Arjan Singh, etc. vs Mahommad Hussain and others

Harnam Singh, J.—This case was dismissed for want of prosecution by a Division Bench of this Court on 14th September 1948.

The facts, so far as material, are that the appellants were required to pay in Court Rs. 150 to meet the proclamation charges for the service of the respondents. In spite of demands the appellants failed to deposit the amount in Court. The case coming up before the Court on 14th September 1948. Mr. C. L. Agarwal for the appellants stated that he had been writing to his client for the charges but had not heard from him. He also expressed inability to pay the charges out of his own pocket. The case was accordingly dismissed. Clearly the order of dismissal passed on 14th September 1948 was for want of prosecution of the Letters Patent appeal.

Mr. C. L. Agarwal on 11th April 1949 applied to the Court that the appeal may be revived and restored to its original number and be ordered to be heard on merits. An application of this type falls under Art. 168, Limitation Act. Article 168, Limitation Act, reads :

For the re-admission Thirty days. The date of the of an appeal dismissed dismissal. for want of prosecution.

Obviously the application for restoration is hopelessly barred by time. Mr. C. L. Agarwal, however, contends that regard being had to the circumstances set out in the affidavit, the time for making the application for the re-admission of the appeal be extended, or in the alternative the order passed by the Division Bench on 14th September 1948 may not be construed to be an order of dismissal for want of prosecution. There is no force in this contention.

In the first place, S. 5, Limitation Act, does not govern applications under R. 19 of O. 41, Civil P. C. That being so, the period for making the application under question cannot be extended u/s 5. There is no other provision enabling the Court to extend the period of limitation prescribed for the making of such an application.

In the second place, it is clearly stated in the order that the appeal was being dismissed, because the appellants had failed to pay the proclamation charges for the service of the unserved respondents. That being the situation, the appeal was dismissed for want of prosecution, land as such fell within Art. 168, Limitation Act.

In the result, the application fails and is dismissed. No order as to costs.

Kapur, J.

I agree.