MANAGER, JAMMU & KASHMIR, STATE PROPERTY IN PAKISTAN Versus KHUDA YAR

1. MUHAMMAD AFZAL CHEEMA, J.‑‑ This civil appeal by leave filed by tile Manager, Jammu & Kashmir State Property in Pakistan (described as Manager hereinafter) marks the culmination of a series of orders of dismissal in default by the first Appellate Court having a fictional strangeness about them. The last order dated 2‑11‑1971 from which this appeal is filed was made by a learned Single Judge of the Lahore High Court dismissing in limine the petitioner's Civil Revision No. 48 of 1972 filed under section 115/151 of the Code of Civil Procedure.

2. The dispute relates to a very valuable property in Lahore measuring 54 kanals 13 marlas and 86 sq. ft. of land in the revenue estate of Naulakha and situate between Landa Bazar and Sarai Saltan quite close to the Railway Station. At the time of Independence, it was treated as evacuee property as belonging to the Maharaja of the Jammu & Kashmir and was allotted as agricultural land to Khuda Yar respondent in 1948, who had been in its possession even before.

3. On 11‑1‑1951, the Ministry of Kashmir Affairs, Government of Pakistan entrusted its management to the Azad Kashmir Government, vide letter B‑1. In 1955, the management was taken over by the Federal Government and a Manager was appointed. The Manager issued notice of ejectment against the respondent under section 45 of the Punjab Tenancy Act, 1887. This led to the institution of a suit by the respondent before the Revenue Court on 30‑1‑1956 which was dismissed by the Assistant Collector, Ist Grade vide order dated 27‑3‑1958 on the finding that the property had become vested in Federal Government under the Evacuee Laws and the respondent being a tenant under the Government had no locus standi to sue under the Tenancy Act. An appeal filed by Khuda Yar respondent against this order was also dismissed by the Collector, vide order dated 6‑4‑1961. Against this order Khuda Yar filed a Revision Petition No. 113 before the Additional Commissioner.

4. In the meantime, Jammu & Kashmir (Administration of Properties) Ordinance No. III of 1961 came into force. Section 3 of the Ordinance provided that all immovable properties in Pakistan which vested in the Maharaja of Jammu & Kashmir shall vest and shall be deemed to have vested as from 15‑8‑1947 in the Government of Pakistan, "free from all encumbrances". The respondent's revision petition pending before the Additional Commissioner, however, was allowed, vide order dated 27‑7‑1961 on the ground that the legal requirement of a notice to the respondent bad not been complied with and as such fresh notice was necessary before having recourse to proceedings for his ejectment. The Federal Government filed a revision petition before the Board of Revenue against the above order. A learned Member, Board of Revenue, upheld the view taken by the Addi tional Commissioner and dismissed the Government's revision on 25‑1‑1963. This concluded the first round of litigation before the Revenue hierarchy.

5. Pursuant to the direction of the Member, Board of Revenue and to set the ball rolling afresh, another notice under section 45 of the Tenancy Act was issued to the respondent and fresh ejectment proceedings were initiated, before the Revenue Authorities. In the meantime, the respondent instituted a suit on 12‑4‑1965 for a declaration of title as owner of the property on the basis of adverse possession. Since the civil Court was seized of the matter, the Assistant Collector on the statement of the parties, consigned the pro ceedings to the Record Room, vide order dated 18‑9‑1965.

6. In the Civil Suit on a preliminary objection taken on behalf of the Government the following preliminary issues was framed:‑

7. "Whether in view of the statements made in the plaint the jurisdiction of this Court to entertain the suit is barred by the Jammu & Kashmir State (Administration of Property) Ordinance, 1961?"

8. By order, elated the 13th December, 1965, the preliminary issue based on the objection of the defendants that section 5 (2) of the Ordinance ousted the jurisdiction of civil Court, was answered in the negative. The view taken by the Civil Judge was that the ouster was baled on the presumption that ill properties of the State of Jammu & Kashmir situated in Pakistan stood transferred to the Central Government free from all encumbrances by virtue of the provision contained in section 2 of the Ordinance. However, if a dispute muse as to whether or not a certain property belonged to the State of Jammu & Kashmir or the Maharaja on the 15th of August, 1947 and as such vested or not in the Central Government by virtue of section 2, the civil Court did have the jurisdiction to decide the issue on merits.

9. On merits, on the pleadings of the parties, the following issues were framed:--

(1) Whether the suit property has vested in the Central Government under section 3 of the Jammu & Kashmir State (Administration of Property) Ordinance, 1961?

(2) Whether the Jammu & Kashmir State (Administration of Property) Ordinance, 1961, is repugnant to the Constitution?

(3) Whether the plaintiff has become an owner of the suit property by adversely holding it for 12 years?

10. Issue No. 1 was found against the defendant who according to the trial Court failed to prove that on the crucial date i.e. 15th August, 1947, the property belonged to the State or the Maharaja of Jammu & Kashmir. On issue No. 2, Ordinance of 1951 was found to be relating to the cons titutionally of the intra vines found against the plaintiff who was otherwise, held to be in adverse possession of the land since 1943, which had matured into rights of ownership by prescription. The case of the appellant was that he had entered into a transaction of sale with Mst. Gulab Bibi wife of Sultan after whom Sarai Sultan is named. The bargain was struck @Rs. 14,000 out of which he had paid Rs. 4,000 in advance and that the balance was to be paid at the time of registration. Gulab Bibi backed out of the transac tion but the plaintiff took forcible possession of the property and since then had remained in continuous and un-interrupted occupation thereof.

