1985 S C M R 1334
Present: Aslam Riaz Hussain and Shafiur Rahman, JJ
MUHAMMAD RAMZAN and others‑‑Petitioners
Versus
HAJI and another‑‑Respondents
Civil Petition for Special Leave to Appeal No. 625 of 1978, decided on 18th February, 1985.
(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 18th April, 1978, in R.S.A. No. 1031 of 1975).
Pervaiz Akhtar, Advocate Supreme Court and Salahuddin, Advocate‑on‑Record for Petitioners.
Iftikhar Dar, Advocate Supreme Court and S. Abid Nawaz, Advocate‑on‑Record for Respondents.
Date of hearing: 18th February, 1985.
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.
M. I. Petition dismissed.
