IN THE IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Civil Revision Appln.No.11 of 2015
Applicants : Ghulam Sarwar through LRs.
Through Mr.Faiz Muhammad Larik, Advocate
Respondents : The State Mr.Ali Raza Pathan, State Counsel
None for private respondent,
Date of hearing : 01.11.2018
Date of order : 01.11.2018
O R D E R
IRSHAD ALI SHAH, J.-The facts in brief necessary for disposal of instant civil revision application are that Appeal No.55/2006 was filed by applicant Ghulam Sarwar. It was pending adjudication before learned 3rd Additional District Judge, Dadu. It was dismissed for non prosecution on 26.03.2011. On 05.06.2013, the restoration of the said appeal was sought for by legal heirs of said Ghulam Sarwar by way of filing an application under order 41 Rule 19 CPC. In order to condone delay in filing such application, they also filed an application u/s. 5 of the Limitation Act. The restoration of the appeal was declined by learned Appellate Court by making an observation that it is time barred vide its order dated 30.01.2015. The applicant being aggrieved of above said order of learned Appellate Court has impugned the same before this Court, by way of instant civil revision application.
2. It is contended by learned counsel for the applicants that the appeal was being perused diligently by applicant Ghulam Sarwar, he could not attend the learned Appellate Court timely being ill, consequently, his appeal was dismissed for non prosecution, subsequently, he also died, his legal heirs on having come to know of dismissal of above said appeal for non prosecution, sought for its restoration by filing such application but it was dismissed. By contending so, he sought for setting aside of the impugned order with direction to the learned Appellate Court to hear and decide the appeal of the applicants on merits, as according to him, it involves adjudication of valuable rights of the applicants.
3. It is contended by learned State Counsel that the restoration of the appeal was sought for after two years, learned trial Court by refusing to restore the appeal has committed no illegality, which could be made right by this Court. By contending so, he sought for dismissal of instant civil revision application.
4. I have considered the above arguments and perused the record.
5. If applicant Ghulam Sarwar could not attend the learned Appellate Court being ill, then he was under lawful obligation to have intimated the learned Appellate Court about his illness through his agent or counsel. It was not done by him, for no obvious reason, which appears to be significant. If for the sake of arguments, it is believed that after dismissal of his appeal for non prosecution, applicant Ghulam Sarwar died of his natural death then it was for his legal heirs to have sought for restoration of appeal within time by making such application. It was not done by them for, no obvious reason. They slept over their cause for more than two years without any lawful justification and then sought for restoration of the appeal without accounting for the limitation. In that situation, the learned Appellate Court was right to make refusal of for condoning delay in filing of application for restoration of the appeal, because on expiry of period of limitation, the valuable right is created in favour of other side.
6. In case of Khushi Muhammad through legal heirs vs. Mst.Fazal Bibi and others (PLD 2016 SC-872), it has been observed by the Honourable Court that;
“(ii) The hurdles of limitation could not be crossed under the guise of any hardships or imagined inherent discretionary jurisdiction of the Court. Ignore, negligence, mistake or hardship did not save limitation, nor does poverty of the parties”.
7. In view of the facts and reasons discussed above, it could be concluded safely that; the learned Appellate Court has committed no illegality while passing the impugned order, which could be made right by this Court by way of instant civil revision application; it is dismissed accordingly, with no order as to cost.
J U D G E
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