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Petitioner: AFTAB HUSSAIN VS Respondent: KARACHI PORT TRUST through Board of TrusteesHonorable Justice Dr. Qamaruddin BohraMuhammad Sabir Hussain,Muhammad Sarfaraz Sulehry
2010 Y L R 195
2010 Y L R 195
[Karachi]
Before Dr. Qamaruddin Bohra, J
AFTAB HUSSAIN through Sub-Attorney---Plaintiff
Versus
KARACHI PORT TRUST through Board of Trustees---Defendant
Suit No.202 of 2006 and C.M.A. No.5924 of 2007, decided on 14th January, 2008.
Specific Relief Act (I of 1877)---
----Ss.42 & 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1, 2---Suit for declaration and permanent injunction---Applications filed by the plaintiff for temporary injunction and contempt, having been dismissed for non-prosecution, plaintiff filed application for restoration of said application, which was time-barred by 72 days---Counsel for the plaintiff filed his affidavit stating that he could not note the suit in the cause list due to oversight as he was alone in his office and he had no court clerk; with the result that said applications fixed for hearing had been dismissed for non-prosecution--Counsel had further contended that under Art.181 of Limitation Act, 1908, three years period having been provided for such application, said application was not time- barred---Application for restoration was allowed in the interest of justice and said two applications which were dismissed for non prosecution, were restored to their original stage in number.
Muhammad Sabir Hussain for Plaintiff.
Muhammad Sarfaraz Sulehry for Defendant.
ORDER
DR. QAMARUDDIN BOHRA, J.---The C.M.A. No.5924 of 2007 is for restoration of two earlier applications under O.XXXIX rules 1 and 2 and another contempt application, which were dismissed vide order dated 9-4-2007 in non-prosecution. Though learned counsel for the plaintiff was present on the previous date for hearing in the Court but he did not pursue the same and now restoration application is time-barred by 72 days. Whereas, Mr. Sabir Hussain Advocate for the plaintiff has filed his personal affidavit stating that in the earlier hours he attended his case, being suit No.1042 of 1999 but he could not note the aforesaid suit in the cause lists due to oversight as he was alone in his office and he had no Court Clerk, with the result, the applications fixed for hearing had been dismissed for non-prosecution. He further contended that under Article 181 of Limitation Act three years provided, as such the application for restoration is not time-barred.
In the light of the above and in the interest of justice C.M.A. No.5924 of 2007 is allowed and both the earlier applications i.e. C.M.A. No.1227 of 2006 and C.M.A. No.1344 of 2006 are restored to their original stage in number. The Advocate for plaintiff is directed to file proposed issues, if any. Adjourned to a date in office for hearing of applications and issues.
H.B.T./A-134/K Application allowed.