Mst. RASOOL BIBI And Others vs PROVINCE OF THE PUNJAB Through Collector
This matter originated as a petition for leave to appeal against a Lahore High Court judgment that dismissed a revision petition regarding the dismissal of an appeal for non-prosecution. The petitioners had filed a suit for declaration and possession, which was dismissed by the trial court. Their subsequent first appeal was dismissed by the District Judge due to the absence of the petitioners and their counsel. A subsequent application for restoration was dismissed due to being time-barred and lacking sufficient cause for the absence. The core legal question was whether an appellate court is legally obligated to decide an appeal on merits despite the absence of the appellant or their counsel, and whether the dismissal of the restoration application was justified. The Supreme Court held that Order XLI, Rule 17(1) of the Code of Civil Procedure 1908 permits an appellate court to dismiss an appeal for non-appearance. Furthermore, the Court affirmed that findings of fact regarding the sufficiency of reasons for absence, made by lower courts, cannot be interfered with unless found to be arbitrary or perverse. Leave to appeal was refused.
- Does Order XLI, Rule 17(1) of the Code of Civil Procedure 1908 permit an appellate court to dismiss an appeal when the appellant or their counsel fails to appear?
- Can the Supreme Court interfere with concurrent findings of fact regarding the sufficiency of reasons for counsel's absence in a restoration application?
- Is an appellate court required to decide an appeal on merits if the appellant fails to appear at the hearing?
- Order XLI Rule 17(1), Code of Civil Procedure 1908
ORDER
RUSTAM S. SIDHWA, J.--- This is a petition by Mst. Rasool Bibi and others, petitioners, against the judgment of a learned Single Judge of the Lahore High Court dated 28-11-1988 rejecting their revision petition.
2. Mst. Rasool Bibi and others, petitioners, filed a suit for declaration against Munir Ahmad and others, respondents, claiming that they were occupancy tenants of the suit land and that they be granted possession thereof by way of consequential relief. On 27-7-1987, the Senior Civil Judge, Sialkot, dismissed their suit. The petitioners thereupon filed a regular first appeal, which came up for hearing on 6-1-1988, but as nobody appeared on their behalf, the same was dismissed by the District Judge. On 6-3-1988 the petitioners filed an application for restoration, which was time- barred and the same was, therefore, dismissed on 31-5-1988 not only on the ground of limitation, but also on the ground that there was no plausible explanation for their absence and no prayer was made for condonation of delay.
3. Being aggrieved, the petitioners filed a revision petition in the High Court, which was also dismissed by a learned Single Judge on 28-11-1988.
4. On behalf of the petitioners, it is submitted that even assuming the petitioners were absent on 6- 1-1988, when their appeal was set down for hearing, the District Judge should have examined the record and decided the case on merits, in the absence of the petitioners and their counsel, as the appeal had earlier been admitted and could not be dismissed without recording a judgment on merits. In this connection, the learned counsel has referred to the Federation of Pakistan and 2 others v. Muhammad Hanif (1981 CLC 130). It is further submitted that the absence of the counsel for the petitioners on the date of hearing on 6-1-1988 being inadvertent and due to his preoccupation in other cases, the application of the petitioners for restoration did not merit dismissal.
5. Muhammad Hanif---s case (supra) cited by the learned counsel for the petitioners does not lay down the correct law, as Order XLI, Rule 17(1), C.P.C. Permits an appellate Court to dismiss am appeal where the appellant or his counsel does not appear when the appeal is called on for hearing. In this respect Yusuf v. Mst. Rabia 1985 SCM R 1066 may be referred. As regards the reason submitted by the petitioners for the absence of their counsel on 6-1-1988, two lower Courts having found as a fact that the same was not sufficient to warrant restoration of the appeal. This Court cannot, in the absence of a finding that the reasons were arbitrary or perverse, set aside the same.
Such is not the case here. In these circumstances, the submissions raised by the learned counsel for the petitioners have no merit and are rejected. There being no merit in this petition, leave is refused.
Cited by 2 cases
- Malik MUHAMMAD AHSAN and others vs Mst. HAMEEDA BEGUM 1999 MLD 1941
- MUHAMMAD RAFIQUE Versus GHULAM QADIR 1997 CLC 689