' GULZAR AHMED, J.---The respondent No,1 was issued eviction notice under section 32/34 of the, Colonization of Government Lands Act, 1912, by the Deputy Commissioner and Commissioner, Faisalabad, which order was challenged by respondent No,1 by filing suit in the Court of civil Judge, Faisalabad claiming declaration of ownership on the basis of adverse possession etc. Of property measuring 22 x 38 square feet in Khasra No,4201 Chak No,212-RB, Montgomery Bazar, Faisalabad.
The suit was contested and ultimately it was dismissed. Respondent No,1 filed appeal which was allowed by the Additional District Judge, Faisalabad against which the appellant filed Regular Second Appeal in the Lahore High Court, Lahore. This appeal was admitted to regular hearing vide order dated 19.09.2005. Along with the appeal the appellant had also filed C.M.A. No,1/2005 on which notice was ordered, and operation of the impugned judgment and decree was suspended. It appears that respondent No,1 had made appearance through his counsel Mr. Aamir Raza A. Khan.
The said counsel. On 10.04.2009 applied for grant of general adjournment from 13.04.2009 to 17.07.2009. The request of respondent's counsel for grant of general adjournment was allowed: Despite the order of general adjournment to the respondent's counsel, the matter was listed for hearing on 11.05.2009 when nobody appeared from either side and the Court noted that the respondent's counsel being on general adjournment, adjourned the matter. The matter was again fixed for hearing on 10.06.2009 on which date the respondent's counsel sent a written request for adjournment and the case was adjourned. Again the matter was fixed in Court on 09.07.2009 when none appeared from either side and the Court dismissed the matter for non-prosecution. The appellant then filed an application for restoration along with an application for condonation of delay. Both these applications of the appellant were dismissed by the learned Judge in Chamber vide the impugned order dated 13.10.2010 on the ground that the restoration application was barred by time and that application for condonation of delay did not contain sufficient cause. Leave to appeal was granted by this Court vide order dated 18.12.2012 in the following terms: ' "In order to consider, what is the distinction of a date of hearing in the trial and in an appeal, and whether an appeal, which has appeared in the cause list of the learned High Court for the purpose of its decision, is not a hearing until and unless there is a specific order passed by the Court itself to that effect and, thus, such appeal cannot be dismissed for non-prosecution. Leave is granted, inter alia, to consider the above".
2. Today, when the matter was taken up for hearing we found on the record an application for adjournment filed by Mr. Noor Muhammad Khan Chandia, ASC for respondent No,1 on the ground that he is not well. He was, however, present and stated that he has recovered from his illness and wishes to withdraw the application for adjournment. Application for adjournment is, therefore, dismissed and withdrawn.
3. We have heard the learned counsel for the parties and have also gone through the record with their assistance.
4. Ch. Ali Muhammad, learned ASC for the appellant has firstly contended that on 09.07.2009 the appeal itself was not fixed for hearing and could not be considered to have been fixed for hearing more so for the reason that the respondent's counsel was on general adjournment on that date and the Court ought to have adjourned the matter, therefore, the order of dismissal of appeal is void ab initio. He has further contended that though application for condonation of delay was filed by the appellant but there was no delay in filing of the application for restoration in that Article 181 of the Limitation Act, which prescribed 3 years period for filing of application for restoration applied to the case in hand. He has also contended that neither party appeared on 09.07.2009 on which date the matter was dismissed for non-prosecution, there was no necessity for the court to have given notice to the respondent of the application for restoration. In_ support of his submissions he has placed reliance on the case of. Manager, Jammu and Kashmir, State Property in Pakistan v.
Khuda Yar and another [PLD 1975 SC 678); Muhammad Qasim and others v. Moujuddin and others [1995 SCM R 218k Muhammad Tufail and 5 others v. Din Muhammad through his LRs [PLD 1992 Lahore 1521 and Khushi Muhammad v. Khadeja Hakeem and another [PLD 1976 Lahore 99]. On the other hand, Mr. Noor Muhammad Khan Chandia, learned ASC for respondent No,1 has vehemently opposed the appeal and has contended that restoration application was time barred and each day's delay was not explained in the application for condonation of delay. In support of his submission he has placed reliance on the case of Sheikh Muhammad Saleem v. Faiz Ahmad [PLD 2003 Supreme Court 6281. The learned ASC has also contended that on 09.07.2009 the appeal was fixed for hearing and Article 181 of the Limitation Act has no application to the case in hand.
