NOWSHERI KHAN vs SAID AHMAD SHAH

1. NASIM HASAN SHAH, J.-This appeal by leave of this Court is directed against the judgment dated 18-6-1978 passed by a learned Single Judge of the Peshawar High Court, whereby he dismissed the civil revision petition (C. R. P. No. 66 of 1977) filed by the appellant against the judgment of the District Judge, Malakand dated 18-4-1977 rejecting his application for restoration of his appeal which had earlier been dismissed for non-prosecution on 16-9-1976.

2. The facts, which form the background briefly stated, are as follows :- On the 6th of June, 1976, the Civil Judge, Malakand had decreed the suit of the plaintiff-respondent against the appellant herein for possession of the house in dispute. The appellant went up in appeal against the above judgment and decree before the District Judge, Malakand. The said appeal was presented before the District Judge, Swat on 6-8-1976, who passed the following order thereon, on the same date :- "Present : Appellant in person. Notice to respondent and record for 4-9-1976".

3. When the case came- up for hearing on 4-9-1976, it transpired that the District Judge was on tour.

4. The respondent, however, appeared in Court and the Mobarrir (presumably also the Reader of the Court) recorded the following note in the order sheet :- "Counsel for the appellant absent and the respondent present. The District Judge is on tour of Chakdara. The case adjourned for 8-9-1976."

5. On the 8th September, 1976, the Presiding Officer was absent and the Moharrir again adjourned the case with the following note :- "Present: Respondent in person and appellant absent. The Presiding Officer has gone to Malakand to see accommodation for the Judicial Officer. The case adjourned for 16-9-1976."

6. However, on 16-9-1976, when the case came up for bearing, none of the parties appeared before the learned District Judge. In this situation, he proceeded to dismiss forthwith the appeal "for non- prosecution". The text of the order passed by him is as follows "Present : None on either side. Dismissed for non-prosecution.

7. (Sd.) Sessions Judge, Swats."

8. The appellant submitted an application for restoration of his appeal before the District Judge on 30-10-1976 but the application was dismissed by the learned District Judge, Malakand, by the order dated 18-4-1977, both on merits as well as on the ground of limitation because the appeal was dismissed on 16-9-1976, while the application for restoration was filed on 30-10-1976 i.e. 44 days after the dismissal of the appeal for non-prosecution.

9. Aggrieved by the abovementioned order, the appellant filed a revision before the Peshawar High Court under section 115 of the Civil Procedure Coda although an appeal was competent under O.

10. XLIII, r. 1 (t) of the C. P. C. But the same was dismissed by a learned Single Judge on 18-6-1978 on the ground that the appellant herein bad not been prosecuting his case diligently inasmuch as neither he nor his counsel had appeared on the date fixed and also because his application for restoration of his appeal was submitted beyond the period of limitation i.e. 30 days. Hence this appeal before this Court, by its leave.

11. The learned counsel for the parties have been heard but we regret to say that they have not made any appreciable contribution to clarifying the main question, which requires resolution .In this case.

12. The main question is whether the date fixed by the Moharrir (or the Reader of the Court), namely, 16-9-1976 could be considered to be the date "to which the bearing of the appeal" stood adjourned.

13. The order of the learned District Judge, Swat, dismissing the appeal for non-prosecution was obviously passed under the provisions of Order XLI, rule 17 of the Civil Procedure Code. Sub-rule (1) thereof is pertinent in the context and is reproduced below "17 (1) Where on the 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."

14. There is no dispute that the appeal was adjourned to 16-9-1976 by the Moharrir (Reader) of the District Judge as the learned District Judge was absent on the date which was fixed earlier. This Court in the case of Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies (PLD1964SC97) while discussing the provisions of Order XVII, rule 2 of the C. P. C. While interpreting the words "the date to which the hearing of the suit is adjourned" observed that "adjourned" means "adjourned by the Court". Thus the date 16-9-1976 could only be the "date to which the hearing is adjourned", if the appeal had been adjourned to this date by the Court itself and not by the Moharrir (or the Reader).

15. This, however, does not end the matter because the further question is that despite the fact the adjournment of the appeal to 16-9-1976 was by the Moharrir (or the Reader) the matter which requires consideration is whether the adjournment to the said date could not still be held to be the "date of hearing". In view of the recent amendment made in rule 5 of the Order XVII of the C. P. C.

