C.Ms. No.174-C & 175-C of 2021 Through former application (C.M. No.174-C of 2021) the applicants are seeking recall of order dated 13th June, 2019, whereby their appeal was dismiss ed for non-prosecution whereas latter application i.e. C.M. No.175-C of 2021 is seeking condonation of delay .
2. Notice was issued on these applications in response to which respondents No.1 & 3 have submitted their reply whereas respondent No.2 was proceeded ex-parte vide order dated 02nd November , 2021.
3. We have heard learned counsel for the applicants as well as learned Law Officer at considerable length and also perused the record.
4. Part VII of the Code of Civil Procedure (V of 1908) (hereinafter to be referred as "CPC') deals with the appeals from original decrees and Section 96 provides the remedy of appeal against original decree. Order XLI of the Code ibid lays down the procedure in appeals. In terms of Rule 11 of Order XLI of "CPC' appellate court is vested with the power to dismiss the appeal without sending notice to the lower court. By virtue of sub-rule (2) of the Rule ibid if on the day fixed or any other day to which the hearing is adjourned if the appellant does not appear when the appeal is called on for hearing, the court may make an order of dismissal of appeal. Rule 12 of Order XLI of "CPC" deals with the day for hearing appeal which reads as under:- "12. Day for hearing appeal.-- (1) Unless the Appellate Court dismisses the appeal under rule 11, it shall fix a day for hearing the appeal.
(2) Such day shall be fixed with referen ce to the current business of the Court , the place of residence of the respondent, and the time necessary for the service of the notice of appeal, so as to allow the respondent sufficient time to appear and answer the appeal on such day ."
It is thus manifestly clear from the above that if the appeal is not dismissed in terms of Rule 11 of Order XLI of "CPC" the court shall fix a day for hearing appeal. Rule 16 prescribes the manner of hearing of appeal. Rule 17(1) of Order XLI of "CPC" provides the cons equences of default of the appellant to appear on the day fixed or any other day to which the hearing is adjourned.
5. Record reveals that the appeal was admitted for regular hearing vide order dated 04th October , 2016, however , vide order dated 23rd April, 2019 office was directed to requisition the record and prepare the paper book before the next date of hearing and matter was directed to be listed on 13th June, 2019. On the said date, the appeal was dismissed for non-prosecution.
6. There can be no cavil that the expression "hearing" used in Order XLI Rule 17(1) of "CPC" corresponds to the adherence of all the steps outlined by Rules 11 to 16 of Order XLI of "CPC". Chapter 2 Volume V of the Rules and Orders of the Lahore High Court, Lahore deals with the preparation of paper book and record, which is reproduced below for ready reference and convenience:- CHAPTER 2 Preparation of Paper Book and Records PART A THE PREP ARA TION OF PRINTED RECORDS IN FIRST APPEALS.
1. In first appeals from orders no printing will be required unless specially directed by the Judge admitting the appeal, who will in that case order at his discretion the printing of either
(i) an ordinary paper book, or
(ii) a printed record under these rules.
2. In first appeals from decrees admitted to a hearing, a printed record shall, unles s special orders are given to the contrary , be prepared in accordance with the instructions hereinafter contained.
3. In the absence of a special order the printed record under rule 2 shall consist of:
(i) (a) The plaint and pleas.
(b) Such documents either referred to in the plaint as forming the basis of the suit or considered by the trial court in its judgment, or duly proved by either of the parties in the trial Court, as may be specified by either party in response to a printed notice within the period of 30 days prescribed in rule 5 (i).
(ii) The autograph record of the trial court.
(iii) The report of the local Commissioner , if any, appointed under Order XXVI of the Civil Procedure Code. With the report should be printed any statements of the parties recorded before the Commissioner and tabular statements prepared by him, if they form an integral portion of his report.
(iv) Evidence taken on commission under Order XXVI of the Civil Procedure Code.
(v) The grounds of appeal to the High Court, in English.
(vi) The order of the Judge or Bench admitting the appeal.
4. Any part of the record not printed under rule 3 may be referred to at the hearing with the permission of the Court, but no party shall have a right to refer , during the hearing, to any documents not printed: Provided that extracts from Revenue Records need not be printed in extenso. The parties may refer to the original record for such extracts, maps and plans.
