Mst. GHULAN and others vs PUNJAB PROVINCE
This revision petition arises from a suit for declaration and permanent injunction challenging the resumption of land granted under the Livestock Breeding Scheme by the Collector, Sargodha. The trial court dismissed the suit, and the District Judge subsequently dismissed the petitioners' appeal in limine. The core legal question was whether the appellate court erred in dismissing the appeal on merits rather than rejecting it as improperly constituted due to the absence of the impugned decree. The High Court held that the appellate court should have rejected the appeal as improperly constituted under Order XLI, Rule 3 of the Code of Civil Procedure 1908, rather than dismissing it on merits. This approach would have preserved the petitioners' right to file a fresh appeal within the remaining period of limitation. Consequently, the High Court set aside the appellate judgment, treating it as a rejection of the appeal, and granted the petitioners liberty to file a fresh appeal accompanied by an application for condonation of delay, to be decided by the appellate court in accordance with the law.
- Whether an appellate court can dismiss an appeal on merits when it is improperly constituted due to the absence of the impugned decree?
- Does an appellate court have the authority to reject an appeal as improperly constituted instead of dismissing it on merits?
- Is a party entitled to file a fresh appeal if the initial appeal was rejected as improperly constituted?
- Order XLI Rule 1, Code of Civil Procedure 1908
- Order XLI Rule 3, Code of Civil Procedure 1908
' This revision petition arises out of a suit for declaration and permanent injunction filed by Malik Dilbaz Khan (predecessor-in-interest of the petitioner) on 4-4-1973 challenging the order passed by the Collector, Sargodha, whereby the land granted to the plaintiff under the Livestock Breeding Scheme was resumed. The disputed land measuring 12-1/2 acres was situated in Chak No,93/NB, Tehsil and District Sargodha. It was ordered to be resumed primarily on the ground that he deceased plaintiff alongwith his two brotheRs, namely Malik Gulbaz Khan and Shahbaz Khan had earlier been granted 300 Acres of land under the Livestock Breeding Scheme and was not entitled to another grant of 25 acres.
2. The suit was resisted by the respondents and after recording evidence of the parties the trial Court returned findings on issue No,4 against the petitioner and dismissed the suit vide judgment and decree dated 21-1-1977. The petitioneRs,' appeal was dismissed in limine by the learned District Judge, Sargodha vide judgment and decree dated 27-1-1977.
3. The learned counsel of the petitioneRs, contends that once the appellate Court had summoned the record which contained the impugned decree the provisions of Order XLI, rule 1 of the C.P.C.
Were not applicable and the appeal should not have been dismissed as being incompetent.
Further submits that at the most the Court could have rejected the appeal and not dismissed the same on merits. Lastly he submits that a revision petition is directly entertainable by the Court to undo the illegality committed by the trial Court.
4. There is considerable force in the argument of the petitioner's learned counsel that the appellate Court could have only rejected the appeal as being improperly constituted leaving it open to the petitioner to file appeal within the remaining period of limitation which at the relevant time was about 24 days. The record of the appellate Court contains an affidavit of Malik Janbaz, one of the petitioneRs, to the effect that he had applied for certified copies of the judgment and decree of the trail Court. However, he had no occasion to place the same on the record because the appeal was dismissed on 27-1-1977. The learned counsel for the respondents had no objection to the acceptance of the revision petition on the above ground urged by the petitioneRs,' learned counsel leaving it open to the petitioneRs, to file a fresh appeal with an application for condonation of delay.
5. Resultantly this revision petition is allowed and the impugned judgment, dismissing the appeal on merits, is set aside. The said judgment shall only amount to the rejection of the appeal under Order XLI, rule 3 of the C.P.C. And the petitioneRs, shall be at liberty to file a fresh one within the remaining period NA limitation with an application for condonation of delay. The appellate Court shall decide the appeal and the application for condonation of delay, if filed by the petitioneRs,, in accordance with the law. The parties are left to bear their own costs.