Law: Civil Procedure Code (V of 1908)

Section: O.XVII,R.2,O.IX,R.3

Law: Limitation Act, 1908

Section: 181,163

Civil Procedure Code (V of 1908)---O. XVII, R.2 & O.IX, R.3---Limitation Act (IX of 1908), Arts.181 & 163---Dismissal of suit for non-prosecution---Application for restoration---Limitation---Order of the Trial Court whereby the suit was dismissed for non-prosecution did not mention that the same was being dismissed under O.IX, R.3, C.P.C. but it was apparent that the Trial Court had proceeded under O.IX, R.3, C.P.C.---Article 181 of the Limitation Act, 1908, in circumstances, was not attracted and courts correctly applied Art.163 of the Limitation Act, 1908 while considering the application for condonation of delay in moving the application for restoration of the suit---No ground, in the present case, had been made out for condoning the delay in filing of the application for restoration of suit---Issue of limitation lost its importance when party had failed to show any cause for his absence and that of his counsel on the relevant date---Even otherwise, the court was not bound to restore the suit merely because the restoration application was within time. Hassomal Tillumal v. Ghulam Nabishah AIR (36) 1949 Sind 26, Messrs Rehman Weaving Factory (Regd.), Bahawalnagar v. Industrial Development Bank of Pakistan and Punjab Small Industries Corporation, Lahore PLD 1981 SC 21 and Yousaf Raza Hussain v. The IVth Additional District Judge South, Karachi and others 1987 MLD 2989 distinguished. JUDGMENT M. JAVED BUTTAR, J.---On 24-12-2003 appellant filed a suit for specific performance of an agreement to sell dated 20-12-2002 against his sister Mst. Shagufta Sharif who died during the pendency of the suit and is now represented by her son Fahad (respondent No.1). During the progress of the suit, ex parte proceedings were ordered against her and the case was being adjourned for recording evidence of the appellant but the appellant became absent and the suit was dismissed for non-prosecution on 13-12-2006. On 11-10-2007, he filed an application for restoration of suit along with an application for condonation of delay. Both the applications were contested and were dismissed by the learned trial Court on 17-1-2008. However, Revision Petition, filed by the appellant,…

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