Friday, 11 January 2013

Dismissal on non prosecution has no limit to be time barred

  Citation Name  : 2012  CLC  556     KARACHI-HIGH-COURT-SINDH
  Side Appellant : JANGOO
  Side Opponent : FASAHATULLAH KHAN
Ss. 42, 39 & 54---Civil Procedure Code (V of 1908), O.IX, Rr.8 & 9---Limitation Act (IX of 1908), S.5---Suit fordeclaration, perpetual injunction and cancellation of document---dismissal of suit for non-prosecution ---Restoration of---Matters fixed on that date when suit was dismissed, were of interlocutory nature---No substantive step or proceedings in the suit itself was contemplated or required to be undertaken on that date---Even the notices issued to the plaintiff were for the purposes of interlocutory matters---Court at the most could deal with the interlocutory matters and not the suit itself in its entirety---Unless the suit had been fixed for some substantive hearing or proceedings, it could not have been dismissed for non-prosecution ---Since the order dismissing the suit itself ought not to have been made at all, issue of limitation could not arise in the case and was not a bar to consider the application for restoration of suit on its merits---Suit should have been restored---Order dismissing the suit for non-prosecution , was set aside and the same was restored to its position as on that date. 

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