11. From the judgment and decree of the Civil Judge, the Government of Pakistan and the Manager filed an appeal in the Court of the District Judge on 3‑5‑1969. It was received on transfer in the Court of Mr. Shamasuddin Additional District Judge, an Officer who was later screened out for in different record on the recommendation of the High Court on 10‑12‑1970 and on the same day notice was issued to the parties for 11‑1‑1971 and the record was also summoned. On 11‑1‑1971, without caring to ascertain as to whether the parties had been served, the Additional District Judge dismissed the appeal at 2‑01 p. m. with the observation "the appeal is dismissed for the default of the appellant". An application for restoration of the appeal was moved on behalf of the Manager, Jammu & Kashmir State Property by Syed Manzoor Hussain Bokhari, Advocate, on 11‑2‑1971 on the ground that the dismissal of appeal was based on a bona fide mistake as to the date of hearing which the Reader of the Court had erroneously noted as 11‑1‑1971 instead of 11‑2‑1971 and that even the respondent was not present on that date. The application was posted for bearing five months later on 14-7‑1971 which was unusual and against the High Court's instruction under which no case is to be adjourned for more than three months. Surprisingly enough, no one appeared on behalf of the appellant to pursue the application on the aforesaid date with the result that it was again dismissed in default precisely at 2‑01 p. m. Three days later on 17‑7‑1971, yet another application for restoration was moved which too met the same fate and was dismissed in default on 2‑11‑1971 at 4‑00 p. m., this time by the successor Additional District Judge Mr. Faiz Ahmad Aslam. Instead of pursuing the remedy for the restoration of appeal, the Manager field a R. S. A. in the High Court challenging the order of dismissal of appeal in default dated 2‑11‑1971. as also the orders of dismissal in default of the two applications for restoration of appeal. Subsequently, however, realising that the appeal was not competent under Order XLIII, rule 1 of the Ca de of Civil Procedure, counsel for torte Manager moved a petition that the appeal may be treated as a revision. It was alleged in the petition that the petitioner's right of second appeal was extinguished due to "gross professional misconduct of the counsel Syed Manzoor Hussain against whom he was proceeding separately". In the petition, it was also asserted that the respondent not being in possession should have filed a suit under section 39 of the Specific Relief Act on payment of ad valorem court‑fee and that the trial Court had erred in law in granting the decree in favour of the respondent, Allegations of collusion were also brought against the trial Court and although the Civil Revision was primarily and principally directed against the trial Court's order, dated 6‑3‑1969, a prayer was also made for setting aside orders of the Additional District Judge, dated 11‑1‑1971, 14‑7‑1971 and 2‑11‑1971, of which the first was one of the dismissal of appeal in default and tie other two were of the dismissal for non‑prosecution of the applications for restoration. Subsequently however, fresh grounds were filed to challenge these three orders. Accordingly, what was initially filed as appeal was registered as Civil Revision No. 48 of 1972 which came up before a learned Single Judge of the High Court and was dismissed in limine, vide order dated 12‑5‑1972. The view taken by the learned Judge was that the case was fixed for hearing on 11‑1‑1971, and the case was dismissed in default owing to absence of the appellant and as such it was not a case of exercise or one of material irregularity in the exercise of jurisdiction. The learned Judge observed that "if on the date for which the case was fixed for hearing the petitioner or Iris counsel was absent, the Court could not do anything else but to dismiss the appeal in default". The order concluded with the observation that the proper course for the petitioner was to apply for the restoration of the application which was dismissed in default on 2‑11‑1971.

12. It is in this background that petition for special leave to appeal was filed in this Court on the grounds, inter alia that the learned Judge in the High Court had misdirected himself as to the interpretation of rule 17 of Order XLI of the Code of Civil Procedure, which came into conflict with the earlier decision of the same High Court in Dhunda v. Punjab Province (P L D 1960 Lah. 786) and therefore, a legal question of general importance bad arisen.

13. Furthermore the value of the subject-matter of the dispute was quite substantial. Leave was opposed by the respondent who had entered caveat on the ground that the party engaging a counsel should suffer for his negligence. Leave was granted, vide this Court's order dated 27‑10‑1972 wherein tracing the background of the case in detail and noting the points alleged in support of the petition, grant of leave was granted on the two‑fold consideration of the importance of the legal question involved and the high value of the property.

14. On behalf of the appellant, the principal contention raised by his learned counsel Mr. S. M. Zafar, was that the fate of the appeal hinged on a proper interpretation of Order XLI, rule 17, which reads as follows:‑

15. Rule 17.‑(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.

(2) Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte.

16. While interpreting the above provision, it eras argued by the learned counsel that in the absence of proof of service of the respondent tile appeal could not have been called on for hearing under Order XLI, rule 17 (1). Learned counsel stressed that it was the duty of the Court to satisfy itself that all the provisions contained in rules 9 to 16 of Order XLI had been complied with and in the absence of such compliance, the appeal could not have been listed for hearing. Reliance in this behalf was particularly placed upon rules 14, 15 and 16, which read as under:‑ rule 14.‑(1) Notice of the day fixed under rule 12 shall be affixed is the Appellate Court house, and a like notice shall be sent by the appellate Court to the Court from whose decree the appeal is preferred, and shall be served on the respondent or on his pleader in the appellate Court in the manner .provided for the service on a defendant of a summons to appear and answer; and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice.

(2) Instead of sending the notice to the Court from whose decree the appeal is preferred, the appellate Court may itself cause the notice to be served on the respondent or his pleader under the provisions above referred to. rule 15.‑The notice to the respondent shall declare that, if he does not appear in the appellate Curt on the day so fixed, the appeal will be heard ex parte. rule 16.‑(l) On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal.

(2) The Court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal, and in such case the appellant shall be entitled to reply."

17. It was submitted that the requirements of these three rules are in the nature of conditions precedent which must be satisfied before the Court could make an order of dismissal of appeal. Firstly, there should be a date fixed for hearing; Secondly, the appeal should be called on for hearing; and Thirdly, the appellant should fail to appear. It was submitted that even so the Court was under no obligation to dismiss the appeal as held by the learned Judge but the appellate Court has discretion in this regard. It was submitted that from what was observed in the impugned order of the High Court, it was difficult to avoid an impression that the Court had acted mechanically even without having been conscious of its discretion. It was submitted that "hearing" means effective hearing and even if the Court could proceed with the hearing of tae appeal it could not and should not have acted perfunctorily in the instant case as is manifest in the orders of dismissal in default. White trying to interpret the expression called on for hearing" as used in rule 17, learned counsel argued that it connoted that something germane to the appeal could have been done also was proposed to be done on the date fixed in the matter It was pointed out that the same expression "called on for hearing" was also used in the Order IX, rule 8 and it was only in the event of the appearance of the defen dant that the non‑appearance of the plaintiff could result in the inevitable dismissal of the suit, and the Court is bound to dismiss the suit having no option but to make such an order. It was submitted that in contradistinc tion to the use of word "may" in Order XLI, rule 17" the word "shall" was employed in Order IX, rule 8, the former making the dismissal of the appeal discretionary with the Court while the latter making the dismissal of the suit obligatory. It was submitted that a more analogous provision was the one contained in Order IX, rule 3 which provides that "here neither party appears when the suit is called on for hearing the Court may make an order that the suit be dismissed" leaving it again to the discretion of the court Reliance was placed on Mst. Barkat Bibi v. Fateh Ali (P L D 1949 Lah. 432) and Messrs Ghulam Farid Muhammad Latif v. Central Bank of India Ltd., Lahore (P L D 1954 Lah. 575). It was argued that before an effective heating of the appeal it was the duty of the Court to ascertain that service of the parties had been effected. In the context of the adjournment of hearing of appeal as referred to in rule 17 of Order XLI, learned counsel also drew our attention to a corresponding provision relating to the adjournment of the suit as contained in Order XVIII, rule 2 which reads:

18. "Where on any date to which the hearing of the suit is adjourned the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit."

19. From this, it was argued that the Court had thus the discretion to proceed with the disposal of the suit in one of the prescribed manners and was under no obligation to dismiss it. While trying to distinguish the two situations, the one envisaged by Order XLI, rule 17 relating to the discre tionary power of the Court to dismiss an appeal and the other contained in Order IX, rule 8 making it obligatory for the Court to dismiss the suit, and more particularly to elaborate the connotations and implications of `hearing", learned counsel relied on the following authorities:‑

(1) Sheikh Abdul Rahman v. Shib Lal Sahu A I R 1922 Pat. 252.

