BISE LAHORE Vs ROZINA MUSHTAQ

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JUDGMENT SHEET

IN THE LAHORE HIGH COURT,

LAHORE.

JUDICIAL DEPARTMENT

F.A.O. No. 71205 of 2017 Board of Intermediate and Secondary Education, Lahore versus Rozina Mushtaq

JUDGMENT

Date of hearing: 22.09.2026 Appellant by: Mr. Mehboob Azhar Sheikh Advocate Respondent No. 1 by: Mr. Farhan Farooq Advocate In attendance: Mr. Hassan Khalid Ranjha, Additional Advocate General Punjab, M/s. Abdullah Haroon, Ch. Imtiaz ullah Warraich, Shehryar Farhan Beg, Shujaat Umar Pirzada, Syed Imran Ehsan and Muhammad Saeed Bin Noman Advocates.

Mr. Qamar Hanif Ramay, Assistant Attorney General for Pakistan, M/s. Dr. Muhammad Azeem Raja and Syed Ali Allow-d-Din, Ch. Muhammad Naseer, Muhammad Afzal, Ijaz Ahmad, Mateen ul Haq Ch., Syed Qaiser Gillani, M. Naeem Mazhar, M. Harris Jatt, Basit Waheed Watto, Mumtaz Mustafa and Ms. Asifa Ahmad, Advocates.

MUZAMIL AKHTAR SHABIR, J. The appellant, Board of Intermediate and Secondary Education, Lahore (‘Appellant’) through the titled First Appeal against Order (‘FAO’) filed under Section 104 and Order 43(t) of Code of Civil Procedure, 1908 (‘CPC’) has called in question order dated 27.05.2017 (‘Impugned order’), whereby Appellant’s application for restoration of a previous application for restoration of appeal filed by the Appellant has been dismissed as time barred.

2.It is contended by learned counsel for the Appellant that learned trial court has not properly appreciated the facts of the case and law on the subject and misinterpreted and misapplied provisions of Limitation Act. 1908 (‘ACT’) while dismissing the afore-referred application filed by the Appellant as time barred, therefore, the impugned order is not sustainable.

3.On the other hand, learned counsel for Respondent Rozina Mushtaq (‘respondent’) has defended the impugned order by claiming that the Appellant

was not diligent in perusing the remedy and the application being barred by limitation was rightly dismissed by the court below.

4.Brief background of the case is that respondent filed a Suit for Declaration against the Appellant seeking correction of her date of birth inadvertently mentioned as 15.09.1985 instead of 15.09.1991 in educational documents and record maintained by the Appellant, which suit was contested by the Appellant and after recording of evidence of the parties same was decreed on 30.10.2014. The Appellant challenged the same by filing appeal, which was dismissed by the learned Additional District Judge, Lahore on 16.11.2016 due to non-deposit of process fee. The Appellant filed an application for restoration of the same, which was dismissed for non-prosecution on 22.12.2016. The Appellant prayed for recall of order dated 22.12.2016 by filing application on 04.05.2017 for restoration of the first application alongwith an application for condoning delay under Section 5 of the Limitation Act, 1908, which applications have also been dismissed through the impugned order as time barred by 122 days by applying Article 168 of First Schedule of Limitation Act, 1908 and discarding the plea of the Appellant that Article 181 was applicable, resulting in filing of the instant Appeal.

5.The instant Appeal has been filed to challenge the impugned order by invoking provisions of Order 43(t) of CPC and in the opening sheet it is mentioned that the Appeal has been filed under Section 96 CPC. The intention of the appellant appears to file the same under Section 104 read with Order XLIII Rule 1(t) CPC as appeal under Section 96 of CPC could only be filed against a decree passed by the Court exercising original jurisdiction and not against an order passed by the appellate court, whereby an application is dismissed. Besides provisions of Order XLIII Rule 1(t) CPC can be invoked to file an appeal under Section 104 of CPC against an order of refusal under Rule 19 of Order XLI to readmit, or under Rule 21 of Order XLI to re-hear an appeal. However, despite the fact that the intention of the appellant is to get his appeal readmitted, the said situation has not arisen in the instant case as the impugned order in an order of dismissal of an application for restoration of a previous application for restoration, which does not fall in any of the aforementioned categories. No other provision is provided under Order XLIII whereby the dismissal of an application for restoration of an earlier application dismissed for non-prosecution has been made appealable. Hence, in the instant case

filing an appeal to challenge the impugned order is not permissible under the law. However, subject to certain exceptions, where an appeal is not provided under the law, a revision petition under Section 115 of CPC could be filed, which exceptions are not available in the instant case. This Court is competent to convert one type of proceedings into another type of proceedings at any stage of proceedings as no fetters or bar could be placed on the High Court and or the Supreme Court to convert and treat one type of proceedings into another type. Reliance is placed on Commissioner of Income Tax (Legal) RTO, Abbottabad versus Messrs Ed-Zublin AG Germany and another (2020 SCMR 500), Muhammad Akram versus DCO, Rahim Yar Khan and others (PLD 2018 SC 449) and Sher Alam Khan versus Abdul Munim and others (PLD 2018 SC 449). In view of the above, as the instant Appeal had been filed within limitation prescribed for filing a revision petition before this Court, the same is converted into a revision petition and is being decided accordingly; however in continuation of previous narrative, the appellant instead of petitioner is still referred to as the appellant hereinafter.

