Limitation period for re-admission of appeal --- Article 168 of the Limitation Act , 1908 , provides thirty days for an application for seeking re - admission of the appeal dismissed for

 PLD 2023 Lahore 216

Limitation period for re-admission of appeal --- Article 168 of the Limitation Act , 1908 , provides thirty days for an application for seeking re - admission of the appeal dismissed for non - prosecution under O.XLI , R.17 ( 1 ) of the C.P.C. , from the date of dismissal --- However in the present case the residuary Art.181 of the Limitation Act , 1908 , would come into play , which provides three years period of limitation --- Application seeking restoration was thus well within time

Limitation Act ( IX of 1908 ) , Arts . 168 & 181 --- Remedy against original decree --- Procedure for hearing appeal --- Dismissal of appeal --- Scope --- Consequences of default --- Applicants were seeking recall of order , whereby their appeal was dismissed for non prosecution , whereas another ( latter ) application was for condonation of delay --- Respondents had submitted their reply whereas respondent No.2 was proceeded ex - parte --- Held , that Part VII of the C.P.C. , deals with the appeals from original decree --- Section 96 of the C.P.C. , provides the remedy of appeal against original decree --- Order XLI of the C.P.C. , lays down the procedure in appeals --- Rule 11 of 0.XLI of the C.P.C. describes that Appellate Court is vested with the power to dismiss the appeal without sending notice to the Trial Court --- Rule 11 ( 2 ) of O.XLI describes that if on the day fixed or any other day to which the hearing is adjourned , if the appellant does not appear when the appeal is called on hearing . the Appellate Court may make an order of dismissal of appeal- -If the appeal is not dismissed in terms of R. 11 of 0.XLI of the C.P.C. the Appellate Court shall fix a day for hearing appeal --- Rule 16 of O.XLI prescribes the procedure on hearing which expression presumes compliance of all earlier steps --- Provisions of O.XLI , R.17 ( 1 ) of the C.P.C. provide the consequences of default of the appellant to appear on the day fixed or any other day to which the hearing is adjourned --- Expression " hearing " used in 0.XLI , R.17 ( 1 ) of the C.P.C .. corresponds to the adherence of all steps outlined by Rr . 11 to 16 of 0.XLI of the C.P.C .--- In the present case it was apparent from application itself that the applicants had been able to canvas sufficient cause for their non - appearance , which was quite enough --- Even otherwise order resulting into dismissal of appeal was not tenable in the circumstances