ABDUL REHMAN Versus Syed JAFFAR HUSSAIN RAZVI (deceased)
SHAHID BILAL HASSAN, J.--- This Civil Petition seeking leave to appeal under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been brought against order dated 03.11.2025 passed in C.Ms. Nos. 2315 and 2316 of 2024 in R.S.A. No. 50 of 2010 by Lahore High Court, Multan Bench, Multan, whereby the application seeking restoration of the RSA ibid was dismissed.
2. Facts in detail need not to be reproduced here. Suffice it to narrate here that the RSA, filed by the petitioners was dismissed for non-prosecution on 26.10.2022. The petitioners filed application seeking restoration of the same accompanied with an application under section 5 of the Limitation Act, 1908 for condonation of delay, on 08.10.2024, but the learned High Court being not satisfied with the submissions, dismissed the said applications; hence, the instant Civil Petition.
3. Learned counsel for the petitioners avows the questions raised in the petition in hand and specifically argues that the fateful day, when the RSA was dismissed for non-prosecution was not a date of hearing , therefore, no penal order could have been passed by the learned High Court against the petitioners; however, despite submission of the said argument, the same was not considered which has resulted in passing of the impugned order. He prays for grant of leave in the instant petition, setting aside of the impugned order and remanding the matter to the learned High Court for decision of the RSA on merits.
4. Per contra, learned counsel for the respondents, by controverting and naysaying the submissions above, has supported the impugned order and has prayed for dismissal of the petition in hand.
5. Submission put-forth have been heard and considered. Record geos to evince that on 20.10.2022, the RSA was adjourned for submission of correct address of the respondent therein and issuance of notice parvee per order dated 13.01.2022, as reportedly, the respondent had shifted his residence and on 26.10.2022, the appeal was dismissed for non-prosecution. It is evident from the record that when the appeal was dismissed for non-prosecution, the same was not fixed for hearing rather for procuring attendance of the respondent by issuing notice parvee, therefore, the learned High Court ought not have dismissed the appeal for non-prosecution rather should have passed order with regards to said proceedings. In this regard, judgment reported as Tehsil Municipal Administrator, Faisalabad v. Muhammad Saleem and others (2016 SCMR 2009) can be referred, wherein it was held by this Court:
We note that in the earlier two orders dated 11.05.2009 and 10.06.2009 there was simple order of adjournment without noting that the appeal has been adjourned for hearing. Order XLI, Rule 17(1), C.P.C. specifically requires that it is on the date when the appeal is called for hearing and appellant fails to appear, the Court may make an order of dismissing the appeal. To us, from the order of the Court in the appeal before the High Court there is nothing to show that on 09.07.2009 the appeal itself was fixed for hearing.
Part VII of the Code of Civil Procedure (V of 1908) deals with the appeals from original decrees and section 96 provides the remedy of appeal against original decree and section 100 provides remedy of second appeal. Order XLI of the Code ibid lays down the procedure in appeals. In terms of Rule 11 of Order XLI of "C.P.C." appellate court is vested with the power to dismiss the appeal without sending notice to the lower court. By virtue of sub-rule (2) of the Rule ibid if on the day fixed or any other day to which the hearing is adjourned the appellant does not appear when the appeal is called on for hearing, the court may make an order of dismissal of appeal. Rule 12 of Order XLI of "C.P.C." deals with the day for hearing appeal which reads as under:--
"12. Day for hearing appeal.--(1) Unless the Appellate Court dismisses the appeal under rule 11, it shall fix a day for hearing the appeal.
(2) Such day shall be fixed with reference to the current business of the Court, the place of residence of the respondent, and the time necessary for the service of the notice of appeal, so as to allow the respondent sufficient time to appear and answer the appeal on such day."
It is thus manifestly clear from the above that if the appeal is not dismissed in terms of Rule 11 of Order XLI of "C.P.C." the court shall fix a day for hearing appeal. Rule 16 prescribes the manner of hearing of appeal. Rule 17(1) of Order XLI of "C.P.C." provides the consequences of default of the appellant to appear on the day fixed or any other day to which the hearing is adjourned.
6. In addition to the above, it is a settled principle of law that mere technicalities, unless offering insurmountable hurdles, are not to be allowed to defeat the ends of justice, because the principal object behind the legal formalities is to safeguard the paramount interest of justice. See Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 Supreme Court 678) , wherein it was further held:
"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 had 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.
In Musaliarakath Muhammad v. Nanaviakrama The Zamorin Raja Avergal and others, 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 does not enable it to dismiss the appeal on merits but only to adjourn to another date."
7. Turning to the question of limitation, it is observed that though Article 168 of the Limitation Act, 1908 provides thirty days for an application seeking re-admission of the appeal dismissed for non-prosecution under Order XLI, Rule 17(1) of "C.P.C." from the date of dismissal but in the light of discussions made supra order dated 26.10.2022 cannot be termed as an order passed under Order XLI, Rule 17(1) of "C.P.C.". In such scenario, residuary Article i.e. 181 of the Limitation Act, 1908 would come into play, which provides three years period of limitation. The application seeking restoration was thus well within time 1 . The petitioners should not be made to suffer due to act of the Court 2 and it would be in the interest of justice to restore the appeal of the petitioners to be decided on merits.
8. For the foregoing reasons, the impugned order is not sustainable to hold field. The Civil Petition in hand is converted into an appeal, the same is allowed, impugned order dated 03.11.2025 is set aside, consequent whereof the RSA No.50 of 2010 titled Abdul Rehman, etc. v. Syed Jaffer Hussain (deceased) through L.Rs. will be deemed to be pending before the Lahore High Court, Multan Bench, Multan, for decision afresh after hearing the parties, in accordance with law within a period of one month from the date of receipt of copy of this judgment.
9. However, before parting with this judgment, it is observed that as the petitioners conduct is also not aboveboard, therefore, in order to equalize the equilibrium and curtail the sufferings of the respondent(s), the petitioners are burdened with costs of Rs.50,000/- to be paid to the respondents before the learned High Court on the first date of hearing, positively, in case of failure the learned High Court may pass an appropriate order.
UN/A-10/SC Appeal allowed.
1 Tehsil Municipal Administrator, Faisalabad v. Muhammad Saleem and others (2016 SCMR 2009).
2 Abdul Qudoos v. Commandant Frontier Constabulary, Khyber Pakhtunkhwa, Peshawar and another 2023 SCMR 334; Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; The State v. Asif Adil and others 1997 SCMR 209; Sajawal Khan v. Wali Muhammad and others 2002 SCMR 134; Jawad Mir Muhammadi and others v. Haroon Mirza PLD 2007 SC 472; Zulfiqar and others v. Shahadat Khan PLD 2007 SC 582; Homeo Dr. Asma Noreen Syed v. Government of the Punjab through its Secretary Health, Department and others 2022 SCMR 1546 and Mian Shehzad-ud-Din and 4 others v. Member, Board of Revenue S&E Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore and another 2002 YLR 3755.