6.In the case in hand, the question arising for determination is that whether application of the Appellant for restoration of an earlier application for restoration of the appeal has been rightly dismissed as time barred vide the impugned order.

7.Whether the said application for restoration of previous application was actually barred by time and whether application seeking condoning of delay was rightly dismissed could be determined by making reference to Articles 168 and 181 of the Limitation Act, 1908, reproduced below:

First Schedule Third Division-Applications

Description Period of Time from which Limitation period begins to run.

168.For the readmission of appeal Thirty days The date of dismissal. dismissed for want of prosecution.

181.Application for which no period of Three years When the right to apply limitation is provided elsewhere in this accrues.

schedule or by Section 48 of the Code of Civil Procedure, 1908.

8.In terms of Article 168, reproduced above, an application for restoration/ readmission of appeal under Order XLI Rule 19 CPC is to be filed within 30 days of dismissal of the same for want of prosecution and failure to do so within time

would result in its dismissal. Reliance in this regard is placed on the judgment titled as Shabrati vs. Shaukat Ali Khan (PLJ 1997 Karachi 510). However, in the present case, the application filed by the Appellant was not an application for restoration of the appeal rather the same was an application for restoration of an earlier application for restoration of appeal, in which although no provision of law under which it has been filed has been mentioned but for all intents and purposes, it is an application under Section 151 CPC, therefore, neither provisions of Order XLI Rule 19 CPC nor provisions of Article 168 of the Limitation Act, 1908, are applicable to the same. It is pertinent to mention here that application for restoration of the appeal filed by the Appellant was dismissed on 22.12.2016 and the restoration application was filed on 04.05.2017, which the learned Additional District Judge treated as barred by time under Article 168 of Limitation Act, 1908. However, it is observed that as no timeframe is provided under the law for filing application under Section 151 CPC for restoration of an earlier application for restoration of appeal that had been dismissed in default, therefore, the residuary Article 181 of the Limitation Act, 1908, would be applicable which provides limitation of three years for filing such applications, for which no specific Article provides any limitation. Reliance in this regard is placed on the judgment titled as Muhammad Sadiq vs. Mst. Bashiran and 9 others (PLD 2000 S.C. 820) wherein it is held that no limitation having been prescribed for filing an application to invoke jurisdiction of the Court under Section 151 CPC in the Limitation Act, 1908, residuary provision of Article 181 of the said Act would be attracted which provides period of three years for the purpose. Same principle has been reiterated in the judgment titled as Sardar Abdul Majid Khan Lashari vs. The Asio-African Co. Ltd (1972 SCMR 236), wherein it is held that Article 181 is a residuary Article and it applies to all the matters in respect of which no period of limitation is provided. Reliance is also placed on the judgment titled as Ghulam Qadir & others vs. Sh. Abdul Wadood & others (PLD 2016 S.C. 712), wherein it is held that residuary Article 181 of the Limitation Act, 1908, providing three years limitation, shall be attracted to an application filed to seek restoration of an earlier application seeking restoration of revision petition which was also dismissed for non-prosecution. The same principle would be applicable to the case in hand where application has been filed for restoration of earlier application for restoration of appeal which was dismissed for non-prosecution and limitation for filing the said application would be three years under Article 181 of the Limitation

Act, 1908. Consequently, the observation of the learned Additional District Judge that application filed after lapsing of four months of dismissal of earlier application for restoration of appeal was barred by time is not spelt out from the record, which even otherwise is not in accordance with law, hence, as the learned Additional District Judge Lahore has misapplied the provision of Article 168 of the First Schedule of the Limitation Act, 1908, to dismiss the application as time barred, to that extent the impugned order is not sustainable and as the application for restoration of earlier application could be filed within three years the portion of the impugned order whereby the application for condoning delay filed under Section 5 of the Limitation Act,1908, has been dismissed is also not sustainable. Reliance in this behalf is also placed on Akhtar Hussain versus Muhammad Jamal and 4 others (2022 CLC 2007), wherein while deciding a similar matter it has been held that Article 181 would be applicable to compute limitation period for restoration of an earlier application for restoration of appeal and case was remanded for decision afresh. In view of what has been discussed above, the impugned order suffers from jurisdictional defect of misapplication of law and consequently merits to be corrected by this Court in exercise of jurisdiction vested by law.

9.For what has been discussed above, this Appeal, which has been converted into Civil Revision is allowed with the result that the impugned order dated 27.05.2017 is set-aside, as a result of which, the application filed by the Appellant for restoration of earlier application for restoration of appeal shall be deemed to be pending before the Additional District Judge, Lahore, who after providing reasonable opportunity of hearing to the parties shall decide the same afresh on its own merits in accordance with law, which exercise shall be carried out expeditiously. No order as to costs.

(MUZAMIL AKHTAR SHABIR)

JUDGE

Zeeshan Khan *

APPROVED FOR REPORTING