"History is replete with cases which were stated to be open and shut but which when came to be argued turned out be totally different."
[(Per Megarry J. in John v. Rees (1974)] MUHAMMAD SHAN GUL, J. Through this judgment the titled civil revision is sought to be decided.
2. Facts in brief are that the respondents in the civil revision i.e. plaintiffs in the civil suit filed a civil suit for possession under Section 8 of the Specific Relief Act, 1877 on the basis of ownership claiming that they were owners in possession of suit property situated at Khewat No.54, Khatooni No.98, Square No.8, measuring 09 kanals 19 marlas, Basti Khairshah behind Darbar Baba Gonga Mouza Taraf Mubarak, Tehsil and District Multan which was purchased by them from one Maqbool Hussain s/o Muhammad Hayat through sale deed No.5959 dated 28.8.2001 and that the defendants in the suit i.e. petitioners before this Court had illegally occupied the said suit property since 01.3.2007 and that the defendants had been asked to vacate the property but they refused and, therefore, a civil suit was filed. The defendants submitted their written statement raising various objections. The following six issues were framed:- "i). Whether the plaintiff has no cause of action and locus standi to file the suit against the answering defendants?OPD ii). Whether the plaintiffs are stopped by their words and conduct to bring the suit against answering defendants?OPD iii). Whether the plaintiffs have come to the court with unclean hands and as such not entitled to any equitable relief?OPD iv). Whether the suit is based on malafide which has been filed just to black and harass the answering defendants and as such, they are entitled to recover special costs U/S 35-A of C.P.C. from the plaintiffs?OPD v). Whether the plaintiffs are entitled to decree for possession in respect of suit property, as prayed for?OPP vi) Relief."
3. After a full length trial the suit filed by the respondents was decreed as follows:- "the suit of the plaintiff is hereby decreed. The plaintiffs are held entitled to get possession of the suit property under section 8 of the Specific Relief Act and Rs.3,000/- per month as mesne profit since the institution of the suit i.e. 11.09.2007 till today i.e. 11.03.2017 because it has been proved the defendants are illegal occupants and the disputed property belongs to the plaintiffs and all the evidence supports the version of the plaintiffs. Hence, in future Rs.5,000/- is hereby fixed as rent of the disputed property from today i.e. 11.03.2017 till then the defendants vacate the possession of the disputed property."
4. Feeling aggrieved, the petitioners i.e. defendants in the suit filed an appeal against the judgment and decree passed by the trial court. This appeal was admitted to hearing yet while deciding the appeal the counsel for the petitioners was not allowed an opportunity of addressing the court or for that matter presenting his oral or written arguments. In a nub, the petitioners before this Court who had filed the appeal in question were condemned unheard inasmuch as the counsel representing them was not heard. Even when an application for adjournment had been filed on behalf of their counsel on account of his illness, the appellate court did not accept the request and went ahead and decided the appeal on merits without allowing the petitioners to submit arguments in their favour. The appeal was, therefore, dismissed and which is why the petitioners have filed the instant civil revision.
5. It is contended by the counsel for the petitioners that the petitioners were not afforded any opportunity of hearing and their appeal was dismissed in a slipshod manner and in great rush by a learned Addl. District Judge and hence the judgment passed in appeal did not only suffer from a material irregularity but was also bad on account of procedural impropriety.
6. On the other hand, counsel for the respondents has supported the judgment passed by the appellate court on merits and has stated that the judgment passed by the appellate court is quite sound and logical and, therefore, needs no interference and that even after hearing the petitioners the fate of the appeal will remain the same. (Hence the opening quote of Megarry, J. in John v.
Rees).
7. Heard. Record perused.
8. Irrespective of the soundness of findings recorded by the learned Addl. District Judge in the impugned judgment and regardless of the merits of the case, it is a stark fact that the appeal filed by the petitioners was decided without hearing them and even without allowing them to submit written arguments in their favour. Despite the absence of the counsel for the petitioners in the appeal and despite the presence of an adjournment on his behalf, the appellate court proceeded to decide the appeal on merits for reasons only known to the appellate court. Disposal of an appeal in the manner adopted and pursued by the appellate court is clearly an affront to, and not contemplated by, the governing law. Order XLI of Code of Civil Procedure, 1908 prescribes the manner and procedure to be followed in deciding appeals. Rule 16 is relevant in the present context: "16. Right to begin. (1) On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal. (2) The Court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal, and in such case the appellant shall be entitled to reply."
