Law: Civil Procedure Code (V of 1908)

Section: O.XLI,19

Law: Limitation Act, 1908

Section: 168,5

Civil Procedure Code (V of 1908)--- ----O. XLI, R. 19---Limitation Act (IX of 1908), Art. 168 & S. 5---Appeal, restoration of---Limitation---Sufficient cause---Discretionary relief---Scope---Appeal was dismissed for non-prosecution against which an application for restoration was moved which was also dismissed---Contention of appellant was that he remained ill---Validity---Appellant remained absent on various dates of hearing and Appellate Court was left with no option but to dismiss the appeal---Application for restoration of appeal was filed after delay of 4 months but no document was produced with regard to illness of appellant---Appellant had not taken due care and had not been vigilant to pursue his appeal---Grant of restoration application was discretionary relief which was subject to sufficient cause---Discretion had to be exercised in favour of a party who had been vigilant and had due respect to the order of court---Appellant did not deserve discretionary relief in absence of plausible and cogent reason---Period for filing an application for restoration of appeal was 30 days---No application for condonation of delay had been moved in the present case---Delay beyond limitation period would create a right in favour of opposite party---Appeal was dismissed in circumstances. Lal Dino v. Deputy Commissioner 1982 SCMR 201 and Mst. Halima Tahir v. Mst. Naheed Ejaz 2010 MLD 554 rel. JUDGMENT MUHAMMAD EJAZ SWATI, J.--This civil appeal has been directed against the order dated 12th July 2013 and 13th February, 2013 (hereinafter referred as to "the impugned orders"), passed by the Additional District Judge-IV, Quetta (hereinafter referred as to "the appellate Court"), whereby, application filed by the appellant for restoration of his appeal was dismissed and judgment and decree dated 14th September 2012 (hereinafter referred as to "the impugned judgment and decree"), passed by the Judicial Magistrate-IV/Civil Judge, Quetta (hereinafter referred as to "the trial Court"), whereby, the suit for easement right filed by the appellant was dismissed. 2. The facts rising out of this appeal are that the appellant/plaintiff filed a suit on the basis of easement rights…

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