ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
C.P. No.S-940 of 2016
Abdul Aziz
Versus
Dr. Nizamuddin Ghori & others
A N D
C.P. No.S-941 of 2016
Abdul Ghaffar & another
Versus
Dr. Nizamuddin Ghori & others
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Date |
Order with signature of Judge |
Date of hearing: 12.04.2018
Mr. Naseebul Hassan Siddiqui for petitioners in both the petitions.
Mr. Adnan Usman for respondent No.1 in both the petitions.
Mr. Abdul Jaleel Zubedi, AAG.
-.-.-
Muhammad Shafi Siddiqui, J.- These two petitions are arising out of orders passed by IV-Additional District Judge Karachi Central in FRA No.229 and 230 of 2012 in terms whereof the applications filed by petitioners for recalling order of dismissal of FRAs for non-prosecution and for condonation of delay in filing such application were dismissed. Since facts of both the petitions are same, I propose to dispose of them with a common order.
Record reveals that the aforesaid two appeals were admitted on 02.11.2012 and after service respondent appeared and filed objections. It remain pending for hearing and consequently since appellants failed to pursue the same were dismissed for non-prosecution on 04.09.2014 whereafter petitioners preferred application under section 151 CPC for restoration of the appeals for recalling order dated 04.09.2014. Along with restoration applications, affidavits of petitioners and an application under section 5 of the Limitation Action for condonation of delay were also filed. The application were heard and dismissed on both the counts i.e. the application being barred by time and having no sufficient and satisfactory grounds for restoration.
Petitioners’ counsel has raised contention that insofar as the limitation is concerned since case is governed by special law and since Section 29 of the Limitation Act does not distinguish proceedings before the Court or a Tribunal as such it could be applied before the proceedings under special law including Tribunal and hence provisions of Section 5 of the Limitation Act cannot be ignored.
Insofar as merit is concerned sufficient grounds for restoration of FRAs were shown as alleged. Learned counsel for petitioners contended that on account of the health and the incident, as disclosed in the supporting affidavits (as someone has thrown acid on petitioner’s son), it was not possible for the petitioners to have contacted their advocate and neither the advocate contacted the petitioners.
Counsel appearing for the respondents have refuted the contentions, as raised by the petitioners’ counsel, relied upon the record and supported the impugned orders.
I have heard the learned counsels and perused the material available on record.
At the very outset insofar as applicability of Section 5 of the Limitation Act is concerned, the case of Yousuf v. Faisal Karim reported in 1983 CLC 2219 has laid down the consideration for the applicability of such provisions and the litmus test provided by the Bench was that Section 29 of the Act provides no distinction between the proceedings before a Court or Tribunal and as such provisions of the Act were made applicable to the proceedings under special law. Learned Judge held that period of limitation for filing appeal before High Court under the Ordinance is different to that in the Schedule to the Limitation Act and as such provisions of Section 29(2)(a) for restoration of appeal under the Ordinance made applicable and is not hit by provisions of Article 168 and hence Article 181 was made applicable as being residuary article for availing remedy for restoration of the appeal. Similar view was taken by another Bench in the case of Pakistan Handicraft v. Pakistan Industrial Development Corporation reported in 2010 CLC 232. I am in agreement with the reasoning provided by the two Benches in the aforesaid cases as there is no distinction available in terms of Section 29 of the Limitation Act and the residuary article being rightly applied by the learned Benches. Besides, the present statute is silent to cater the remedy.
However, the appellate Court while dismissing the application has not only dismissed it on the count of Limitation Act but also on the count that there were no sufficient grounds available for restoration of appeal even if the contents of the affidavits were taken into consideration.
The incident on the basis of which restoration was sought had taken place on 30.07.2013 for which FIR was lodged on 31.07.2013 whereas the appeal was dismissed on 04.09.2014 i.e. after more than a year. The application for restoration was filed on 02.03.2016. There is no affidavit of the counsels who were appearing for the appellants in support of application for restoration and condonation of delay. It was only the petitioners who filed affidavits in support of such applications. The applications were filed after almost 1½ year. Nobody disputes the incident insofar as son of one of the petitioners (Abdul Aziz) is concerned. However there is nothing to prevent petitioner either enquiring from the counsel or approaching the Court directly, particularly for petitioner No.1 in CP No.S-941 of 2016. This is lethargic and negligent approach and attitude on the part of the petitioners, which gets no support from law.
The record further reveals that compromise application in pursuance of the aforesaid FIR was also filed in November, 2014. Such compromise applications in Sessions Case No.782 of 2013 are available at page 175. If the petitioners could appear in aforesaid Sessions Case No.782 of 2013, after 1 year and 4 months as the applications were filed on 22.11.2014, there was nothing to prevent them to enquire about the subject FRAs which were dismissed on 04.09.2014 and the restoration applications of which were filed after almost 1½. Reasons mentioned in the supporting affidavit for restoration of appeal were not inspiring confidence..
Insofar as FRA No.230 of 2012, which is subject matter of CP No.S-941 of 2016, is concerned there is nothing in support of affidavit except that the counsel was not able to appear due to his illness. No record of his illness was shown. Such grounds, as available to the petitioner in CP No.S-940 of 2016, were not available to the petitioners in this petition, as petitioner No.1, who is real brother of petitioner No.2 (petitioner in CP No.S-940 of 2016), could pursue the matter and hence has no better case than the one in the other petition.
I, therefore, do not see any reason to interfere in the orders of the appellate Court who has dismissed the applications however insofar as applicability of Limitation Act is concerned, since I have disagreed, I gave my separate reasoning, however the order of the appellate Court, is maintained insofar its ultimate dismissal is concerned.
Dated: Judge