9. The term 'hearing' spoken of in Order XLI, Rule 16, CPC at least envisages oral arguments. In the same vein Rule 30 of Order XLI of CPC also envisages a hearing before pronouncement of judgment. When Rule 16 is read in the light of Articles 4 and 10-A of the Constitution which provide a citizen with a right to be dealt with according to due process of law and which confer the right of a fair trial and due process on a person in the matter of determination of his civil rights and obligations, it becomes clear that great emphasis not to forget importance has been laid on the aspect of adequate opportunity of hearing to a party in the matter of determination of his/her civil rights and obligations. The disposal of the appeal under discussion was unarguably undertaken without hearing and a few days adjournment of the appeal would not have allowed heavens to fall. In his enthusiasm and zeal to dispose of the matter expeditiously the appellate court lost sight of established principles with respect to disposal of appeals and which zeal ironically has delayed the disposal of the matter rather than expedite it. Justice hurried is justice buried or that justice rushed is justice crushed is not a meaningless hackneyed clich but is rather quite meaningful and in fact now supported by constitutional underpinnings. The appellate court by doing as it has done has not only violated the provisions of CPC noted above but has also caused an affront to Articles 4 and 10-A of the Constitution and has rendered his judgment to be set at naught only for this simple reason!
10. In {{"Sazia Sultana v. Razia Begum" (PLD 2003 Lahore 27)}}, it has been held as follows:- "But this rule nowhere empowers the Court to render a decision on merits in the absence of the appellant. A decree on merits is envisaged by Order 41, rule 30 and hearing of both the sides is the condition precedent for such a decree. "The same had been the position in the past and also till now. Reference may be made to Manager, Jammu and Kashmir State Property in {{Pakistan v.
Khuda Yar and another (PLD 1975 SC 678)}}, {{S.M. Abdullah & Sons v. Pakistan Mercantile Corporation Ltd. and another (PLD 1976 Kar. 268)}}, {{Muhammad Tufail and 5 others v. Din Muhammad through his Legal Representatives (PLD 1992 Lahore 152)}}., {{Prince Sheikh Abdul Qadir v. Nawab Sheikh Nasiruddin and 7 others (PLD 1993 Karachi 216)}} and {{Malik Muhammad Ahsan and others v. Mst. Hameeda Begum (1999 MLD 1941)}}. Reference made to {{Barkat Ullah v. The State (1997 SCMR 274)}} by the learned counsel for the respondents is inapt inasmuch as the precedent case related to a criminal appeal and it was section 423 of Criminal Procedure Code; that was considered by the Court, which in view of its scope and content had totally different ramifications.
7. Now adverting to the facts of the instant case if the learned counsel for the petitioners/appellants was not in a position to advance arguments on 29-9-1999 due to his engagements before this Court, the case could be adjourned to the next day even on payment of costs in order to compensate the other side for any inconvenience. A day's adjournment would not have made much difference but in a zeal to dispose of the appeal the same day, the relevant provisions of law were overlooked which has certainly resulted in not only inconvenience to the parties but also has delayed the disposal of the matter. There is no cavil nor there can be two opinions that "justice delayed is justice dented", but, at the same time it is also to be kept in view that sometimes "justice rushed is justice crushed". The Court which is charged with onerous duty and responsibility of administering justice is expected to maintain a balance so that neither the matter is delayed unnecessarily nor its disposal is, in such a hasty manner as may be violative of the law and fairness. In view of the preponderance of the view taken in number of precedents the appeal could not have been dismissed by the learned Additional District Judge, Lahore on merits, which exercise undertaken by him was futile and violative of the law on the subject."
11. In {{"Manzoor Hussain v. Mst. Zamurrad Begum and 8 others" (2004 MLD 1118)}}, it has been held as follows: "Suffice it to say that feeling aggrieved of judgment and decree, dated 13-7-2000 passed by the learned trial Court dismissing the suit filed by the petitioner for possession of the suit-land by pre- emption, the petitioner filed a first appeal, which was admitted to hearing and notice was issued.
The appeal came up for hearing on 15-1-2001 when only learned counsel for the respondents was present and none present for the appellant. Learned Addl. District Judge, Rawalpindi, adjourned the case to 16-1-2001 for arguments as, last and final opportunity stating that if counsel for the parties do not address arguments he will decide the appeal after perusing the record. On 16-1- 2001 none was present when learned Additional District Judge proceeded to decide the appeal on its merit and to dismiss the same vide judgment and decree of the said date.
Now impugned judgment and decree is without jurisdiction. Learned Addl. District Judge could have dismissed the appeal when none of the parties was present, for non-prosecution but he had no lawful authority to decide the first appeal on merits without hearing the parties. Reference may be made to the case of {{Sazia Sultana v. Razia Begum (PLD 2003 Lahore 27)}}. The civil revision is accordingly allowed and the impugned judgment and decree, dated 16- 1-2001 of the learned Addl. District Judge, Rawalpindi, is set aside. The result would be that the first appeal filed by the petitioner shall be deemed to be pending before the learned District Judge, Rawalpindi, the parties and their learned counsel shall appear before the learned' District Judge Rawalpindi on 17-5-2004. The records will be summoned and learned District Judge shall either himself or such a learned Addl. District Judge to whom the case will be entrusted for same day shall hear the parties, examine "the records and decide the appeal."
