P L D 1968 Lahore 1224


Before Muhammad Siddiq, J


SAWAB KHAN‑Petitioner






Second Appeal from Order No. 36 of 1968, decided on 1st July 1968.


Iqbal Ahmad v. Mst. Sharifun Nisa P L D 1967 Lah. 1098; Devi has v. Anant Ram 91 I C 168 arid Bissa Mal v. Kesar Singh A I R 1920 Lah. 309 rel.




Doctor Abdul Hamid respondent had made an applica tion against the petitioner before the Rent Controller for his ejectment from a portion of the plot in dispute on the ground of default in payment of rent. The tenancy was denied by the petitioner and it was pleaded that the provisions of the West Pakistan Urban Rent Restriction Ordinance of 1959, did not apply to the case. The Rent Controller came to the finding that the relationship of landlord and tenant was not established between the parties and dismissed the application. The respondent‑landlord went in appeal, which was accepted by the Additional District Judge, Lahore, and the case was remanded to the Rent Controller for proceeding according to law. The petitioner‑tenant came in second appeal and challenged the finding of the learned Additional District Judge with regard to the relationship of landlord and tenant between the parties. The records were summoned for 14‑2‑1968. They were not received on that date and were resummoned for 19‑3‑1968, status quo was ordered to be maintained till that date. It appears from the application under consideration that the case could not be taken up on 19‑3‑1968, as the petitioner’s counsel was not present and was adjourned without date. The appeal then came up on 4‑4‑1968, and was dismissed for nun‑prosecution. The petitioner (appellant) has made the present application under Order XLI, rule 19, C. P. C. for the appeal being readmitted to hearing.


2. The allegations made in the application are that the case could not be taken up on the 19th of March 1968, as the petitioner’s counsel was not present, that the petitioner had been coming regularly to the peshi Branch of the High Court to know as to when ibis case was to be fixed for hearing, that he never came to know that his case was to come up on the 4th of April 1968 and came to know of the dismissal of the appeal on the 5th of May 1968, when he was appearing in a connected matter in the Court of the District and Sessions Judge, Lahore, where he came to know that the order for stay had been vacated. Since the petitioner (appellant) was duly represented by a counsel, and according to the rules of tile High Court notice to a counsel is deemed to be sufficient if the matter is duly listed for a particular date, an adjournment was allowed to enable the counsel to say as to why the case should not be deemed to have been taken up on the 4th of April 1968, after doze notice. Learned counsel appearing on the 3rd of June 1968, filed an application, dated the 31st of May 1968, which is, in sub stance, a repetition of the earlier application (C. M. No. 2‑C/68) and does not indicate why he, should not be deemed to have been duly served for the 4th of April 1968, when the case was duly listed for that date. It is important to note that the order of dismissal for non‑prosecution bad been made on the 4th of April 1968, while the present application (C. M. No. 2‑C/68) made for the re‑admission of the appeal was made on the 7th of May 1968, and is out of time by three days. According to Article 168 of the First Schedule to the Limitation Act, the period allowed for an application for reaa1mission of an appeal dismissed for want of prosecution is thirty days from the date of the dismissal. This period cannot be extended under section 5 of the Limitation Act as the said section is not applicable to an application made for re‑admission of an appeal dismissed for want of prosecution. Nor can section 151, C. P. C. be properly used to allow to the applicant an extension in the period of limitation. This section cannot be used to defeat the provisions of Article 168 of the First Schedule to the Limitation Act read with sections 3 and 5 of the said Act. Where due notice of the date fixed for the hearing had been given according to the High Court Rules and the appellant was absent on the date fixed, the orders of dismissal of the appeal cannot be said to be void ab initio and the provisions of section 151, C. P. C. cannot, in such circumstances be commandeered into service. Chapter III of the Rules and Orders of this Court, Vol. V, deals with “Rules regulating the practice of the High Court in the hearing of causes and other matters,” rule 5 deals with the “weekly and daily lists of cases and their adjustment” and rule 8 in this Chapter lays down that “parties and their Advo cates, Vakils, Mulshtars or Agents are required to attend the Court on the day or days for which their cases are set down, and on subsequent days until their cases are disposed of or are postponed, . . . . .” The only exception to this general requirement of the rule is whether a certain party is unrepresented by a counsel or whether the counsel representing a party is not ordinarily residing in Lahore. In the instant case, the appellant was represented by a counsel, who is ordinarily residing in Lahore. The case had been duly listed for the 4th of April 1968, and the orders of dismissal passed on that day on account of the non‑appearance of the appellant or his counsel cannot be said to be void ab initio. The latest authority of this Court on this point is Iqbal Ahrn.zd v. Mst. Sharifun Nisa (P L D 1967 Lah. 1098). The same propositions were laid down in Devi Das v. Anant Ram (91 I C 168), which is also a Lahore case. Another Lahore case laying down the same propositions is Bissa Mal v. Kesar Singh (A I R 1920 Lah. 309). The negligence of the appellant’s counsel to notice the case in the lists will not be sufficient to extend the period of limitation or be treated as sufficient cause for the re‑admission of the appeal. In the circumstances, this application, which is out of tune, is dismissed in limine.


A.E. Application dismissed.


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