(2) Musaliarakath Muhammad v. Manaviakrama The Zamorin Rajah Avergal and others A I R 1923 Mad. 13.

(3) Haji Ghulam Rasool v. Allah Ditta P L D 1950 B J 19.

(4) Gayam Arugoba Reddi and others v. Maniklal Gupta A I R 1953 Hyd. 251.

(5) Bhunda v. The Punjab Province P L D 1960 Lab. 786

(6) Sh. Ghulam Mujtaba and others v. Noor Muhammad Khan P L D 1964 B J 8.

(7) Mst. Ghulam Sakina and 6 others v. Karim Bakhsh P L D 1970 Lah. 412

(8) Rahim Bux and another v. Gul Muhammad and 2 others P L D 1971 Lah. 746.

20. The burden of the arguments of Mr. S. M. Zafar was that ascertainment of service of notice on the respondent was the duty of the Court and a con dition precedent before proceeding with the hearing of the appeal and if the Court had failed to discharge its responsibility and had dismissed the appeal in default without caring to ascertain whether the respondent had been served or not and worse still without awareness of its discretionary power not to dismiss the appeal, particularly when service had admittedly not been effected, the order of dismissal was void and a nullity, being without jurisdiction.

21. Finally, it was submitted that the Courts have in the interest of justice, equity and good conscience always learned towards decision of cases on merits. Reliance was placed on Haji Ghulam Rasool v. Allah Ditta (P L D 1950 B J 19) and Dhunda v. Panjab Province (P L D 1960 Lah. 786).

22. Haji Ghias Muhammad learned counsel for the respondent pointed out that after dismissal of the revision by the High Court a fresh petition for res toration of the main appeal was also filed in the first appellate Court by the appellant which was still ponding. Learned counsel contended that revisional jurisdiction being of a special and extraordinary nature could not be permitted to be invoked where an alternative remedy was available. It was submit ed that since rule 19 of Order XLI provided for the specific remedy of the re‑admission of the appeal in the event of its dismissal in default, the revision before the High Court was not competent as rightly held by .the learned Single Judge in the impugned judgment. In support of the pro position, learned counsel cited Shair Ali v. Jagmohan Ram and another (A I R 1931 All. 333), O. M. Chienoe v. Sita Ram (A I R 1940 All. 310) and Multan Central Cooperative Bank Through its Manager v. Nawab Mushtaq Mohammad Khan (P L D 1974 Lah.111). It was further submitted that in the event of the appellant's failure to seek re‑admission of his appeal under Order XLI, rule 19, the remedy of appal was also available to him under Order XLIII, rule 1 (f). Reliance was placed in this regard on The State v. Zia‑ur‑Rahman and others (P L D 1973 S C 49,89). Yet another argument raised in this context was that remedy under section 115, C. P. C. being a general remedy it stood excluded by the special remedy available under Order XLIII, rule 1 (f) . It was next argued that in the circumstances of the case there was no question of usurpation or abrogation of jurisdiction or its irregular exercise by the Additional District Judge which could justify re course to the revisional remedy. Even otherwise, the revisional jurisdiction being confined only to legal issues, factual enquiries relating to the suffi ciency or otherwise of the cause of absence could be more appropriately conducted in exercise of the appellate jurisdiction under Order XLIII, rule 1. In the same context, another point raised was that in view of the allega tions by the appellant that the respondent had obtained the decree by misre presentation, fraud and collusion, a suit was a more appropriate remedy even better than an appeal. Reliance was placed on Joti Ram v. (Firm) Beli Ram Barkat Ram (A I R 1935 Lah. 791) and Mal Das and another v. Mt. Dhan Devi and others (A I R 1935 Lah. 934), Zulflqar Ali v. Lal Din and another (1974 S C M R 162) and Municipal Committee, Bahawalpur v. Sh. Aziz Elahi (P L D 1970 S C 506). In the last mentioned authority, an order of dismissal in default on account of the absence of the appellant was upheld by this Court. The observation precisely pressed into service by the learned counsel was "the Court had no alternative but to dismiss in default". It was argued that tie expression used by the learned Judge in the impugned order, namely the Court could rot do anything else but to dismiss the appeal in default", was identical with the above observation of the Supreme Court and conveyed nothing more and nothing less. Learned counsel and cited Mai Das and other v. Mt. Dhan Devi and others and also referred us to Chitley's Commentary according to which majority of the High Courts in India hart taken the view that dismissal ors merits under Order XLI, rule 17 was illegal. In answer to the argument raised on behalf of the appellant that the Court learned in favour of decision on merits, learned counsel relied on Karam Bakhsh and 41 others v. Balmokand and 3 others (13 P R 1881) and Dhuna v. Punjab Province, an authority also relied upon by the other side. It was contended that a case dismissed in default was a case decided in the legal sense of the term. The proposition canvassed by the other side that the Court should be conscious of its discretionary power to make; an order of dismissal in default, was seriously controverted. It was submitted, that such a knowledge or consciousness could be presumed on the part of the Court and an express recital in this regard was not called for. Reliance was placed on The Municipal Committee, Bahawalpur v. Sh. Aziz Elahi.

23. In the course of his argument, learned counsel also raised a preliminary objection as to the competence of these proceedings which more appro priately should have been taken at the outset. It was argued that although the Central Government was a co‑plaintiff in this suit, it did not file any appeal or revision against the judgment of the trial Court dismissing the suit, and thus allowed the matter to attain finality. It was contended that where the main defendant being no longer interested dropped out of the litigation, the Manager had no independent locus standi to pursue the matter, and therefore, this appeal was incompetent. It was submitted in this context that the Government always sues or is sued through one of its Secretaries and that in fact a proper application for the restoration of the appeal filed by both the plaintiffs was already pending before the District Judge. It was submitted that the real dispute being between the Government and the respondent and the Manager was in the circumstances of the case, merely fighting the battle of the Government of Pakistan which under the law her could not be permitted to do.

24. Besides questioning the availability or competence of the revisional remedy before the High Court, learned counsel for the respondent also raised the question of limitation. It was argued that assuming that the revision was competent it should have been filed within a reasonable tithe and although strictly speaking no limitation was prescribed, the Court was under an obligation to give reason for admitting it beyond 90 days. Reliance was placed on Nani Lal De and others v. Tirthalal De and others (A I R 1953 Cal. 513), Emperor v. Nojibuddin and others (A I R 1933 Pat. 589) Kailash & Bros. v. Durga Prashad and others (A I R 1933 Lah. 175), Raghunath Das v Sri Arishan (A I R 1950 All. 248), Yazhakuttia Kutti Uduman flajf and others v. A. Mammi Kutti and others (A I R 1914 Mad. 299).

