Limitation and Restoration of Case Dismissed Due to Non-Prosecution

Limitation and Restoration of Case Dismissed Due to Non-Prosecution Case Laws Civil Law Civil Revision Knowledge - Civil Law Lahore High Court Limitation Solutions - Civil Law Mr. Justice Shahid Mubeen in his judgment has decided the issue regarding limitation and restoration of case dismissed due to non-prosecution in Civil Review No. 835 of 2015.

1. The petitioner has called into question the legality and validity of order dated 09.07.2015 whereby the application of the petitioner u/s 12(2) CPC was dismissed due to non-prosecution and order dated 02.09.2015 whereby application of the petitioner to set-aside the order dated 09.07.2015 was also dismissed being time barred passed by respondent No.2

2. Briefly stated the facts of the case are that petitioner was tenant under respondent No.1 qua a shop at Railway Carriage Factory, Shopping Centre, Dhoke Hasu, Rawalpindi for the business of photo studio at the rate of Rs.5000/- per month as rent and security amount has also been deposited by the petitioner to respondent No.1 at the time of taking possession of said shop. The petitioner had paid rent of the shop regularly through cheque No.9659078 amounting to Rs.11,000/- and cheque No.9659079 amounting to Rs.8000/- to the respondent No.1 but he with malafide intention by tempering the cheque No. 9659078 mentioned the amount Rs.211,000/- in place of Rs.11,000/- and registered an FIR No.28 dated 27.01.2011 offence under Section 489-F, Police Station Gunjmandi, Rawalpindi against the petitioner and the petitioner remained in jail due to said FIR. The petitioner filed an application for opinion of hand writing expert before learned Judicial Magistrate, Rawalpindi on 10.05.2011 which was dismissed as the compromise was affected between the parties and the petitioner was acquitted from the charge.

The petitioner again started his shop under the tenancy of respondent No.1 and civil litigation regarding shop was also remained pending between the parties which was come to an end in shape of withdrawal of suit as well as appeal on the basis of compromise between the petitioner and respondent No.1. The petitioner was informed through his counsel that an execution petition regarding judgment and decree dated 15.01.2013 passed by learned Additional District Judge, Rawalpindi was pending adjudication before learned Additional District Judge, Rawalpindi. The petitioner filed an application u/s 12(2) CPC which was admitted and the operation of judgment and decree dated 15.01.2013 was suspended by the learned Additional District Judge, Rawalpindi vide order dated 17.03.2014.

On 28.05.2015 the case was transferred to the Court of respondent No.2 and next date was given as 09.07.2015 which was due to misunderstanding was noted as 16.07.2015 by the learned counsel for the petitioner and on 09.07.2015 the case was dismissed due to non-prosecution. The petitioner filed an application for setting aside order dated 09.07.2015 which was dismissed by respondent No.2 being time barred on 02.09.2015. Hence this civil revision.

4. Learned counsel for the petitioner contends that sufficient cause was given in the application that the counsel noted wrong date as 17.7.2015 instead of 09.07.2015. Further submits that as sufficient cause was given in the application therefore the learned court should frame issue giving an opportunity to the petitioner to explain his absence on 09.07.2015. Further contends that as sufficient cause was given in the application therefore dismissal of the application on account of fact that same should have been filed within 30-days has no force. Further submits that application was supported by an affidavit therefore the dismissal is illegal as there is no counter affidavit by the respondent No.1 as application was dismissed without hearing the other party. Further submits that application for restoration of application under section 12(2) CPC is governed under Article 181 of the Limitation Act, 1908 which provides period of three years from the date when the right to apply accrues.

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