ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

HCA No. 471 of 2006

Date Order with signature of Judge

For hearing of CMA No.634/2009.

18^th January, 2010.

Mr. Maqbool-ur-Rehman, Advocate for the appellant.

Mr. Shaiq Usmani, Advocate for respondent.

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GULZAR AHMED, J.:- This is an application under Order XLI Rule 19 read with Section 151 CPC seeking restoration of the appeal which was dismissed for non-prosecution vide order dated 24.3.2009. The application was filed on 24.4.2009 with supporting affidavit of only appellants’ counsel. The respondent No.1 has filed counter affidavit.

The only ground urged by appellants’ counsel in support of the application is that on 24.3.2009 he was busy before the Circuit Court Hyderabad of this Court and therefore could not attend this case on that date.

On the other hand, counsel for respondent No.1 has vehemently opposed the application and submitted that no sufficient ground has been urged for restoration of the appeal and even otherwise application is time barred and the provision of Section 5 of Limitation Act being not applicable, the application is also liable to be dismissed as barred by time and in support of his such submission has relied upon the case of MUBIN AHMED V/S SAEED AHMED (1989 MLD 3989).

We have considered the submission made by learned counsel and have gone through the record.

The order dated 24.3.2009 by which the appeal was dismissed for non-prosecution is reproduced as follows:-

“ None present for appellant.

Mr. Shaiq Usmani, Advocate for respondent.

On 13^th January 2009, when appellants and their counsel were called absent, Mr. Shaiq Usmani made a statement that Mr. Munir-ur-Rehman has informed him that Mr. Munir-ur-Rehman had already served notice upon the appellants to withdraw his vakalatnama. As appellants were called absent, the appeal was dismissed in default for non-prosecution. An application for restoration of the appeal was filed, on which date Mr. Maqbool-ur-Rehman appeared and undertook to file vakalatnama on behalf of the appellant. The appeal was restored for hearing subject to deposit of Rs. 5000/- as cost and the matter was adjourned to 04.03.2009. On 04.03.2009 when the matter was called, Mr. Maqbool-ur-Rehman learned advocate for the appellants attended the hearing alongwith vakalatnama and when he was called upon to argue the matter, he expressed his inability. Just as an indulgence hearing was adjourned to 05.03.2009. On 05.03.2009 again a request for adjournment was made on behalf of Mr. Maqbool-ur-Rehman on the ground that he was not well and matter was adjourned to 24^th march 2009 with specific direction that on the above date, no further adjournment will be granted and if for any reason Mr. Maqbool-ur-Rehman advocate is not in a position to proceed with the matter then appellants should made alternate arrangement.

Mr. Masood-ur-Rehman, advocate holding brief for Mr. Maqbool-ur-Rehman made a request for adjournment on the ground that the latter is busy before Circuit Court at Hyderabad, which request for adjournment was opposed by Mr. Shaiq Usmani, learned advocate for the respondent.

As specific direction was given that no further adjournment will be granted and if for any reason Mr. Maqbool-ur-Rehman advocate is not in a position to proceed with the matter then the appellants should make alternate arrangement, we have called upon Mr. Masood-ur-Rehman, advocate who is also associate of Mr. Maqbool-ur-Rehman to argue the matter, he also expressed his inability.

Since we have already directed that no further adjournment will be granted and learned advocate for the respondent opposed the request for adjournment, we have left with no option but to dismiss the appeal for non-prosecution.”

It may be noted that while the matter was adjourned to 24.3.2009, the Court had categorically ordered that on the next date further adjournment will not be granted and if for any reason Mr. Maqbool-ur-Rehman, Advocate is not in a position to proceed with the matter, the appellant should make alternate arrangement. Incidentally, Mr. Maqbool-ur-Rehman, Advocate did not appear in Court on 24.3.2009 nor any alternate arrangement was made by the appellants rather again a request for adjournment was made on behalf of appellants which was not accepted by the Court and the counsel holding brief for the appellants’ counsel, who being his associate, was asked to argue the matter but he expressed his inability to proceed with the matter, therefore, the appeal was dismissed for non-prosecution. It may be noted from the above quoted order dated 24.3.2009 that the appeal has previous history of dismissal for non-prosecution and restoration.

Despite Court order dated 05.3.2009, where it was categorically noted that it will not grant any further adjournment and in case Mr. Maqbool-ur-Rehman is not available, the appellants should made alternate arrangement, Mr. Maqbool-ur-Rehman remained absent and appellants also did not make any alternate arrangement for proceeding with the appeal on 24.3.2009. The conduct of the appellants and counsel apparently left no choice with the Court but to dismiss the appeal for non-prosecution.

The appellants’ counsel in his affidavit, filed in support of application, has stated that on 24.3.2009 he was busy before Circuit Court Hyderabad. He has not given the case number nor the copy of cause list nor intimation notice, which he may have received, for hearing of the case at Circuit Court Hyderabad on 24.3.2009. Such particulars were not provided by the counsel even during the course of hearing today. In the absence of all these particulars mere assertion of appellants’ counsel of his engagement on 24.3.2009 at Circuit Court Hyderabad cannot be accepted. No other reason has been given for his not attendance before this Court on 24.3.2009. In the circumstances no sufficient cause has been made out for granting of the application.

The appellants’ counsel during the course of hearing has admitted that he came to know of dismissal of this appeal for non-prosecution on the very next date that is 25.3.2009. The application for restoration of the appeal was, however, filed by him on 24.4.2009. Under Article 168 of Limitation Act the application for restoration of the appeal, dismissed for non-prosecution, has to be filed within thirty days from the date of dismissal and not from the date of knowledge.

Though by Sub-Rule (2) of Rule 19 of Order XLI CPC, Section 5 of Limitation Act was made applicable to the application for restoration of the appeal, dismissed for non-prosecution, but the appellants had not filed any such application nor any explanation whatsoever given by the counsel for the appellants for the delay in filing of the application. It is established law that when the application is filed out of time, the party filing such application has to explain each day of delay; more-so, when valuable rights by efflux of time occurs to the opposite party. The conduct of the appellants and their counsel has altogether been casual and of severe negligence to which no premium can be given. There being no explanation whatsoever for not making application in time or for delay in making application, we also find this application to be time barred. For the fore-going reasons the application is rejected.

J U D G E

Aamir/PS