CH. MUHA MAD IBRHAIM ZIA , J.---The captioned appeal, with the leave of the court, is addressed against the order of the High A Court dated 13-3-2009, whereby Appeal No,197 of 2005 has been dismissed for non-compliance of the court order.
2. The precise summary of facts necessary for disposal of this appeal is that the appellant filed Appeal No,197 of 2005 on 12-8-2005 in the High Court against the judgment of the Additional District Judge Haveli Kahoota dated 7-6-2005. On 27-9-2007, during the proceeding of the appeal, an interim order was recorded that a report regarding respondent No,21 has been received that he is residing in Abbaspur and the appellant was directed to deposit process fee and furnish fresh address within one week and on doing the needful the respondent be summoned. It was also recorded in this order that the respondents Nos.44 and 49 have died and an application for impleading their legal heirs should also be filed. The appeal was kept pending for one or the other reason and on 14-52008, it was placed before the Chief Justice, who passed the following order: -- "PRESENT: ' Mr. Ashfaque Hussain Kiani, Advocate, for the appellant.
ORDER: ' In this case the report by the office would show that fresh address of respondent No,21 has not been filed till-to-date and no application with regard to impleadment of legal heirs of respondents Nos.44 and 49, as they have been reported to be died, has been filed up-till now. The learned counsel for the appellant seeks adjournment to look into the controversy in view of the record so that he could help the Court to pass proper order. Request is allowed. To come up for proper order on 20-6- 2008."
3. Due to tour of the Court, the file could not be placed before the Court. On the subsequent fixed two dates, however, when it was placed before the Court on 10-10-2008, an adjournment was sought through the, application filed by the counsel of the appellant. The case was adjourned for 12th December, 2008, once again, due to tour of the Court it was adjourned for the next date of hearing on which the following order was passed by the Court:- "PRESENT: ' Ishfaq Hussain Kiani. Advocate, for the appellant. Kh. Naseem Ahmed Advocate for the respondents.
ORDER: ' The learned counsel for the appellant despite sufficient time failed to file fresh address of respondent No,21 and impleadment of legal heirs of respondents Nos.44 and 49, in view of order of this Court dated 14-5-2008, however, today he requested to allow the adjournment on payment of cost. He is allowed to do the needful in view of above stated order provided he pays Rs,500 as cost, failing which proper order shall be passed. To come up for proper order on 13-3-2009."
Despite the above reproduced orders passed by the Court the appellant failed to do the needful, thus finally through, the impugned C judgment, the appeal has been dismissed for non- compliance of the order of the Court.
4. Mr. Ashfaque Hussain Kiani, the learned counsel for the appellant, while pleading the case of the appellant, submitted that the order is too harsh and passed in hasty manner. Only one opportunity was provided as his client hails from far-flung area of Haveli, therefore, in such short time, he was unable to contact with his client. He reiterated the other grounds incorporated in memo. Of appeal and thus submitted that the order is not sustainable and this appeal merits acceptance.
5. While controverting the arguments of the learned counsel for the appellant, Kh. Muhammad Nasim, the learned counsel for the respondents, forcefully defended the impugned order on the ground that the appeal remained pending for a period of more than four years and on 27-9-2007 the appellants were ordered to deposit the process fee and address, which have not been done despite passage of almost two years time. Thus the argument of the learned counsel for the appellant that sufficient time has not been granted is without any substance. He also argued that despite availing the last and final opportunity he has failed to do the needful. Thus, there was no option for the High Court-. Except to pass the impugned order, "which has been rightly passed. The appellant has failed to make out any legal ground for interference of this Court, thus this appeal is not maintainable.
6. We have duly considered the respective arguments of the learned counsel for the parties and also gone through the record. The hereinabove referred orders of the High Court loudly speak that more than sufficient time was granted to the appellant to do the needful but despite passage of more than two years, he has failed to do the needful. The provisions of Code of Civil Procedure are applicable to the proceeding of appeal before the High Court as is specifically postulated by section 108 of the Code. Under the provisions of Rule 18 of Order XLI of the Code, the appellate Court has been vested with express powers that where on day fixed, or any other day to which the hearing may be adjourned, it is found that the notice to the respondent has not been served in consequence of the failure of the appellant to deposit, within period fixed, the sum so required to defray the cost of serving the notice, the Court may make an order that the appeal be dismissed.
Numerous adjournments were granted for the purpose and even last and final opportunity on cost was also granted but the order has not been complied with. Thus the order passed by tie High Court is in accordance with the codal provisions as well as the, principle of justice.
7. We have also noticed that in such like cases the availing of remedy of appeal through leave to appeal appears to be premature and misuse of process of law. Under Rule 19 of the Order XLI of the Civil Procedure Code, in such like cases the appellant may apply to the same Court for re- admission of the for default and the appellate Court may re-admit the appeal where it is proved that the appellant was prevented by sufficient cause from depositing the sum so required, which culminated into the order of dismissal under Rule 17 of the Order XLI. The appellant has failed to make out any legal ground for interference of this Court. Finding no force this appeal is hereby dismissed. .