Decided on May 14,1999

Syed Riyaz Ahmad Rufai Appellant


SYED BASHIR -UD -DIN, J. - (1.) LPA 230/97, Syed Riyaz Ahmad Rufai Vs. University of Kashmir and Others was dismissed for want of prosecution on 22 -7 -1998. The motion for, restoration of this L.P.A. alongwith application for condonation of delay in filing the said motion has been filed on 21 -10 -1998. Respondent No. 5 Abdul Rashid Mufti, has contested the restoration and condonation matter and filed objections thereto.
(2.) COUNSEL for the applicant/appellant, submits that the appellant had no knowledge or information about the listing and dismissal of LPA on 22 -7 -1998. He learnt about the order only on 21 -10 -1998, when he came across copy of the order of dismissal of the LPA in University. He immediately took steps and filed the application, the LPA did not figure in the regular cause list on regular supplementary cause list issued by the Registry for the week from 20 -7 -1998 to 24 -7 -1998. The appellant learnt that in fact on the emergency memo of Respondent No 5, the case was ordered on 21 -7 -1998 by His Lordship Honâ„¢ble the Chief Justice to be listed next day the 22 -7 -1998, the case was so listed and was dismissed, as above. The appellant was not aware about the appearance of case in the daily supplementary list of 22 -7 -98. He has no notice whatsoever of listing of the case on this date. The moment he learnt about the dismissal he without wasting any time filed the application for re -admission of the appeal with condonation application, the appellant had no knowledge or notice about filing of emergency memo or the order of listing of case on 22 -7 -1998 or the actual listing of the matter in the daily supplementary list on the said date. It is for lack of notice and knowledge in the circumstances that the appellant/applicant or his counsel failed to appear on 22 -7 -1998 before the court, when the appeal was dismissed for non -prosecution. In these circumstances, the counsel prays that the appeal may be re -admitted for hearing and delay in filing the restoration memo beyond 30 days may be condoned.
(3.) THE counsel for the respondents in his objections has opposed the restoration/re -admission of the appeal, the application is stated not to have been filed within time. The listing and dismissal of the case on 22 -7 -1998 is legal. The appellant/applicantâ„¢s absence on 22 -7 -1998 is intentional and deliberate. No sufficient cause is made out for restoration/re -admission of the appeal. The counsel for non -applicant, Mr. M.A. Qayoom, submits, that there is no provision for condonation of delay in case application for restoration/readmission of the appeal is moved beyond thirty days as prescribed by Article 168 of the Limitation Act. Section 5 of the Limitation Act, providing for extension of period in certain cases, does not cover such a case. The application being barred by time, has to be dismissed, notwithstanding, that the limitation is not set up as defence in the case.;

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