Haji UMAR LAKHANY vs Mst — 2023 PLD 23 KARACHI-HIGH-COURT-SINDH

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Haji UMAR LAKHANY VS Mst. KHATOOBAI HAJI NOOR MUHAMMAD S. 115 & O.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 O.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---High Court remanded the matter to Lower Appellate Court for decision on appeal afresh---Revision was allowed, in circumstances.

Haji UMAR LAKHANY vs Mst — 2023 PLD 23 KARACHI-HIGH-COURT-SINDH

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