12. In {{"Prince Sheikh Abdul Qadir v. Nawab Sheikh Nasiruddin and 7 others" (PLD 1993 Karachi 216)}} a Division Bench of the Sindh High Court when faced with an identical proposition has ruled at Page-227 as follows:- "In view of the preponderance of authorities on the question, with which we are in respectful agreement, we are of the view that the appellate Court would have no jurisdiction to dismiss the appeal on merits in the absence of the appellant or his counsel. Such a course was bound to cause hardship to the appellant because he would have no remedy to have the order set aside by the Court that made it in view of the provisions of Rule 19 of the said Order."
13. In {{"Messrs S.M. Abdullah & Sons v. Messrs Pakistan Mercantile Corporation Ltd., Karachi and another" (PLD 1976 Karachi 268)}} where, again, the same proposition of law was involved it was held at Page-274 as follows:- "There is yet another aspect of the matter. That is that, the language of Order XLI, rule 17, C. P. C., which is a specific provision dealing with the procedure in case of non-appearance of the appellant, empowers the Court to dismiss the appeal. On the other hand, if the contrary view, as mentioned above is accepted and it is held that the Court would be competent to consider the merits of the appeal, it would follow that in such a situation the Court would further be competent to decide the appeal, despite the absence of the appellant in his favour. The consequence could be that the appellate Court may accept the appeal. But the plain language of the rule does not make a provision for such a judgment; the only power being to dismiss the appeal."
14. That, likewise, similar observations have been recorded in the case reported as {{"Mst. Kishwar Bibi and others v. Mst. Fazal Bibi and 2 others" (PLD 2004 Lahore 717)}}. Also in {{"Muhammad Tufail and 5 others v. Din Muhammad through his Legal Representatives" (PLD 1992 Lahore 152)}} and {{"Malik Muhammad Ahsan and others v. Mst. Hameeda Begum" (1999 MLD 1941)}} identical ratio has been recorded.
15. In {{Kanda v. Government of Malaya (1962) AC 322}}, Lord Denning has held that, "the rule against bias is one thing. The right to be heard is another. These two rules are the essential characteristics of what is often called natural justice. They are the twin pillars supporting it." {{In O'
Reilly v. Mackman (1983) 2 AC 237}}, Lord Diplock has held that, "the two fundamental rights conferred on a person by rules of natural justice or fairness are to afford him a reasonable opportunity of learning what is alleged against him and of putting forward his own case in answer to it."
16. Hence, it is well established that essential requirements of natural justice at least provide that before someone is condemned he is to be given an opportunity of defending himself and this is something so basic to our system of administration of justice that the importance of upholding it far transcends the significance or peculiarity of any particular case. As long as a decision takes away some existing right or position a right to be heard has to be afforded.
17. It may also be mentioned here that the appellate court also had a duty to act fairly and fairness indeed demanded for the petitioner's counsel to be heard in the matter especially since the matter was decided against him. In the present matter, what has been witnessed, in the words of {{Lord Mustill in Neill v. North Antrim Magistrates (1992) 1 WLR 1220}}, is "what in the vocabulary of judicial review would be called a breach of natural justice or if one prefers the transatlantic terminology, a want of due process."
18. In the present matter the appellate court by failing to take into account the provisions of Order XLI Rule 16 of the Code of Civil Procedure, 1908 has failed to follow a statutorily mandated procedure and has, therefore, rendered his decision procedurally improper since he has refused to act with procedural fairness towards the affectees of the decision. Fairness requires that a person who may be adversely affected by a decision will have an opportunity to make representation on his own behalf before the decision is taken.
19. In the matter before this Court the appellate court by refusing to allow the counsel for the petitioners (appellants before the appellate court) to be heard has caused miscarriage of justice by passing a decision which not only suffers on account of being procedurally improper and infirm but which is also bad on account of being materially irregular. Such a lapse on the part of the appellate court goes to the root of its jurisdiction and renders the judgment passed by it seriously open to interference in revisional jurisdiction.
20. In view of what has been noted above, this civil revision is allowed and the judgment passed by the appellate court is set aside and declared to be of no legal effect. The appeal filed by the petitioners shall be deemed to be pending before the appellate court and shall be taken up and decided within a period of 45-days from today after allowing both, the appellants as also the respondents in the appeal, a chance of addressing their arguments and an opportunity of being heard. It may also be mentioned here that the above discourse takes away nothing from the merits of the case which shall be appreciated afresh independently by the appellate court.
21. Allowed in the above terms.