25. In further defence of the order of dismissal by the Additional District Judge, it was submitted by Haji Ghias Muhammad that having invain waited and called out the case several times, the learned Judge was amply justified in dismissing the appal for non‑prosecution and no fault could be found with his exercise of discretion which is not normally interfered with. Reliance was placed on Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another (P L D 1970 S C 139) and Malik Hadayat Ullah and 2 others v. Murad Ali Khan (P L D 1972 S C 69). In aid of interpretation of Order XU, rule 17, learned counsel relied on a Privy Council Authority (1903) 14 M L J 7, according to which "date fixed or any other day to which hearing may by adjourned" meant the day on which the case was ripe and fixed for hearing and therefore, the appellant or his counsel was under an obligation to be present on such a day or date and his absence fully justified the order of dismissal in default. It was argued that the service of the respondent was not an indispensable pre‑condition to be satisfied before an order of dismissal could be passed. Reliance was placed in this behalf only on statutory provision contained in rule 18 of Order XLI and no authority was produced in support of the contention.

26. In answer to the preliminary objection that the Central Government being the principal plaintiff in the original suit having voluntarily dropped out without caring to pursue the matter in appeal or revision, the Manager had no locus standi to litigate further, Mr. S M. Zafar learned counsel for the appellant referred us to section 3 of the Jammu & Kashmir (Administration of Property) Ordinance III of 1961 as amended by Ordinance XLIII of 1961, which invested the Manager with vast powers including those of evicting occupants dealing with the property etc. It was further pointed out that by virtue of rules 3 and 4 of the Jammu & Kashmir (Adminis tration of Property) Rules, 1961 framed in pursuance of the rule‑making powers vesting under section 6 of the Ordinance which came into force with effect from 27th December, 1961, the amplitude of cite power of the Manager to be exercised on behalf of the Central Government was farther enlarged and he could take all necessary steps for the eviction of the occupants and taking possession of or otherwise dealing with the property in any manner including the power to sell. In view of the above position, it was submitted that the Manager was quite competent to litigate on behalf of the Central Government. It was further submitted that it was equally competent for one of the two plaintiffs to challenge the decree given by the trial Court against both of them as specifically provided in rule 4 of Order XLI. Of course the only requirement to be satisfied in this regard was that tire decree appealed from should have proceeded on any ground common to all the plaintiffs or to all the defendants. In the instant case this condition was fully satisfied inasmuch as the plaint was firstly filed on behalf of both the co‑plaintiffs and the same counsel appeared for the Manager as well as the Central Government, and therefore, the order of dismissal could be set aside on a common ground enuring equally in favour of both the plaintiff's. It was next submitted that the C. h. C. was designed to promote justice and to safeguard the interest of justice vast discretionary powers vested in the Court as envisaged by Order XLI, rule 33. The Appellate Court could freely exercise this discretion to pass any order as demanded by the justice of the case wholly untrammelled by technicalities. It was submitted that amplitude of this Court's power under aforesaid provision of the C. P. C. stood further widened by its Constitutional power to do complete justice as envisaged by Article 187(1) of the Constitution. Reverting to the scope of revisional jurisdiction, it was. submitted that the powers of the High Court were much wider under section 115 as clearly indicated by the fact that the v could even be exercised suo motu and furthermore the High Court could "make such order as it thought fit", the whole object being to safeguard the interest of justice. It was submitted that the powers of the Superior Courts under this section were not in derogation of but in addition to power to issue writ of certiorari. Reliance was placed on Rangrao v. Pandurang and another (A I R 1924 Nag. 154), Firm Juggilal Kamlapat v. Collector of Bombay and another (A I R 1946 Bom. 280), Messrs Palaniappa Chettiar & Co. and others v. Deputy Commercial Tax Officer and another (A I R 1959 Mad. 319), and H. M. Saya & Co., Karachi v. Wazir Ali Industries Ltd., Karachi and another (P L D 1969 S C 65).

27. In answer to the objection taken on behalf of the respondent on the point of limitation, it was contended that the law did not prescribe any limitation for invoking the jurisdiction of the High Court and that the learned Judge rightly entertained the revision without objection on point of laches; furthermore it was originally filed as an appeal with a subsequent request to be treated as a revision.

28. As mentioned earlier, the burden of the argument of Mr. Zafar was, that the judgment of the Additional District Judge was not attacked by him on the ground that there was sufficient reason for non‑appearance of the appellant on the date fixed but that the order of dismissal was made not only in disregard of the legal requirement of the service of the respondent but also in complete ignorance of the Court's own discretion not to dismiss, the appeal in default. It was submitted that in an application for restoration of appeal whose success or failure depended on the satisfaction of tire Court as to the sufficiency or otherwise, of the ground fur non‑appearance, the plea of the order being without jurisdiction could not be taken before the same learned Judge. In support of the contention that the order of dismissal was without jurisdiction and could not be challenged before the same Court and therefore, invocation of revisional jurisdiction of the High Court was rightly preferred as a more appropriate remedy available to the appellant, reliance was placed on Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies (P L D 1964 S C 97). Even otherwise, it was submitted on the basis of Gaurishankar and others v. Ibrahim Ali (A I R 1929 Nag. 298), Lila v. Mahange and others (A I R 1931. All. 632), Bakhshish Sing and others v. Biru (A I R 1.932 Lah. 176), Ram Charan Das v. Hira Nand(A I R 1945 Lah. 298), P. V. Rangayya v. Tatavarty Nagapotha Rao and others (A I R 1946 Mad. 176), Talsi Charan Dos v. Subal Chandra Das and others (A I R 1952 Cal. 9), In re: Central Calcutta Bank Ltd. (A I R 1959 Cal. 629), and Municipal Committee, Bahawalpur v. Sh. Aziz Elahi, that notwithstanding the availability of the alternative remedy a revision would still be competent. It was submitted that a fresh application for the readmission of the appeal under Order XLI, rule 19 was made merely as a matter of abundant caution in the light of the observation made by the learned Single J edge in the impugned order. In answer to the contention raised by the other side on the basis of rule 18 of Order XLI that service of the respondent was not an essential pre‑condition to be satisfied before making an order of dismissal in default on account of the non‑appearance of the appellant, it was submitted by the learned counsel that in fact the aforesaid provision lent support to his argument that the Appellate Court was under an obligation to make sure that the respondent had been served and where non‑service of the respondent had been occasioned by the failure of the appellant to deposit cost of service, the Court was under no obligation to dismiss the appeal but even so had the discretion not to dismiss it despite the default on the part of the appellant. In answer to the argument that iv order to seek adjudication on allegations of misrepresentation, fraud and collusion, the proper remedy for the appellant was to bring a separate suit, it was submitted that that would have resulted in multiplicity of proceedings whereas the same object could be satisfactorily achieved by having recourse to the revisional jurisdiction of the High Court which short‑circuited the procedure. Lastly, it was submitted that the appellant had been deprived of the most valuable property on account of misconduct and collusion on the part of the counsel who was responsible for dismissals in default and was already being proceeded against on allegations of misconduct and that justice demanded that the appeal should be decided on merits instead of making a short shrift of the case on the basis of technicalities particularly in view of the Constitutional power of doing complete justice.

