,
filed Civil Revision Petition before this Court, which was admitted for regular
hearing on 29-05-2005. Subsequently, due to non-appearance of the applicants as
well as their counsel, petition was dismissed in default and for
non-prosecution on 23-05-2008, hence, these applications.
3.
M/s. Kamran Murtaza
and Abid Mehmood, learned
counsel for applicants, contended that the petition was dismissed in default
and for non-prosecution on account of absence of Mr. Abid
Mehmood, Advocate, who due to illness of his brother
had left for Lahore on 17.05.2008, where his brother expired on 23-05-2008,
therefore, the absence of the counsel was neither deliberate, nor intentional.
It was argued that though application has been filed with a delay, but
sufficient cause has been disclosed and this Court has the powers to condone
the delay. It was also contended that though specific provision has not been
provided for filing application for restoration of the petition dismissed in
default, still there is application for condonation
of the delay with reasonable ground. They, in support of their arguments
referred the judgements-reported in 1971 SCMR 740,
PLD 1997
4.
Mr. Sundar Dass,
learned counsel for Respondent No. 1, submitted that the application has been
filed almost after a lapse of about one year, without disclosing any sufficient
cause or reason, thus, applications be dismissed. He, in support of his
arguments referred the judgments-reported in 2004 SCMR pages 387-615 and PLJ
1994
5.
I have heard learned counsel for the parties and have gone through the
reported judgments cited as well as record. The petition was dismissed in
default and for non-prosecution on 23-05-2008, while the applications, seeking
restoration of the petition as well as condonation of
the delay, have been filed on 04-03-2009. The plea raised in the applications
is that the counsel (Mr. Abid Mehmood,
Advocate) on account of sudden illness of his brother had left for Lahore on
17.05.2008, where his brother expired on 23-05-2008, but the counsel has failed
to explain the period from 24-05-2008 to 04-03-2009 (more than nine months) for
non-approaching the Court or for non-appearance of the applicants in the
matter. The applicants as well as their counsel slept over and filed the
applications with the delay, without disclosing the reasons beyond their
control.
6.
The counsel for applicants referred the judgment-reported in PLD 1997
Peshawar 55, wherein the suit pending before the trial Court was dismissed in
default and for non-prosecution, against which an appeal was filed, whereby the
suit was restored on payment of Rs.5000/- as cost and in civil revision
petition, the order was not interfered with. The other judgments-reported in
1971 SCMR 740 and 2004 SCMR 400, are also not on the point involved in the
matter.
7.
On the other hand, counsel for Respondent No. 1 stressed that the
applicants have failed to point out any sufficient cause or reason so that the
delay occurred in filing the application be condoned. The judgment, relied upon
by the counsel, reported in 2004 SCMR 615, is clear on the point; the relevant
portion thereof is reproduced herein below:
"It was the case of the petitioners
before the High Court that their learned counsel was present before the Bench
on 30.09.1999 and that the said learned counsel left the Court-room to appear
before another learned Bench and it was on his return that he found that the
said revision petition had been dismissed for non-prosecution. If this was so,
then there is no explanation as to what had taken the petitioners almost four
months to make an application for restoration of the said revision petition. In
these circumstances we find no reason to interfere with the discretion
exercised by the High Court in passing the impugned order."
8.
The counsel for applicants submitted that there is no specific provision of law
for filing application, seeking
restoration of Civil
revision petition, thus, the Court, in exercise of inherent jurisdiction
conferred under Section 115 CPC, may restore the petition and that Article 181
of the Limitation Act would apply in the case, which provides a period of three
years for filing of applications for restoration of the petitions, dismissed in
default. The Hon'ble Supreme Court, while dealing
with the point in hand, in the case of Said Ali vs. Safdar
Ali and others reported in 2004 SCMR 387 has held that:
"Contention of petitioner that no
period of limitation was prescribed for restoration of civil revision and thus,
he could move application within three years, was not
accepted being not in consonance with letter and spirit of law."
It is set principle of law and the
superior Courts time and again held that the person, seeking condonation of delay, must explain delay of each and every
day to the satisfaction of the Court and should also establish that the delay
has been caused due to reason beyond his control. When the delay in filing
application is seemingly due to mere negligence and careless of the applicant,
who failed to pursue his case with due diligence, then he is not entitled to
any indulgence by the Court.
What has been discussed hereinabove, the
applications, being devoid of any merit, are dismissed.
(R.A.) Applications
dismissed.