16. It will be recalled that a new provision, namely, sub-rule (5) has been inserted by Ordinance XII of 1972 in the Civil Procedure Code, which reads as follows :- "(5) Appearance of parties on the day when the Presiding Officer is absent. --When on any day the Presiding Officer of the Court is absent by reason of illness or any other cause, the parties to the suit or proceeding set down for that day (notwithstanding the Presiding Officer would be absent) shall appear in the Court in the Court-house on that day and the Ministerial officer of the Court authorized in that behalf shall hand over the parties slips of paper specifying the other date fixed for proceeding with the suit or proceeding and signed by him."

17. The language of this rule shows that it deals with suits and is not in terms( applicable to appeals. In case of the failure of a party to appear on a date fixed, the procedure applicable under Order XVII, rule 2, C. P. C. Which is provided under Order IX, C. P. C. Applies to suits. The dismissal an restoration of the appeals, however, are dealt with in Order XLI, rules 1 and 19 separately. As such, the procedure contained in Order XVII of the C. P. C. Cannot normally be made applicable to proceedings under Order XLI of the C. P. C.

18. However, even if the provisions of rule 5 of Order XVII, C. P. C. Are held applicable to the proceedings under Order XLI of the C. P. C. On account of the provisions of subsection (2) of section 107 of the C.

19. P. C. Which provides "107. Power of Appellate Court.-(1)

(2) 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 Court of original jurisdiction in respect of suits instituted therein."

20. Even then we find that the Reader is not competent to fix the case for hearing The Reader of the Court before the amendment in the Civil Procedure Code referred to above, was not authorised to fix a date for proceeding with the suit in the absence of the Presiding Officer of the Court but could fix a date for purposes of enabling the Court to fix another date for the future conduct of the proceedings. It was only as a result of the new rule 5 inserted in Order XVII, that this has become possible. Nevertheless to prevent any plea to the effect that the parties were not cognisant of the date fixed for proceeding with the suit a condition has been laid down, namely, that the Reader shall "hand over to the parties slips of paper specifying the other date fixed for proceeding with the suit or proceedings." This is mandatory. In this case, admitted the appellant was not present either on 4-9-1976 when the case first came u for hearing, nor was he present on 8-9-1976 when the Moharrir fixed the case for 16-9-1976. In this situation, there was consequently no question of any slip being handed over to the appellant specifying the next date fix for heating of the case. Thus, rule 3 of Order XVII was not complied wit and the order of the District Judge dismissing the suit for non-prosecution on 16-9-1976 was illegal. The appeal could conceivably have been dismissed on 4-9-1976 as it was adjourned to the said date by the learned District Judge himself, in the presence of the appellant. However, since the learn District Judge was absent on 4-9-1976 and only the Moharrir was present who obviously could not dismiss the appeal, but required the parties to come on a future date when the learned District Judge was expected to be in attendance and deal with the matter. The date given by the Reader might have become the "date fixed for proceeding with the suit or proceedings", in the parties were banded over the slips of paper specifying the said other date. Without complying with this condition, which was of a mandatory nature, it was not possible to dismiss the appeal on the ground that the appellant had failed to appear on the date fixed for the bearing of the appeal [see Allah Dad v. The Board of Revenue, Sind and others (PLD 1981 Kar. 73). On the other hand, in the circumstances of this case it was necessary to duly serve the parties for the said date. This Court, in the case of the Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678) observed that before an Additional District Judge could dismiss an appeal he was under an obligation to see firstly that the party to be effected by the order had been duly served and unless this was the situation the case could not be called for hearing on that day. It further observed that in any case the power to dismiss the appeal could not have been exercised mechanically, because a discretion vested in the Court to dismiss the appeal or to give a further chance to the absenting party. It was further observed that the order of dismissal (in that case) having been made in ignorance of jurisdiction was void and a nullity.

21. The result is that the order of the learned District Judge dismissing the appellant's appeal for non- prosecution on 19-10-1976, as also his order dated 18-4-1977 refusing to restore the said appeal together with the order of the High Court dated 18-6-1978, which upheld the first-mentioned two orders, are untenable and, accordingly, are hereby sat aside.

22. The result will be that the appeal filed by the appellant in the Court of the District Judge, Malakand, will be deemed to be still pending requiring decision on the merits after due and proper notice to the parties.

23. The appeal is allowed in the above terms, but the parties are left to bear their own costs.