5. (i) The Deputy Registrar shall, as soon as the record in a First Appeal has been received, cause notice to be given to the appellant and respondent, or their counsel if any, to specify within 30 days of the date of notice the documents mentioned in rule 3 (i)(b) above, which should be included in the printed record of the appeal. In default of their doing so, the printed record will consist of the documents specified in rule 3 (i) (a) and (ii) to (vi) only .
(ii) The cost of including the documents specified in rule 3
(i) (a) and (ii) to (vi) shall be borne by the appellant and shall be paid as provided for in rules 8 and 9 below .
(ii) The cost of including the documents mentioned in rule 3 (i) (b) shall be borne by the party at whose instance they are so included and must be paid within 30 days from the date of demand; otherwise they shall be excluded.
6. All documents included in the printed or photocopied record shall be printed or photocopied according to their serial order , first those produced by the plaintif f and then those produced by the defendant. On each document shall be endorsed the order by , and date on, which it was admitted by the trial court: Provided that when counsel for both the parties agree that the documents should be arranged for convenience in a different order , the documents shall be printed in that order . In that case, a footnote shall be added on the first page of the volume of documents that the documents have been printed in the order suggested by counsel for the parties.
7. Vernacular documents printed or photocopied by desire of parties under rule 5 shall not ordinarily be translated into English unless especially desired in writing by the party at whose instance they are included in the printed or photocopied record.
Note: Documents in Hindi, Gurmukhi and other characters shall, if their translation into simple idiomatic Urdu is not already on the record, be sent to the trial Court for this purpose. The parties shall be required to appear before the trial Court to assist in the translation of such documents. Failure on their part to do so will result in the omission of such documents from the printed or photocopied record. The translation shall be accompanied by an affidavit as to its correctness.
8. In every appeal in which under these rules a record has to be printed or photocopied, the appellant shall, with his appeal, attach a receipt for a sum of five hundred rupees which should be deposited with the Treasurer of the High Court to cover the cost of printing or photocopying the record. No first appeal from a decree shall be received unless such receipt accompanies it.
Exception.- This rule does not apply to an appeal filed in forma pauperis , in which case the appellant will be required to pay the approximate cost of printing or copying of such portion of the record as the Judge admitting the appeal, may , under rule 2 of this chapter , order .*
9. (a) If the deposit required under rule 8 proves insuf ficient to cover the cost of that part of the printed or photocopied record which is to be borne by the appellant, the Deputy Registrar may, by a notice in writing, require that such further deposit as seems to him necessary shall be made within one month.
(b) If such further deposit be not made within one month from the date of receipt of the notice, the appeal shall, on the expiry of that period, be sent, without notice to the appellant, to a Judge for an order of dismissal: Provided that, if the appellant makes an application within fifteen days after dismissal for the suspension of this rule, he may be granted one period of fifteen days in which to pay the deposit. Should he again make default, the appeal shall forthwith be sent, without notice to the appellant, to a Judge for an order of dismissal or other disposal.
(c) When after deposit an ad interim order has been passed in the appeal it shall be discharged unless the further deposit, if any , is made within the period specified, according to clauses (a) and (b) of this rule.
10. The period fixed by rule 9 for the payment of the deposit may, on cause being shown in an application duly stamped, be enlarged by an order of the Court so as to permit the amount of such deposit to be paid by installment.
11. Such number of copies of the record shall be printed or photocopied as the Court may, by general rule in this behalf or by special order in any particular case, direct.
Note: The number of copies ordinarily to be printed has been fixed at ten. Enough copies should be printed or photocopied to enable juniors watching the case to be provided with them.
12. The appellant and respondent may each obtain two copies of the printed or photocopied record free of charge and one additional copy free of charge for each Advocate or Pleader employed in excess of two. Additional copies, if available, may be purchased at two rupees per page of printed or photocopied matter .*
13. Parties and counsel shall be entitled to receive copies of the printed or photocopied record on application to the Registrar or Deputy Registrar at least one month before the date fixed for hearing.
14. (a) At the foot of every printed record shall be noted the amount of the printing and incidental charges and the party from whom levied, and such amount shall be included in the costs of the appeal unless the Court shall in any case otherwise direct.