29. As will be seen from the foregoing narrative, the ultimate decision in this case depends on the determination of the technical points involved in the matter, on which will depend, in the final analysis the question as to whether the appellant's appeal filed before the District Judge should be restored so as to be heard and decided on merits or alternatively the matter should be allowed to rest at the trial Court's judgment to which finality would thus attach in respect of the disposal of a most valuable property thus completely shutting the door for the plaintiff‑appellant. I have already referred at the outset to the fictional strangeness about the manner in which successive orders of dismissal in default were made or allowed to be made.

30. The proposition could hardly be disputed that the principal object behind all legal formalities is to safeguard the paramount interest of justice. In fact while considering the importance of legal technicalities and rules of procedure in the administration of justice, it is inevitable to recall the various evolutionary stages in the transition from justice without law of primitive.' society to justice in accordance with law of modern society and the conflict between equity and law in judicial history. It cannot be denied that legal precepts were devised with a view to impart certainty, consistency and unifor mity to administration of justice and to secure it against arbitrariness, errors of individual judgment and male fide. Over a period of time this develop ment of codes and rules led to the evolution of what is called "jurisprudence of Conception" a system of logical deduction from fixed premises. In order to avoid the rigidity and hardship of ultra formalism recourse is had to principle of equitable application and interpretation of legal precepts and conferment of judicial discretion on the Courts as envisaged by Order XLI, rule 33 of the C. P. C. in regard to Constitutional power of this Court to do complete justice in all matters. These two provisions read together lead to the irreparable conclusion that mere technicalities unless offering an insurmountable hurdle should not be allowed to defeat the ends of justice. It was observed by Kaikaus, J . in Imtiaz Ahmad v. Ghulam Ali (P L D 1963 S C 382) as follows:‑‑

31. I must confess that having dealt with technicalities for more then forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on ground of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defect. Any system which by giving effect to take form and not to the substance defects substantive rights is defected to that extent. The idea must always be a system that gives to every person what is his."

32. In a similar context, Cornelius, C. J. as he then was, observed in Province of East Pakistan v. Sirajul Haq Patwari ((1967) 1 P S C R 35) as follows:

33. "It was, as I have already remarked, a res of the highest order and when it was placed in jeopardy by the petitions moved in these cases, it was the duty of the High Court in interpreting anal applying the relevant instruments including the Constitution to bear in mind the great maxim rat res mages valeat quam pereat that is to say, that the affair should prosper rather than be brought to destruction. It may he that the maxim that was borne in mind was rather fiat justitio rual coclum, that is to say let justice prevail though the heavens should fall."

34. In Giovanni Di Santo v. Commonwealth of Pennsylvania (U S S C R 71 Law Edn. 33) it was observed that the logic of words should yield to the logic of realities, particularly while dealing with adjustment of conflicting authorities. The salutory principle of interpretation which also points to the same direction appears to have been derived from the observation of Bowen L. J. in Curti v. Stovin ((1889) 22 Q B D 513), which reads as follows:‑

35. "If it is possible, the words of a statute must be construed so as to give a sensible meaning to them. The words ought to be construed ut res magis valeat quam pereat "

36. Of course, at is equally important to bear in mind the well‑known maxim that equity follows the law, a maxim acted upon by the Court of Chancery in England, on cases where the law clearly applies it has to be given full effect howsoever harsh it might appear fro be. Normally, however, legal, technicalities should not allowed to stand in the way of justice unless they: present. a hurdle brushing aside which might lead to unsettlement and uncertainty of law. There are instances though very rare where even the; principle of stare decisis with all the binding effect and respectability to which a consistently held age‑old view is entitled, has been departed from to satisfy the paramount demands of justice. It is a matter of common knowledge that superior Courts in every country leave been at times constrained to review their own judgments and considerations of unsettlement or uncertainty of law have not been allowed to stand in the way of reversing earlier decisions despite the sanctity of unanimity and their unquestioned acceptance as the lava of land over a long period of tune. The well‑known judgment of this Court in Asma Jilani's case overruling its earlier decision in Dosso's case, may be cited just as one example of this continuous process. The principle of equitable construction agreeable to justice and reason is too well‑known to be elaborated, subject of course to the equally well‑established principle that equitable justice and interpretation should not induce judges to do violence to the language. A via media between these two seemingly conflicting views has to be adopted in a realistic manner having regard to the facts and circumstances of each case. Fortunately, we can look forward to a greater infusion and convergence of Religion, Law and Morality in the Islamic Republic of Pakistan unlike the secular States where the area o conflict is greater and seems to be ever increasing. Leaving apart the lofty spiritual ideals of religion not only does Islam share with Law and Morality the common objects of regulating human conduct and social behaviour but it also comprehends and circumscribes their limits.

37. Having discussed above some of the relevant principles, we now proceed to deal with the legal and technical points and their answers as detailed above. Taking first the objection that the Central Government as the principal party to the litigation having declined or failed to challenge the trial Court's judgment thus allowing it to become final, the Manager had no locus standi to file a revision before the High Court or an appeal in this Court, we are of the considered opinion that the objection though appear ing to be attractive is not sustainable to view of the provisions contained in the Jammu & Kashmir (Administration of Property) Ordinance III of 1961 as amended by Ordinance XLIII of 1961. The vast powers conferred on the Manager under the above statute and the rules framed thereunder extending even to the power to sell the property are comprehensive enough to invest him with power to sue and litigate on behalf of the Central Government. This is abundantly clear from the provisions contained in section 3 which is reproduced below:‑

38. "Section 3. Management, sale or lease of properties etc.‑(1) The Central Government may make arrangements for the management, sale, lease or disposal otherwise of the properties vested in it under section 2.

(2) For the purposes aforesaid, the Central Government may appoint a person, to be called the Manager of State Properties of Jammu & Kashmir (hereinafter referred to as the Manager), who shall take possession of and hold, and, subject to the previous approval in writing of the Central Government, have the power to deal with and dispose of, all or any of the aforesaid properties, and shall exercise such other powers in relation thereto as may be prescribed by rules made under section 6.

(3) Without prejudice to the generality of the provisions of subsection (2), and notwithstanding anything contained in any other law for the time being in force, the Manager, after giving to the person or persons affected not less than fifteen days' notice, may, to such manner as may be provided by rules, and with use of such force as may be necessary,‑

(a) take possession and assume control of any property referred to in this section;

(b) evict summarily any person in unauthorized occupation or wrongful possession of any such property; and

(c) demolish or dismantle any unauthorized construction on any such property,, and recover from the person responsible for such construction any expenses incurred in connection with such demolition or dismantling."

39. Even otherwise, the amplitude of the Court's power under Order XLI, rule 33 to pass any order in the interest of justice furnishes a complete answer to the objection and it is hardly necessary to invoke the Constitutional power of this Court to do complete justice vesting in it under Article 183(1) of the Constitution. The objection is, therefore; overruled.

