' This civil revision has arisen out of a suit for pre-emption brought by the petitioner, Nazir Ahmed, against the respondents, Muhammad Yousuf and others. The suit was dismissed by the Civil Judge, Shorkot, District Jhang. The petitioner, therefore, filed an appeal. His appeal came up before the District Judge, Jhang, on 20th. November, 1983 for hearing. On that date the petitioner and learned counsel for the respondents appeared therefore the learned District Judge. The petitioner requested for adjournment on the ground that his counsel was not present but the same was refused by the learned District Judge for the following reasons :- "The learned counsel for the appellant did not turn up in spite of the fact that the Court waited for him for sufficient time. The record of the case rather shows that the learned counsel for the appellant never attended this Court since the date of the admission of this appeal for regular hearing on 24-1-1982 and it is the appellant himself who has always been appearing in Court. Here was, therefore, no fun in adjourning this appeal to any other date."
The learned District Judge then heard the petitioner and learned counsel for the respondents and dismissed the appeal on merits. Feeling aggrieved by the judgment and decree of the Appellate Court, the petitioner has come up in revision to this Court.
2. It was contended by learned counsel for the petitioner that the learned District Judge could not decide the appeal on merits, under Order XLI, rule 30 of the Code of Civil Procedure, because had not heard the petitioner or his learned counsel. According to him, proper course for the learned District Judge was to dismiss the appeal, under Order XLI, rule 17 of the said Code, for want of prosecution. It was, therefore, prayed by him that the judgment and decree under challenge may be set aside and the appeal remanded to the learned District Judge for re-hearing and fresh decision. Learned counsel for the petitioner placed reliance on Basudev v. Bideshi and another (1).
Taher Sheikh Chowkidar and others v. Otaruddi Howladar and others (2), Nasir Khan v. Ltwari and others (3) and Masallarakath Muhammad v. Manaviakrama the Zemorin Rajah A vergal and others
(4) to support his arguments.
3. Rules 17 and 30 of Order XLI of the Code of Civil Procedure, to which reference was made by learned counsel for the petitioner, read as follows :- "(17) Dismissal of appeal for appellant's default.-(1) Where on the day {{FOOT NOTE}}
(1) AIR 1929 Hang. 11(2) (2) AIR 1929 Cal. 475
(3) AIR 1924 All 144 (4) AIR 1923 Mad. 13 {{FOOT NOTE}} ' fixed, or 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.
' Hearing appeal ex parte-(2) Where the appellant appears and the respondent does not appear, the appeal shall be beard ex pane.
(30) Judgment when and where pronouneed.-The Appellate Court, after hearing the parties or their pleaders and referring to any part of the proceedings, whether on appeal or in the Court from whose decree the appeal is preferred, to which reference may be considered necessary, shall pronounce judgment in open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders."
4. As for the cases cited by learned counsel for the petitioner, in those cases the appeals/cross- objections were decided on merits in the absence of appellants/objector. In the instant case, however, since the petitioner (appellant) had entered appearance before the learned District Judge and it was not stated by the petitioner that he did not want to prosecute his appeal, the, appeal could not be dismissed in default, under Order XLI, rule 17 of the Code of Civil Procedure.
Instead, it could be decided on merits after hearing the petitioner and learned counsel for the respondents who, as stated earlier, were in attendance before the learned District Judge. The case relied upon by learned counsel for the petitioner, therefore, being distinguishable on facts, are of no help to him.
5. It was also urged by learned counsel for the petitioner that although the petitioner was present before the learned appellate Court yet he was not actually heard before the appeal was dismissed.
Thus, according to him, the appeal was decided in disregard of the provisions of rule 30 of Order XLI of the Code of Civil Procedure. The contention raised by learned counsel for the petioner stands controverted by the impugned judgment itself in which it has been clearly mentioned that the petitioner (appellant) was heard in person before his appeal was dismissed. Relevant portion of the judgment read as follows :- "I have heard the learned counsel for the respondents and perused the record of the case and heard the appellants in person underlining is by me)."
There is also no affidavit by the petitioner that he was not given a hearing. The fact of the matter is that even a plea in this behalf has not been advanced in the ground 'of revisions. I am, therefore, convinced that he was heard by the learned District Judge. For the purpose of rule 30 of Order XLI, bearing B , of the parties is as good as that of their pleaders. Since the appellant was heard by the learned District Judge, the non-hearing of his counsel duo to his (counsel's( absence is of no consequence. Similar view was taken in Sultan v. Haji Niamat (1).
6. For the reasons given above, I am unable to agree with learned counsel for the petitioner that the learned District Judge had not followed the correct procedure for deciding the appeal. The leaned counsel did not say anything against the order of learned District Judge on the merits of the appeal. Resultantly, this civil revision fails. It is dismissed In limine.
(1) PLD 1965 (W. P.) Pesh. 219 (Hero in italics)