(b) Should the amount so charged be less than the sum or sums deposited under rules 5, 8 and 9, the Registrar or the Deputy Registrar shall refund the unexpended balance to the party by whom the deposit was made. Should it be more he will take action under rule 9 or 10.
15. The Registrar or the Deputy Registrar may and, if so required by either party by petition duly stamped, shall refer to the Court any matter not herein expressly required to be referred.
16. For the purposes of these rules, when an order of the Court is required, the order of one Judge shall be sufficient and such order shall, subject to reconsideration by the Bench hearing the appeal, be conclusive.
17. (a) When an order has been made by a Division or Full Bench, under Order XLI rule 25 or rule 27 of the Code of Civil Procedure, in an appeal to which these rules have been applied, and additi onal evidence has been taken in pursuance of such order , a Judge may, at any time after completion of the record of the enquiry , make an order that a supplementary printed or photocopied record be prepared of:
(i) the order made under Order XLI rule 25 or rule 27, Civil Procedure Code, and
(ii) the proceedings taken thereunder or any part thereof.
(b) The order shall direct by which party or parties the expense of preparing the supplementary record or any part thereof shall be borne in the first instance.
(c) When a Judge' s order for the prepa ration of a supplementary record has been made, the Registrar or the Deputy Registrar shall deal with the matter under the foregoing rules so far as applicable."
(Underlining supplied for emphasis)
After having an overview of above referred provision of law it can safely be inferre d that the proceedings were not adjourned for hearing and as such Order XLI Rule 17(1) of "CPC" cannot be pressed into service. Guidance in this respect can be sought from MANAGER, JAMMU & KASHMIR, STATE PROPER TY IN PAKIST AN versus KHUDA YAR AND ANOTHER (PLD 1975 Supreme Court 678). The relevant extract from the same is reproduced below:- "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 bad 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 cours e, 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 partie s 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 envasages the presence of the parties and if having heard the appellant in support of his appeal the Court finds that no case 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 discretio nary 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 notes be called for hearing on that date, Secondly , that be 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 .
In Musaliarakath Muhammad v. Nanaviak rama The Zamorin Raja Avergal and others, the learned Judges traced the history of Order XLI, rule 17 which corresponded to section 556 of old Code, the only difference between the two provisions, however , being that the expression "shall be dismissed" as existing in the earlier provision was substituted by the expression "the Court may make an order that the appeal be dismissed", the obligation to dismiss yielding place to a discretion. While interpreting the change in law, the learned Judge held that under the old Code, the Court had no power to adjourn the case and give a further chance to the absenting appellant which power was available to it under the new provision. In this case the learned judge proceeded to deal with the case on merits in the absence of the appellant and the judgment was treated as one without jurisdiction. We might also refer in this context to the argument of Haji Ghias Muhammad based on the Chitley's Commentary under Order XLI, rule 17, that in the event of absence of the appellant dismissal of appeal on merits would be illegal. This does not help the respondent. The view taken by most of the High Courts is that "the fact that the Court is bound to dismiss the appeal for default does not enable it to dismiss the appeal on merits but only to adjourn to another date."
7. Adverting to the question of limitation it is observed that though Article 168 of the Limitation Act, 1908 provides thirty days for an application seeking re-admission of the appeal dismissed for non-prosecution under Order XLI Rule 17(1) of "CPC" from the date of dismissal but in the light of discussion made hereinabove order dated 13th June, 2019 cannot be termed as an order passed under Order XLI Rule 17(1) of "CPC". In such an eventuality , residuary Article i.e. 181 of the Limitation Act, 1908 would come into play, which provides three years period of limitation. The application seeking restoration was thus well within time. Reliance in this respect can be placed on TEHSIL MUNICIP AL ADMINISTRA TOR, FAISALABAD versus MUHAMMAD SALEEM and others (2016 SCMR 2009 ).
8. It is trite law that ordinarily law favours the adjudication on merits instead of knocking out the litigants on the basis of technicalities. It is apparent from the application itself that the applicants have been able to canvass sufficient cause for their non-appearance, which is quite enough to persuade us. Even otherwise order resulting into dismissal of appeal is not tenable in the circumstances.
9. For the foregoing reasons, both these applications are allowed , as a sequel thereof, main appeal is restored to its original number .