40. We next come to the second objection raised on behalf of the respondent that, a revision as filed by the appellant was incompetent before the High Court. The first argument advanced in support of the proposition was that a revisional jurisdiction being special and extra-ordinary in nature it could not be invoked where an alternative remedy was available. It was submitted that an order of dismissal under Order XLI, rule 17 could be challenged under Order XLI, rule 19 for the re‑admission of the appeal and even further, in the event of failure, to prefer an appeal under Order XLIII, rule 1(t). The second argument advanced in this regard was that remedy under section 115 being general in nature it stood excluded by the special remedy provided under Order XLIII, rule 1. It was submitted that in fact the alternative remedy, namely; an application seeking restoration of tire appeal had already been filed both on behalf of the Central Government as well as the Manager and was pending before the District Judge and for these reasons the revision was not competent before the High Court as rightly held in the impugned order.

41. We now proceed to deal with the authorities for and against the proposition relied on by the learned counsel for the parties.

42. In Shair Ali v. Jagmohan Rama and another (A I R 1931 All. 333), the petitioner felt aggrieved by order of the Munsiff whereby the name of defendant No. 2 was struck off and the plaintiff petitioner was also directed to pay Rs. 151 to him as cost. The view taken by the learned Judges was that a remedy by way of an appeal was available to the petitioner which bad not been availed of and therefore, he could not invoke revisional jurisdiction of the Court which was the last resort of an aggrieved litigant. In O. M. Chiene and Badri Prasad v. Sita Ram and another (A I R 1940 All. 310), the facts were somewhat similar to those of the instant case. In this case also the appeal was dismissed in default owing to the absence of the appellant on the day fixed for the hearing of the appeal. . The only contention raised before and overruled by the learned Judges was that the Civil Judge was under an obligation to proceed in the manner laid down in Order XLI, rules 30 and 31. There is nothing to indicate that on the date for the hearing of the appeal, the service was not complete. On the other hand, it could be presumed in the circumstances of the case. It was in that context that a revision was held to be incompetent. In Multan Central Cooperative Bank v. Nawab Mushtaq Muhammad Khan (P L D 1974 Lah. 111) a learned Single Judge was dealing with the Execution of First Appeal. On an objection taken as to the competence of the appeal on ground of non- satisfaction of the conditions laid down in section 47, C. P. C., counsel for the appellant prayed that the appeal may be treated as a revision. The prayer was declined on the ground that alternative remedy by way of a separate suit under section 73(3), C. P. C. was available to the appellant. Relying on Joti Ram v: Beli Ram Barkat Ram (A I R 1935 Lah. 791.), the learned Judge took the view that where another remedy is open to a litigant the: High Court would not interfere under section 115, C. P. C. In Mai Das and another v. Mst. Dhan Devi and another, the same view was taken that where other remedies were available a revision petition was not to be entertained. The phrase "case decided" was also explained by the learned Judge as something decided which is complete in itself so that it is a muter independent of and separable from the quit. Although ordinarily, Courts have declined to exercise the revisional jurisdiction where an alternative remedy is available, yet this is not an inflexible rule to be rigidly followed and a departure could be justifiable grade if required by the circumstances of the case. Reference may be made in this regard to Ayodhyaprasad v. Secretary of State (A I R 1924 Nag. 298). In Lila v. Mahange and others, a Full Bench case authority, it was observed by Sulaiman Acting Chief Justice as follows:‑

43. "Section 115 is no doubt discretionary and therefore it is open to the High; Court to decline to interfere in particular cases. As a matter of practice it may be conceded that ordinarily the High Court would not interfere if another convenient remedy is open to an applicant, particularly when that remedy is by way of appeal to a lower Court. But it cannot be laid down as a general proposition that the High Court has no power of interference of all and should not interfere where there is another remedy by way of a suit open to the applicant. The remedy by way of separate suit would involve a protracted litigation through several Courts and is not always a convenient remedy when more effective and speedy remedy is available. There is no jurisdiction for restricting the power conferred upon the High Court under section 115 by laying down that no revision should be entertained when a remedy by suit lies. Each case must be considered in its own merits and if the Court below has acted with out jurisdiction or with material irregularity and the applicant has been seriously prejudiced and interference is called for in the interest of justice, there is no reason why we should drive the applicant to a more circuitous remedy by way of a separate suit. We accordingly overrule the preliminary objection."

44. In Bakhshish Singh and others v. Biru, a judgment by Shadi Lai, C. J. contained the following observation, which is quite relevant:‑

45. "There can however be no doubt that there is no inflexible rule that where an aggrieved party has another remedy available, to him, the High Court should never interfere in revision. There are several judgments in which the High Courts have interfered on revision under section 115, C. P. C. even though the appellant had a remedy by a suit. The discretionary jurisdiction of the High Court has been exercised in order to avoid unnecessary hardship and multiplicity of proceedings. This principle is fully applicable to the facts of this case."

46. A similar view was taken in Rama Charan Das v. Hira Nand, which was a Full Bench authority and to which Justice Din Muhammad who had taken a different view when sitting singly in Mat Das and another v. Mst. Dhan Devi and others was a party. The principle was reiterated that it was not an inflexible rule that where another remedy by way of a separate suit is open revision al jurisdiction cannot be exercised. The relevant observation is as follows:‑

47. "The manner in which the learned subordinate Judge has dealt with the question that arose before him for decision is not only exceedingly unsatisfactory but is manifestly perverse. In view of the very grave and material irregularities committed by him and the gross perversity shown by him in handling the case, I should have no hesitation in setting aside his order in the exercise of our revisional jurisdiction and in holding that, on the evidence on the record, and in the absence of any other claimant to the gaddi, Ram Charan Das has proved a prima facie right to be impleaded as a legal representative of Bharat Das, the deceased plaintiff. Mr. Puri for the respondent urged that, in view of the fact that another remedy is open to the petitioner by way of a regular suit, this Court should not exercise its revisional jurisdiction in his favour. It is by no means an inflexible rule that where another remedy by way of a regular suit is open, revisional jurisdiction should under no circumstances be exercised. Further, I do not think that another suit would afford the petitioner in the present case an equally efficacious remedy. No doubt it will be open to him to claim the suit property on behalf of the temple and in that suit the question of title as between the temple and the defendant, as also the question of the plaintiff's status as the Manager of the temple will be tried and decided. However, in that suit the petitioner will not be able to avail himself of the compromise which the respondent is alleged to have made with Bharat Das and in which was the subject‑matter of injury at the time of Bharat Das died."

