INAYAT MASIH Versus MUNSHI MASIH

The brief facts of this appeal are that the first appeal against the judgment and decree passed by the learned Senior Civil Judge, Sahiwal, dated 5‑5‑1984 was admitted and registered and notices to respondents were issued and record was summoned for 3‑7‑1984 and operation of the impugned judgment and decree was suspended meanwhile subject to notice. This order was passed on 7‑6‑1984. On 15‑10‑1985 the appeal was dismissed for non‑prosecution as the learned Additional District Judge, Sahiwal wrote that:‑‑

2. An application for restoration of the appeal was given under Order 41, Rule 19, C.P.C. It is noted that the application was given on 5‑11‑1985 within time. The reason given in the application was that since the case was transferred to the Court of learned Additional District Judge, Sahiwal, the appellant came to the Court and he was told that since the case is transferred in other Court, therefore, notices will be served. When the appellant did not receive a notice he came to enquire about the date of 'the appeal and on 15‑10‑1985 the appeal was dismissed for non‑prosecution. This application was accompanied by an affidavit. The learned Additional District Judge vide judgment, dated 18‑3‑1987 dismissed the application observing that the petitioner/appellant had failed to establish sufficient cause for the readmission of the appeal. The learned Court further observed that the contention of the petitioner/appellant was not supported by an affidavit of Advocate or the Clerk. The learned Court further observed that the case was transferred to this Court prior to 15‑9‑1985 and on that day the petitioners/appellants were present in Court and the case was adjourned for 15‑10‑1985 in the presence of the learned counsel for the petitioners/ appellants. Against this judgment the present First Appeal against Order has been filed.

3. Learned counsel for the appellants has argued that the litigation was pending between the parties since 1972 and the appellants were not aware of the fixation of the case before the learned Additional District Judge which was a transferee Court. The earlier order, dated 15‑9‑1985 shows:‑‑

4. The learned counsel for the appellants has relied on Nowsheri Khan v. Said Ahmad Shah 1983 SCMR 1092, Order 41, Rule 17‑‑-Appeal dismissed in default of‑‑‑Adjourned. hearing‑‑‑Meaning of‑‑‑Reader of Court in absence of District Judge adjourning appeal to some other date‑‑‑Held, such date to be "date of which hearing adjourned" only in case of appeal having been adjourned to this date by Court itself and not by Reader of Court. It was further held that "date fixed for proceeding with suit or proceedings" only in case of parties having been handed over slips of papers specifying next date‑‑‑Held further, without complying with such condition of mandatory nature, appeal not to be dismissed for non‑prosecution on such date fixed by Reader. Such date being no "date when appeal called for hearing", order of dismissal of appeal in absence of appellants without duly serving him of that date to be void and nullity.

5. Learned counsel for the appellants further submitted that when the Reader gave this date the respondent was not present. A notice was served to him. When such a date was fixed for notice, it is also not a date of hearing. Even substantial justice demands that the appeal be heard on merits. When the case was transferred to the second Court that order was written by the Reader. The learned Appellate Court was bound to record evidence and decide the application for re‑admission of the appeal.

6. The learned counsel for the respondents submitted that neither the affidavit of Clerk nor his counsel was annexed with the application for restoration of the appeal. The parties intentionally did not appear arid intentionally disappeared. The general rule that the Reader has given the date is not applicable to the present case and no ground exists under Order 41, Rule 19, C.P.C.

7. I have heard the learned counsel for the parties and have perused the record.

8. The application for restoration of appeal was within time. It was supported by an affidavit of the petitioner. It is also admitted that the case was transferred to another Court. It is also on the record that the Reader wrote the order fixing the next date and also issuing notices to the other party. Such an order as held by the Honourable Supreme Court is not a date "when appeal is called for hearing and the order of dismissal of appeal in the absence of appellant without duly serving him for that date to be void and nullity. The Honourable Supreme Court has further held that no question of limitation arises in such circumstances and application for restoration of appeal to be entertained and accepted.

9. In cases of appeal section 107 of C.P.C. provides, subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. The Rule 5 of Order 17, C.P.C. are applicable to the proceedings under Order 41 of C.P.C.

10. The appeal was adjourned by the learned Presiding Officer to 15‑10‑1985. The notices in the name of counsel and the respondents were' also issued by the Reader in the absence of learned Presiding Officer. The appeal was regularly admitted and notice to the respondents was issued by the learned Presiding Officer on 7‑6‑1984, therefore, the date 15‑10‑1985 fixed by the Reader could not be termed as a date of hearing as the learned, Presiding Officer was absent on 15‑9‑1985. Therefore, even otherwise the, substantial justice demands that the cases should be heard on merits. The learned Additional District Judge was under a duty of law to see that the case could not be called as a date of hearing on that date. The affidavit of petitioner was available on record. It was not necessary that the affidavit of the Clerk or the Advocate be also present in the above circumstances of the case.

11. Therefore, the appeal is accepted and the result is that the order of the learned District Judge dismissing the appellants' appeal for non -prosecution on 15‑10‑1985 and the order of the learned Additional District Judge for dismissing the application for restoration of appeal on 18‑3‑1987 are hereby set aside. The appeal filed by the appellants in the Court of learned Additional District Judge, Sahiwal will be deemed to be still pending and will require decision of the same on merits after due and proper notice to the parties. Since it is a very old matter a direction is given to the learned Additional District Judge to hear and conclude the appeal within a month of receipt of this order.

Q.M.H./M.A.K./I-34/L Appeal allowed.