' MAULVI ANWARUL HAQ, J.-- This judgment shall decide C.R. No,881 of 1997 and C.R. No, 882 of 1997 as common questions are involved.
2. For the purpose of this judgment reference to pleaded facts would not be necessary. Suffice it say that the suits filed by respondents Nos.1 and 2 in these cases against the petitioner were contested and decreed by the learned trial Court vide judgments recorded on 12-1-1995. Appeals were filed. These remained pending with a learned Additional District Judge, Lahore, when these were dismissed for non-prosecution on 18-9-1995. Applications filed by the petitioner for readmission of the appeals were dismissed by the learned Additional District Judge Lahore vide order dated 5-3-1997.
3. Learned counsel for the petitioner contends that the appeals could not have been dismissed for non-prosecution on 18-9-1995 as these were not fixed for hearing on the said date. The contesting respondents Nos.1 and 2 have since been proceeded against ex-parte. The case has been called.
No one has turned up on their behalf.
4. I have gone through the copies of the record appended by the learned counsel pursuant to the order passed by this Court, I find that the appeals came up on 27-7-1995 when it was noted that the presiding officer is on leave and on the request of counsel for the respondents the case was adjourned by a duty learned Additional District Judge on 30-7-95 for {{URDU TEXT}}. On 30-7-95 the case was adjourned to 18-9-95 on the request of the learned counsel for the respondents for {{URDU TEXT}}. On 18-9-95 the petitioner was marked absent and the appeals were dismissed for non-prosecution.
5. It is but apparent on the face of record that the appeals were not to be heard on 18-9-95 rather some further proceedings were to be conducted. Under Order XLI, Rule 17(1), C.P.C. An appeal can be dismissed because of absence of the appellant only on a date on which the appeal is fixed for hearing. It was held by the Honourable Supreme Court in the case of Manager, J & K, State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678) that in the matter of an appeal date of hearing is date on which the arguments are to be heard. The case was not fixed for arguments in the appeals on 1879-1995 and as such appeals could not have been dismissed for non- prosecution. Both the civil revisions are accordingly allowed. The impugned orders dated 5-3-1997 as also 18-9-1995 are set aside. The result would be that the appeals shall be deemed pending. The petitioner shall put in appearance before the learned District Judge, Lahore, on 30-6-2009. The learned District Judge shall requisition the record and after summoning the contesting respondents proceed with the matters himself or entrust appeals to a learned Additional District Judge, who shall issue notice and decide the appeals on merits. No order as to cost.
'A copy of this judgment be immediately remitted to the learned District Judge Lahore.