5. We have noted that the appeal was dismissed for non-prosecution on 09.07.2009 and the application for restoration of the appeal with application for condonation of delay was filed by the appellant on or about 11.05.2010. The submission of the learned ASC for the appellant that on 09.07.2009 the appeal was not fixed for hearing or could not have been fixed for hearing needs to be comprehended first and it will be of advantage to reproduce here the order sheets of the appeal from 19.09.2005 to 12.05.2010; copies of which have been filed by the learned ASC along with the memo of appeal. The said order sheet is reproduced as follows:- "19.09.2005: Ch. Ali Muhammad Advocate ' It is contended that judgments of the courts below are at variance. Judgment of the first appellate Court suffers from mis-reading and non-reading of evidence.
Admit. Notice.
C.M .No,1-2005 ' Notice. Subject to notice, operation of the impugned judgment) and decree shall remain suspended.
(Sh. Azmat Saeed)
Judge 11.05.2009: Nemo.
C.M. No,1-2005 ' Mr. Aamir Raza Khan, Advocate is on general adjournment, Adjourned.
(Maulvi Anwarul Haq)
Judge 10.06.2009: Mr. Ali Muhammad Ch. Advocate for the appellant. Mr. Sohail Patwari Halqa 215, Faisalabad.
' Mr. Aamir Raza Khan, Advocate has sent a written request for adjournment. Adjourned.
(Maulvi Anwarul Haq)
Judge 09.07.2009: Nemo.
' Dismissed for non-prosecution (Maulvi Anwarul Haq)
Judge C.M.No,502-C-2010 12.05.2010: Ch. Ali Muhammad, Advocate ' Seeks an adjournment. Relist on 17.05.2010.
(Sh. Azmat Saeed)
Judge"
Additionally, the fact of order of granting general adjournment to the respondent's counsel may also be taken note of and such order dated 10.04.2009 is as follows: "10.04.2009: Mr. Aamer Raza A. Khan, Advocate has requested for the grant of general adjournment from 13.04.2009 to 17.07.2009, as he will be away from Lahore.
2. Submitted for favour of necessary order.
Deputy Registrar (Judicial)
10.04.2009 Hon'ble Senior Puisne Judge ' General adjournment requested for 13.04.2009 to 17.07.2009 is allowed, except in cases fixed by Court, old eases and cases in which list has already been issued.
JUDGE"
6. In the context of the above two facts of the Court order sheet and order of general adjournment granted to the respondent's counsel, the provision of Order XLI, Rule 17(1), C.P.C. May also be referred here which is as follows: "17. Dismissal of appeal for appellant's default. (1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing the Court may make an order that the appeal be dismissed".
7. In the first place the order of the Court does not reflect clearly as to what matter was fixed for hearing before the Court on 09.07.2009 which was dismissed for non-prosecution. We also note that in the order sheet of 11.05.2009 the matter fixed before the Court for hearing was C.M. No,1-05.
On this date, it was adjourned on the ground that respondent's counsel was on general adjournment. After this the matter came up for hearing on 10.06.2009 when it was again adjourned on the written request of respondent's counsel. The matter again came up on 09.07.2009 when neither party being present it was dismissed for non-prosecution. We note that in the earlier two orders dated 11.05.2009 and 10.06.2009 there was simple order of adjournment without noting that the appeal has been adjourned for hearing. Order XLI, Rule 17(1), C.P.C. Specifically requires that it is on the date when the appeal is called for hearing and appellant fails to appear, the Court may make an D order of dismissing the appeal. To us, from the order of the Court in the appeal before the High Court there is nothing to show that on 09.07.2009 the appeal itself was fixed for hearing.
