1. ' The brief facts out of which the present revision petition arises are that respondent No,4 filed .a suit for declaration with consequential relief against the public-at-large including the petitioner in the Court of Civil Judge 1st Class, Lahore. The learned Civil Judge dismissed the suit vide judgment and decree, dated 24-1-1998. Respondent No,4 being aggrieved filed appeal in the Court of Additional District Judge, Lahore. The appeal was dismissed vide order, dated 1-2-2005. Respondent No,4 being aggrieved filed application for restoration of the same in the Court of Additional District Judge, Lahore, who accepted the same vide order, dated 14-2-2005, hence the present petition.
2. The learned counsel of the petitioner submits that learned Additional District Judge dismissed the appeal of respondent No,4 on 1-2-2005 in the following terms:- "Amended appeal for arraying the legal heirs has not been filed in spite availing four opportunities.
2. No reasonable cause has been given for non-compliance of the order of this Court. Hence, appeal in hand is dismissed."
3. ' Whereas respondent No,4 has filed application for restoration of the same on the following grounds:--
(2) That the non-submission of the amended appeal was not intentional and wilful. It was only due to the unawareness on behalf of the appellant that the Court has ordered to submit the amended appeal.
(3) That during this period the mother of the counsel of the appellant has died and he remained busy in that respect and the amended appeal could not be filed in time.
4. ' The learned counsel of the petitioner submits that the First Appellate Court erred in law to accept the application of respondent No,4 without notice to the petitioner and the vested right has accrued in favour of the petitioner after passing the order by the Additional District Judge on 1-2- 2005. He further submits that there is no sufficient ground to accept the application of respondent No,4, which is not in consonance with the law laid down by the superior Courts. In support of his contention, he relied upon the following judgments:-- ' Sayed Muhammad Shah v. Abdul Jabar Muhammad Yaqub and others AIR (30) 1943 Sind 132 and Sardar Sakhawat-udDin and 5 others v. Muhammad Iqbal and 2 others PLD 1983 Lah.
5. 448.
3. I have given my anxious consideration to the contentions of the learned counsel of the petitioners and perused the record.
4. It is admitted fact that late Mst. Hameedan Khatoon filed appeal against the judgment and decree of the trial Court dated 24-1-1998 in the Court of Additional District Judge, Lahore. During the pendency of the appeal Mst. Hameedan Khatoon died and the list of the legal heir was filed. The First Appellate Court directed the respondents to file amended appeal in order to bring on record legal heirs of Mst. Hameedan Khatoon, respondent availed four opportunities for the said purpose.
6. Respondents failed to comply with the order within the aforesaid four opportunities and the First Appellate Court was constrained by the circumstances to dismiss the appeal vide order, dated 1- 2-2005. Respondent No,4 filed an application for restoration/readmission of the appeal on 8-2- 2005, which was accepted vide order, dated 14-2-2005. In case' the aforesaid facts are put in a juxtaposition then the order dated 1-2-2005 does not fall under Order XVII, rule 3, C.P.C. Similarly, Order VI, rule 18, C.P.C. Is also not attracted as the case does not fall under Order VI, rule 17, C.P.C.
7. Order VI, rule 18, C.P.C. Only prescribes penal consequences in case the party fails to file amended petition subject to the condition that amendment is sought under Order VI, rule 17, C.P.C. And fulfil the requirements under Order VI, rule 17, C.P.C. In case Order VI, rule 18, C.P.C. Is attracted then the First Appellate Court cannot dismiss the appeal in default. In arriving to this conclusion, I am fortified by the law laid down by this Court in Mst. Safia Bibi's case 1989 MLD 4535. Even otherwise the Court has to Iextend the time in filing the amended pleadings in, terms of Order VI, rule 18, C.P.C.
8. In arriving to this conclusion, I am fortified by the law laid down in the following judgments:-- ' Muhammad Hussain Khan and others v. Nawab Khan PLD 1958 AJK 14 and Pahali Raut v. Khulana Bewa and others AIR 1985 Orissa 165.
9. ' As mentioned above, Order XVII, rule 3, C.P.C. And Order VI, rules 17 and 18, C.P.C. Are not attracted in the present case in any canon of justice in terms of the language used by the Legislature in its wisdom; therefore, order of the First Appellate Court dated 1-2-2005 is without lawful authority. It is settled principle of law that when the basic order is without lawful authority then the superstructure shall have to fall on the ground automatically as per law laid down by the Division Bench of this Court and the Honourable Supreme Court in the following judgments:-- ' Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 10.4 and Crescent Sugar Mills and Distillery Ltd.
10. Faisalabad v. Centfal Board of Revenue, Islamabad PLD 1982 Lah.
11. 1.
12. It is admitted fact that appeal was dismissed on 1-2-2005 in the absence of the petitioners and their counsel; therefore, on the basis of the analogy prescribed under Order IX, rule 4, C.P.C. That there is no requirement to restore the appeal/readmission of the appeal without notice to the petitioners. In arriving to this conclusion, I am fortified by the law laid down by the superior Court in the following judgments:-- ' Mst. Rehmat's case PLD 1976 Kar. 953 and Khushi Muhammad's case PLD 1976 Lah.
13. 99.
14. In case respondent No,4 failed to file amended appeal in terms of the previous orders then as mentioned above, Order XVII, rule 3 read with Order VI, rules 17 and 18 are not attracted the Order XXII read with Order I, rule 10, C.P.C. Are attracted under which before the substitution by the Law Reforms Ordinance, (XII of 1972), the appeal has to abate but after substitution of the aforesaid Law Reforms Ordinance, the appeal cannot be abated. In arriving to this conclusion, I am fortified by the Law laid down in Muhammad Riaz v. District Judge, Sialkot and 5 others PLD 1993 Lah.
452. It is also settled principle of law that superior Courts insisted that cases be decided on merits instead of technicalities as per law laid down by the Honourable Supreme Court in Khuda Yar's case PLD 1975 SC 678. The Court has inherent powers to set aside the impugned order in case it is not within the parameters of the provisions of C.P.C. As per law laid down by the Full Bench of the Honourable Supreme Court in Jan Muhammad's case PLD 1981 SC 513. The judgments cited by the learned counsel of the petitioners are distinguished on facts and law. The judgment of Sardar Sakhawat-ud-Din and 5 others v. Muhammad Iqbal and 2 others PLD 1983 Lah. 448 is distinguished on facts and law as in the cited case the party failed to file additional written statement and despite number of adjournments allowed to them whereas in the present case, as mentioned above, respondent No,4 failed to file amended appeal with regard to the memorandum of parties name of the original appellant before the First Appellate Court. Similarly Sayed Muhammad Shah v.
15. Abdul Jabar Muhammad Yaqub and others AIR (30) 1943 Sind 132 is also not attracted in view of the distinguished features. Coupled with the fact that counsel of respondent No,4 has taken a definite ground that he could not file memorandum of parties name along with all the legal heirs after the death of the appellant before the First Appellate Court on account of the death of his mother; therefore, I do not find any infirmity or illegality in the impugned order of the First Appellate Court and the revision petition has no force. The learned counsel of the petitioners fails to bring the case within the parameters prescribed by the Privy Council while exercising power under section 115, C.P.C. To interfere in the order of the First Appellate Court as per law laid own in N.S. Vankatagiri Ayyanger and another v. The Hindu Religious Endowments Board Madras PLD 1949 PC 26. The relevant observation is as follows:-- "This section empowers the High Court to satisfy itself upon three matters; (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon question of fact or law"
16. In view of what has been discussed above, the revision petition II has no merits and the same is dismissed.