A declaratory suit with consequential relief was instituted by Mst. Fazal Bibi and her daughter Mst.
Salma Fardous (respondents) qua a gift deed dated 29.2.1992 and consequential mutations that the same was a forged document, ineffective and inoperative qua their rights. The suit was contested by the petitioners/defendants and was dismissed by the learned trial Court vide its judgment dated 2.4.1996. On the appeal preferred by the plaintiffs/respondents, the Additional District Judge, Pattoki proceeded to set aside the judgment of the trial Court remanding the matter for fresh decision of the suit in accordance with law. A review petition was filed by the respondents/plaintiffs. The said review petition came up for hearing before the successor Additional District Judge Pattoki who accepted the review petition for the view taken by him that "appeal should have been finalized on merits than to have been remanded on mere conjecture."
This was vide order dated 30.3.2000. The appeal eventually was fixed for 6.4.2000 which came to be heard by him and was accepted on 7.4.2000. This judgment has been assailed through this revision petition.
2. It is contended by the learned counsel that the petitioners/defendants were not afforded opportunity of hearing by the appellate Court which was hurriedly disposed of by the learned Additional District Judge and that material illegality and irregularity has been committed by the appellate Court in deciding the appeal which according to the learned counsel is apparent from order dated 30.3.2000 and the impugned judgment itself. The learned counsel for the respondents/plaintiffs while supporting the impugned judgment contends that the view taken by the learned Additional District Judge was amply justified and supported by the evidence on the record. According to him trial Court (whose judgment was under 'appeal) and about the learned even though the judgment contained some observations about the learned ii Additional District Judge (who in the first instance decided the appeal) the same could be ignored which do not otherwise affect the merits of the matter.
3. The material on the record has been perused with the assistance of the learned counsel and respective contentions have been considered in the light thereof.
4. Leaving aside all other aspects of the matter which have been agitated by the learned counsel for the petitioners, one aspect which is admitted and cannot be overlooked is that the review petition was accepted by the learned Additional District Judge on 30.3.2000 when the same day the appeal was set down for hearing for 6.4.2000. The manner in which the appeal was heard is reflective from Paragraphs 5, 10 and 12 of the impugned judgment. A portion out of paragraph 5 of the same reads like this:-- "Instead it was contended that respondents had the intention to challenge orders of this Court accepting the review- petition in the Lahore High Court, Lahore, therefore, the Court should wait for their revision petition before the High Court. Of course then no revision petition had been moved, therefore, it was directed that the respondents may move Hon'ble High Court but unless there is any order restraining further proceedings in appeal in hand, arguments shall be heard and the appeal was posted for today. Now it is stated that revision petition has been filed but that has not come up for hearing and that there is no injunctive order of the High Court, restraining further proceedings, in the appeal in hand. As given above, this being an appeal under direction of Hon'ble High Court which had to be disposed of latest by 10th instant and on tomorrow this Court being on tour to District Jail, Kasur for a jail trial, adjournment could not be granted. In spite of that learned counsel for the respondents then came up to state that he is not having the brief with him which has been taken away from him so to no arguments. Counsel for the appellants had come from Chunian to attend this appeal though he has fixed two days for Pattoki i,e, Wednesday and Thursday. However, he has referred to the written arguments placed on record by both the parties but astonishingly none from both sides were available on record. Ahlmad was sent for who could not trace out the same and stated that perhaps the same might have been retrieved from the record in the Copy Agency. Still he could not trace out the same from there too. As given above, since I had only one day for disposal of this appeal on which arguments had already been heard touching the merits of the case to some extent when review petition was disposed of therefore, the matter was kept for orders. Record perused by myself keeping in view the arguments already advanced by learned counsels for the parties Impugned judgment is perused, in particular, eye to eye with the statements of P.Ws and D.Ws. Documentary evidence is also gone . through Findings follows."
Whatever may be the findings recorded by the learned Additional District Judge in the impugned judgment, it is evident that the appeal was decided without hearing the petitioners (respondents before the lower appellate Court) even the written arguments were not on his file. Despite that he proceeded to decide the appeal on merits; apparently due to his own constraints that he had to conduct a jail trial. Such a disposal of appeal is not contemplated by law. Provisions of Order XLI of Code of Civil Procedure, 1908 prescribe the manner and procedure to be followed in deciding the appeals. Rule 16 thereof is relevant in this context, which reads as follows:-- "16. Right to Begin.--(1) On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal.
(2) The Court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal, and in such case the appellant shall be entitled to reply."
Such "hearing' visualized by this rule postulates the advancement of arguments to be addressed by the parties orally in presence of each other. Likewise Rule 30 of Order XLI CPC also envisages a "hearing" before pronouncement of the judgment. It all shows as to how much importance and emphasis has been laid to due opportunity of hearing to the party, particularly the respondents side, the beneficiary of the judgment under appeal. The disposal of the appeal in the present case undoubtedly was without hearing them and the judgment of the trial Court (by which the suit of the respondents had been dismissed) was reversed through the impugned judgment in that manner. Suffice it to observe that few days adjournment of the appeal would not have made much difference, however, in a zeal to dispose of the matter expeditiously i,e, same day the appellate Court over-looked the established principles qua decision and disposal of the appeals. which ultimately resulted not only in inconvenience to the parties, but has also delayed the disposal of the matter. There is no cavil that justice delayed is justice denied, but there is equally the other aspect of the matter that some times justice harried is justice buried. It is said that an attempt by the Court to do justice is vanity. The Court, however, being charged with the duty' of administering justice is expected to maintain a balance, so that neither the matter is delayed unnecessarily nor it is disposed of in such a hasty manner as may be violative of basic principles of law: Such disposal of appeal being contrary to law, the judgment is liable to be set aside. This is besides the observations in paras 10 and 12 of the impugned judgment which contained some remarks about the judicial Officers.
In such view of the matter, I am constrained to set aside the judgment impugned, as a result, the appeal filed by the respondents/ plaintiffs will be deemed pending before the First Appellate Court which as per the consensus of the learned counsel for the parties, will now be heard and decided in accordance with law by the learned District Judge Kasur himself. The parties to cause their presence before him on 29.5.2004 who in order to avoid any further delay in the matter, will proceed to hear and decide the appeal before 31.7.2004. No order as to costs.