Although respondent's counsel has contended that the appeal was fixed for hearing but we note that no concise statement has been filed by him nor has the respondent placed before the Court any material to show that the appeal was fixed for hearing before the Court on 09.07.2009. Rather from the order sheet which has been reproduced above, it seems that C.M. No,1-05 was the only matter fixed on 11.05.2009 which was adjourned and the position apparently remained the same until 09.07.2009. Learned ASC for the respondent has contended that this C.M. No,1-05 was disposed of by the Court vide order dated 22.01.2008. Even if the Court may have disposed of the said C.M., it appears that the same was listed by the Court for hearing and the appellant could not be made liable for this mistake of the Court. Even if the order dated 09.07.2009 is considered to be that of E dismissal of the appeal for non-prosecution, the same will not be an order under Order XLI, Rule 17(1), C.P.C. For that on the said date, as noted above, the record does not show that the appeal itself was fixed for hearing. In the case of Manager, Jammu and Kashmir, State Property in Pakistan (supra) this Court has dealt with the very applicability of the provision of Order XLI, Rule 17(1), C.P.C. In the matter of dismissal of an appeal and has made the following observations: ' "As would appear from the foregoing discussion, all these authorities dealt with cases of dismissal of suits. The expression "called on for hearing" as used in Order XLI, rule 17 obviously presumes the completion of all earlier steps envisaged by rules 11 to 16 of Order XLI. Unlike the suit there would be no question of filing the written statement or of recording of evidence and therefore, an effective hearing would be one on which arguments were to be heard. This obviously presupposes the service of the parties and therefore, the Court was under an obligation to ascertain in the first instance that the respondent had been served. It is evident that the appeal had been received by the Additional District Judge on transfer from the District Judge on 10.12.1970 and was straightaway fixed for arguments for 11.1.1971 with notice to the parties. Rule 12 of Order XLI clearly envisages the essentiality of the service of the respondent. Of course, the appeal could be dismissed for the non- appearance of the appellant on two earlier stages: Firstly, it can be dismissed in limine if the Court is not satisfied that a prima facie case is made out and in that event neither the record may be sent for, nor a notice may be issued to the respondent. That is the stage envisaged by rule 11. If, therefore, on a day fixed under this rule the appellant does not appear the Court may make an order that the appeal be dismissed. Dismissal at this stage is also discretionary and furthermore the order of dismissal is appealable. It cannot be disputed that in the case before us the order of dismissal was not made under this provision. Straightaway on receipt of the file the Additional District Judge sent for the record, issued notices to the parties and fixed the case for arguments.
Once the appeal crosses the hurdle of preliminary hearing under rule 11, then under rules 14 and 15 of Order XLI the appeal cannot be heard and decided without the service of the respondent or his counsel. The mandatory provision contained in rules 14 and 15 makes the position absolutely clear that the notice issued to the respondent shall be delivered and in the event of his non-appearance, the appeal will be heard ex parte. Rule 16 envisages the presence of the parties and if having heard the appellant in support of his appeal the Court finds that no base is made out it may even dismiss the appeal without calling upon the respondent to reply. Rule 16, therefore, clearly proceeds on the presumption of the presence of the parties. If, however, the appellant does not appear at this stage the Court may make an order of dismissal in default. Here too a discretionary power has been conferred on the Court and it is under no obligation to dismiss the appeal. On the other hand the view taken by the High Court in the impugned order proceeds on the assumption as if no discretion or option vested in the Additional District Judge not to dismiss the appeal which he was under an obligation to dismiss. The conclusions we have reached, therefore, are: Firstly that it was the duty of the Additional District Judge to ascertain that the respondent had been duly served and this he did not discharge and, therefore, the case could not be called for hearing on that date. Secondly, that he had acted rather mechanically without being aware of his discretionary power not to dismiss the appeal and therefore, the order of dismissal having been made in ignorance of jurisdiction was void and a nullity."
8. Thus, we hold that the order of 09.07.2009 was not an order under Order XLI, Rule 17(1), C.P.C., therefore, this will also result in the non-application of Article 168 of the Limitation Act as this Article applies to the dismissal of an appeal for default under the provision of Order XLI, Rule 17(1), C.P.C.
Consequently, Article 181 of the Limitation Act will have application providing for 3 years' time for filing of an application for restoration and thus the application for restoration of appeal filed by the appellant would be in time. Having found the application for restoration of the appellant being not time barred, we find the impugned order of the High Court dismissing the same as time barred to be nullity in the eye of law and set aside the same and direct the High Court to hear and decide the RSA in accordance with law and as the matter is quite old we expect that it will be done expeditiously. The appeal is, therefore, allowed with no order as to costs.