48. The above view was approved by this Court in Municipal Committee, Bahawalpur v. Sh. Aziz Elahi, delivered by my Lord the Chief Justice. The precise question before the Court was as to whether the expression "in which no appeal lies therero" occurring in section 115 of the C. P. C. meant that the appeal must lie directly to the High Court or also included a second appeal as held by the High Court in its order under appeal. Yet a very relevant and useful discussion of the point now in issue is contained in the judgment and is as follows:‑

49. "Even in cases where the order or a decision sought to be challenged does not amount to a decree, the question will arise as to whether the High Court will, in the exercise of its discretion under section 115 of the Code of Civil Procedure, favour interference if another remedy, which was open to a party, has not been pursued by him. The words used in section 115 are that the "High Court may call for the record" and, as such, it is not incumbent upon the High Court to call for the record in every case. As a general rule the principle to be followed in all such discretionary matters is that special and extraordinary powers ought not to be exercised in favour of an applicant who has been negligent in pursuing the normal remedies open to him. Thus where an appeal lay to some other Court and could have been filed if the applicant was diligent but he has not done so, then the High Court should not ordinarily entertain a revision even if the order or decision complained of does not amount to a decree. Similarly, where an aggrieved party could have brought a separate suit to challenge the order sought to be revised, the High Court will not, as a rule, interfere in revision. Thus an order under Order XXI, rule 52 of the Code of Civil Procedure, determining the priority between the decree‑holder and a third person or a decision under section 9 of the Specific Relief Act, which could have been challenged by a separate suit, will not ordinarily be interfered with in revision. This rule is not, however, an inflexible one and it will, no doubt, depend upon the special circumstances of each case whether it will be followed or not. Normally, where the applicant has no other remedy left, the High Courts are inclined to take a liberal view, but where the case is one which does not clearly fall under the terms of section 115, no revision can be entertained in any event."

50. It is abundantly clear that no serious objection could be taken to the competence of a revision under section 115 of the Code of Civil Procedure in the rather peculiar circumstances of the case, notwithstanding the fact that as a matter of abundant caution and apparently in compliance with the direction contained in the impugned order, of the High Court a fresh application for the re‑admission of the appeal was jointly filed by the Central Government and the Manager and stated to be still pending before the District Judge. It would be indeed difficult for the appellant to plead before that Court that its order was without jurisdiction having been passed in a perfunctory manner without consciousness of the fact that service had not teen effected on the respondent or even that of its own discretion not to dismiss the appeal in default. By no means, therefore, a remedy under Order XLI, rule 19 may be deemed to be an effective remedy, wherein normally the principal ground for restoration of appeal would be to satisfy the Court that the appellant had sufficient cause for non‑appearance which could be reasonably explained away to the satisfaction of the Court. The scope of the revisional powers of the High Court though circumscribed by conditions of excess of jurisdiction, failure to exercise jurisdiction, illegal exercise of jurisdiction, is nevertheless very vast and corresponds to a remedy of certiorari and in fact goes beyond that at least in two respects inasmuch as: Firstly, its discretionary jurisdiction may be invoked by the Court suo motu, and Secondly, the Court "may make such order in the case as it thinks fit".

51. In Rangrao v. Pandurang and another (A I R 1924 Nag. 154), it was held that under section 115 of the C. P. C., the High Court could and might deal with a ease under that section without there being any application by any of the parties and may in the special circumstances pass such orders as it thinks fit In this case the Small Causes Court passed a decree against defendant No. 2 and exonerated defendant No. 1 and on revision the High Court exonerated defendant No. 2. It was held that despite the fact that the plaintiff bad not appeared in revision, he could still be given a decree against defendant No. 1.

52. In M. H. Saya & Co. v. Wazir Ali Industries Ltd. the view taken by this Court was that it was competent for a stranger to a suit or proceedings to file an appeal, if he was adversely affected by the order passed in such suit or proceeding.

53. It is thus not at all necessary for the appellant to file a separate suit as suggested by the learned counsel for the respondent and the order of restoration of appeal before the District Judge could be adequately achieved while avoiding multiplicity of proceedings.

54. We now come to the next ground of attack of maintainability of the revision petition before the High Court on the point of limitation. We have already referred to a large number of authorities relied upon by the learned counsel for the respondent in support of his contention that although no limitation was prescribed yet the revision petition had to be filed within 90 days.

55. The principle laid down in these authorities is that revision petition filed beyond the un-prescribed limitation of 90 days could also be entertained if the Court was satisfied as to the reasons for the delay: In the instant case we find that an appeal was filed in the High Court having been subsequently discovered to be incompetent a request was made to the Court to treat the same as a revision with some additional grounds: The explanation offered was that the right of the petitioner to file a second appeal on account of dismissal in default of the first appeal had been extinguished by the gross r professional misconduct and collusive behaviour of the counsel against whom proceedings were being initiated. It was stated at the bar by Mr. S. M. Zafar that in fact proceedings bad already been initiated against the Advocate, Considering the allegation in the context of successive dismissals in default of the appeal as well as the application for its restoration, we are satisfied that this offered a satisfactory explanation of the laches and it is presumably for this reason that the learned Judge in the High Court did not raise any objection on this account. Since the Limitation Act is not applicable to a revision, the Court was under no obligation to consider the question of limitation, more so when the point was never raised by the Caveator before us. It may also be relevantly mentioned in this context that no Rule has been framed by any High Court under its rule‑making powers prescribing limitation for revision. It is a well‑known principle of the administration of justice that no litigant should be made to suffer at the hands of the Court. We have, therefore, no hesitation in overruling the objection taken on the ground of limitation.

56. Having disposed of the technical objections, we now come to the merits of the case. The precise point for determination is as to whether in the circumstances of the case the District Judge was under an obligation to dismiss the appeal in default as held by the learned Single Judge in the impugned judgment. We have already reproduced Order XLI, rule 17 in the earlier part of the judgment.

57. The first question to be considered is as to what precisely is meant by the expression "called on for hearing" in the context in which it is used in Order XLI, rule 17. It may be recalled that on the basis of a large number of authorities mentioned earlier, learned counsel for the appellant bad contended before us that the word "hearing" as used in this context meant "an effective bearing" when anything germane to the appeal would be done or had to be done. The expression as used in Order IX, rule 8 and Order XVII, rule 2 was interpreted in Sheikh Abdul Rahman v. Shib Lal Sahu and others (A I R 1922 Pat. 252). It was observed as follows:‑

58. "The word `hearing' has not been defined in the Code but it is obvious that it is used in different rules with a view to state the different purposes for which a date for bearing of the suit is, fixed. Now Order IX, rule 1, read with Rule 3, it would appear that after the institution of the suit when the summons is issued upon the defendants calling upon them to appear upon a particular date and that date is the first hearing of the suit and if the parties fail to appear when the suit is called on for hearing on that date the plaintiff's suit is dismissed for default. Various steps have to be taken by the parties in a suit in order that it may be ready for final hearing which means the examination of witnesses, the tendering of documents, and the hearing of arguments. At the intermediate stage in order to enable or compel the parties to take necessary steps in the prosecution of the case the Court may fix dates for some particular action to be taken. These dates are dates for hearing of that, particular matter which is specified is the order of the Court."

