MULLA SYED ALI vs MULLAH ASMI

1. ABDUL KADIR SHAIKH, J.--This appeal by leave is directed against the judgment of a learned Judge of the former Sind and Baluchistan High Court, dated 14th June, 1971 dismissing a second appeal filed by appellant, and in result confirming the judgment passed by Majlis-e-Shoora, Kelat Division, dated 21st October, 1970. By that judgment, Majlis-e-Shoora also dismissed an appeal of the appellant against an ex parte order of Qazi of Pasni, dated 20th March, 1970.

2. The facts briefly stated are that the appeal filed by appellant was fixed for hearing on 15th October, 1970, but for certain reasons the hearing was adjourned to Wednesday, the 21st October, 1970. On that day, appellant appeared before the Majlis-e-Shoora and presented an application of the counsel appearing for him wherein it was prayed that the hearing of the appeal may be adjourned to some other date as he was unable to attend on that day at Pasni for want of transport arrangements from Karachi as the only mode of travel was by air flights by Pakistan International Airlines which are available only on to days, that is, Mondays and Tuesdays. It was further prayed that the next hearing may be fixed either on Monday or Tuesday for he had to travel from Karachi to Pasni and the travel facility was not available except on the aforesaid to days. The Majlis-e- Shoora took no notice of the request for adjournment, and dismissed the appeal on the same day.

3. As stated earlier, appellant filed a second appeal in the High Court but this to was dismissed.

4. Leave to appeal from the judgment of the High Court was granted by this Court in order to consider whether the Majlis-e-Shoora acted legally in hearing appellant's appeal on the 21st October, 1970 without having given the appellant a notice intimating to him that his appeal would be heard on that date. In this behalf, it was contended that "appellant--- was never given any notice about the hearing of the appeal on the 21st October, 1970, and although he had applied for adjournment no order was passed on the application and the appeal was heard in spite of his objections".

5. Mr. A. Aziz Dastgir, learned counsel for the appellant submits that since the appellant was not given an adequate opportunity of hearing in support of the appeal the judgment of the Majlis-e-Shoora dismissing his appeal clearly violates the principles of natural justice. In support of this argument learned counsel pointed out that the hearing of the appeal was originally fixed on 15th October, 1970, but it was adjourned to 21st October, 1970 for which instead of serving a formal notice the appellant was summoned through the Tehsildar for appearing before the Majlis-e-Shoora, and his counsel on being informed of this position sent an application, dated 19th October, 1970 requesting for adjournment on the ground that it was not possible for him to attend the hearing of the case at Pasni due to non-availability of any transport arrangement except by Pakistan International Airlines flights which, in those days, were available only on to days, that is, Mondays and Tuesdays.

6. Learned counsel further pointed out that no order was passed on that application, and the Majlis- e-Shoora dismissed the appeal, although the appellant had requested the learned members for adjournment for the reason that he had not been given adequate notice nor his counsel was able to attend due to reasons beyond his control. On these facts, learned counsel submitted that in dismissing the appeal the Majlis-e-Shoora had clearly violated the principles of natural justice.

7. After having gone through the record we find that there is no escape from the conclusion that the Majlis-e-Shoora in dismissing the appeal clearly violated the principles of natural justice, for, by now it is well-established principle of law that right of appeal granted by a statute is a substantial right, and not an imaginary one, and the maxim audi alteram partem which is a rule of natural justice is not only applicable to original proceedings before a trial Court or Tribunal of first instance, but also to the Appellate Court or Tribunal. In "Chief Commissioner, Karachi v. Dina Sohrab Katrak", PLD 1959 SC 45, this Court held that "when a statute gives a right of appeal it should be understood as silently implying, when it is not expressly provided, that the appellant shall have the right of being heard", for, "it could not have been the intention to give the person aggrieved the right of appeal, and at the same the to leave it to the discretion of the Appellate Authority to consider or not the very representation in appeal".

8. Since this well established principle was violated by the Majlis-e---Shoora in the present case, we allow this appeal and set aside the impugned judgment of the High Court, dated 14th June, 1971 and that of the Majlis-e-Shoora, dated 21st October, 1970, and direct that the appeal of the appellant filed before the Majlis-e-Shoora be heard and decided, afresh, in accordance with law. In the circumstances, however, the parties are allowed to bear their own costs.