PLD 2023 Sindh 23
Civil Procedure Code ( V of 1908 ) ---
---- S . 115 & 0.XLI , R. 17 ( 1 ) --- Limitation Act ( IX of 1908 ) , Arts . 168 & 181 --- Restoration of appeal --- Limitation --- Date of hearing --- Scope --- Appeal filed by petitioner was dismissed by Lower Appellate Court for non - prosecution and application to restore the same was also dismissed for barred by limitation --- Validity --- Appeal was dismissed by Lower Appellate Court before receiving and without examining record and proceedings , which was summoned by the court itself through a judicial order which order was in field when appeal was dismissed --- Lower Appellate Court was duty bound to adjourn the matter on relevant date for compliance of its direction for summoning of record and proceedings --- By not discharging such duty , Lower Appellate Court acted mechanically , without being aware of its discretionary power to not dismiss the appeal --- Order of dismissal made by Lower Appellate Court in ignorance of jurisdiction was void and nullity --- Appeal was dismissed for non - prosecution under O. XLI , R. 17 ( 1 ) , C.P.C. , although it was not listed for hearing on that date --- Such order of dismissal was not an order under 0.XLI , R.17 ( 1 ) , C.P.C .--- Lower Appellate Court wrongly applied Art . 168 of Limitation Act , 1908 to application for restoration filed by petitioner --- Application for restoration of appeal was within time as Art . 181 of Limitation Act , 1908 was applicable , providing limitation of three years for its filing --- Application for restoration being not barred by time , order in question of its dismissal on the ground of limitation was a nullity --- High Court in exercise of its revisional jurisdiction set aside two orders passed by Lower Appellate Court , dismissing appeal for non - prosecution as well as refusing to restore the application
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