59. During the intermediate stage in a suit the word "hearing" is used in the context of those particular matters as mentioned above and not for the hearing of the case: as such. In this case the dismissal of suit in default on the day fixed for appointment of a Guardian was considered to be without jurisdiction. In Mst. Barkat Bibi v. Fateh Ali, the word "hearing" as used in Order IX, rule 3 was explained by Cornelius, J. as the date on which the investigation of any matter germane to the suit was to be performed by the Court. In Ghulam Farid Muhammad Latif v. The Central Bank; of India Ltd., Lahore, the order of dismissal in default made under Order IX, rule 8 was set aside on, the ground that the word "hearing" as used in this provision as also in Order XVII, rule 2 meant "effective hearing" and not merely a day fixed for the appearance of the parties. In Sh. Ghulam Mujraba and others v. Noor Muhammad Khan (P L D 1971 Lah. 746), same view was taken and "hearing" was interpreted to be a date on which the matter is fixed before the Court towards further proceedings of the case. It was held that in the circumstances of the case the date fixed was only to see as to whether a file which was being summoned for the last two yearn had been received or not and therefore, it f did not amount to the hearing of the suit which could not, therefore, be dis missed for the non‑appearance of the plaintiff: the order was set aside. In Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies on 16th March, 1960 a date fixed for evidence, when both the parties were present, the plaintiff sought adjournment on the ground that his counsel was busy in the High Court. The case was then adjourned to 21‑4‑1960 which was subsequently declared to be a holiday. It was put up before the trial Judge on the next day, i.e. 22‑4‑1960 when the defendant and his counsel absented. Proceedings were taken ex parte against them, which were set aside on the ground that, it was not date fixed for hearing. In Rahim Bux and another v. Gul Muhammad and 2 others (P L D 1971 Lah. 746), 30th of September 1963 was fixed for filing of written statement by defendants but owing to a mistake on the part of the Reader the case was taken up, instead on 26th July 1963 and dismissed for non‑appearance of the plaintiffs. It was held that it was not a date fixed for hearing of the case but for filing of the written statement and further that the order of dismissal was void ab initio and no period of limitation ran against a void order. It was further held that in the circumstances of the case section 151, C. P. C. could also be resorted to for restitution of the same. In Haji Ghulam Rasul v. Allah Ditta the case was fixed for arguments but was dismissed in default for the absence of the plaintiff. It was held that the Court should have heard arguments of defendants and disposed of the case on merits or waited till the end of the day. The order of dismissal was set aside.

60. As would appear from the foregoing discussion, all these authorities dealt with cases of dismissal of suits. The expression "called on for hearing" as used in Order XLI, rule 17 obviously presumes the completion of all earlier steps envisaged by rules 11 to 16 of Order XLI. Unlike the suit there would be no question of filing the written statement or of recording of evidence and therefore, an effective hearing would be one on which arguments were to be heard. This obviously presupposes the service of the parties and therefore, the Court was under an obligation to ascertain in the first instance that the respondent had been served. It is evident that the appeal bad been received by the Additional District Judge on transfer from the District Judge on 10‑12‑1970 and was straightaway fixed for arguments for 11‑1‑1971 with notice to the parties. Rule 12 of Order XLI clearly envisages the essentiality of the service of the respondent. Of course, the appeal could be dismissed for the non‑appearance of the appellant on two earlier stages: Firstly, it can be dismissed in limine if the Court is not satisfied that a prima facie case is made out and in that event neither the record may be sent for, nor a notice may be issued to the respondent. That is the stage envisaged by rule 11. If, therefore, on a day fixed under this rule the appellant does not appear the Court may make an order that the appeal be dismissed. Dismissal at this stage is also discretionary and furthermore the order of dismissal is appealable It cannot be disputed that in the case before us the order of dismissal was not made under this provision. Straightaway on receipt of the file the Additional District Judge sent for the record, issued notices to the parties and fixed the case for arguments. Once the appeal crosses the hurdle of preliminary hearing under rule 11, then under rules 14 and 15 of Order XLI the appeal cannot be heard and decided without the service of the respondent or his counsel. The mandatory provision contained in rules 14 and 15 makes the position absolutely clear that the notice issued to the respondent shall be delivered and in the event of his non‑appearance, the appeal will be heard ex parte. Rule 16 envasages the presence of the parties and if having heard the appellant in support of his appeal the Court finds that no case is made out it may even dismiss the appeal without calling upon the respondent to reply. Rule 16, therefore, clearly proceeds on the presumption of the presence of the parties. If, however, the appellant does not appear at this stage the Court may make an order of dismissal in default. Here too a discretionary power has been conferred on the Court and it is under no obligation to dismiss the appeal. On the other hand the view taken by the High Court in the impugned order proceeds on the assumption as if no discretion or option vested in the Additional District Judge not to dismiss the appeal which he was under an obligation to dismiss. The conclusions we have reached, therefore, are: Firstly that it was the duty of the Additional District Judge to ascertain that the respondent had been duly served and this he did not discharge and, therefore, the case could notes be called for hearing on that date, Secondly, that be had acted rather mechanically without being aware of his discretionary power not to dismiss the appeal and therefore, the order of dismissal having been made in ignorance of jurisdiction was void and a nullity.

61. In Musaliarakath Muhammad v. Nanaviakrama The Zamorin Raja Avergal and others (A I R 1923 Mad. 13), the learned Judges traced the history of Order XLI, rule 17 which corresponded to section 556 of old Code, the only difference between the two provisions, however, being that the expression "shall be dismissed" as existing in the earlier provision was substituted by the expression "the Court may make an order that the appeal be dismissed", the obligation to dismiss yielding place to a discretion. While interpreting the change in law, the learned Judge held that under the old Code, the Court had no power to adjourn the case and give a further chance to the absenting appellant which power was available to it under the new provision. In this case the learned judge proceeded to deal with the case on merits in the absence of the appellant and the judgment was treated as one without jurisdiction. We might also refer in this context to the argument of Haji Ghias Muhammad based on the Chitley's Commentary under Order XLI, rule 17, that in the event of absence of the appellant dismissal of appeal on merits would be illegal. This does not help the respondent. The view taken by most of the High Courts is that "the fact that the Court is bound to dismiss the appeal for default Joes not enable it to dismiss the appeal on merits but only to adjourn to another date."

62. Lastly, we would like to observe that even otherwise, the peculiar circumstances of the case would fully justify the invocation of this Court's Constitutional power to do complete justice notwithstanding the technical objections urged on behalf of the respondent each one of which has been separately dealt with and found to be untenable. The dispute relates to a very valuable piece of property situated close to Lahore Railway Station and justice of the case demands that the appeal should be heard and decided on merits, particularly in view of the conduct of the counsel should not only allow the appeal to be dismissed in default in the first instance but also allow the subsequent applications for restoration to meet the same fate. The observation made in this Court's Judgment in Zulfiqar Ali v. Lal Din that if a person "engages a counsel who was lacking in his sense of responsibility to the Court it is he who should suffer and not the other side", does not lay down an inflexible rule to be rigidly and blindly followed regardless of the circumstances of the case. In the very special circumstances of the case before us a departure is amply justified in the interest of justice.

63. The result is that, we accept the appeal but in view of the rather compli cated legal questions involved in the matter, we leave the parties to bear their own costs.

64. HAMOODUR RAHMAN, C. J.‑- I agree with the conclusions.

65. SALAHUDDIN AHMED, J.‑- I agree.

66. K. B. A. Appeal accepted.