' Abdul Aziz alongwith some others applied for allotment of an Ahata No.37 measuring 2 Kanals situated in Chak No.4-1-R-A, Tehsil Okara, then District Sahiwal. Petitioners' claim was processed and recommended for allotment vide report, dated 18-3-1963. The report reads:- [URDU TEXT] ' Vide order, dated 29-3-1963, the request for allotment made by the petitioners. was turned down by a short order of Colony Assistant/ Collector. The order recorded in Urdu reads:-- (Sd.)
C.A. Collector Camp at Okara.
' About a year thereafter, an application for allotment of the same Ahata was moved by the respondents which succeeded and the allotment of Ahata in question was made in the names of the applications jointly vide order, dated 30-4-1964 by the Colony Assistant/Collector. It may be of some interest/advantage to reproduce the order, dated 30-4-1964. It reads:-- ( Sd.)
C.A. Collector Camp at Renalkhurd.
' Petitioners appealed before Additional Commissioner Revenue, Multan and challenged the soundness of order, dated 30-4-1964. Appellants, for some misunderstanding about the date did not put in appearance on the date fixed before the learned Additional Commissioner, Revenue. Consequently, the appeal was dismissed not only for default but on merits also. Petitioners whose appeal was so dismissed, moved a petition for review seeking its restoration and decision on merits after hearing them. Vide order, dated 8-4-1966 restoration/review petition was dismissed on the short ground that the powers of Review in regard to an order of the predecessor was not available under law. Order passed in review petition reads:- - "Abdul Aziz son of Qalandar Khan and others caste Rajput of Chak No.4/1-R.A. Tehsil Okara District Montgomery appellants, have filed an application for review of the order, dated 21-11-1964 of the Additional Commissioner (Revenue), Multan by which he rejected their appeal against the order, dated 30-4-1964 of the Collector, Montgomery with regard to allotment of an theta in the Chak.
2. I have heard the learned counsel for both the parties. I have also seen the record.
3. The learned counsel for the petitioners contends that the Additional Commissioner could not reject the appeal on merits in the absence of the parties. He should have dismissed the appeal under Order XLI, rule 11 of the Civil Procedure Code. This contention should have been raised by the applicants in the Board of Revenue. I have no powers to review the order of my predecessor. The application for review is held to be incompetent and is hereby rejected.
4. Against this order, the petitioners approached Board of Revenue in its revisional jurisdiction. Here too, the petitioners did not succeed and their revision petition was dismissed vide order, dated 7- 12-1967. It is in this background and circumstances that the petitioners have invoked constitutional jurisdiction of the High Court praying that order, dated 30-4-1964 of Collector, order, dated 21-11- 1964 read with order, dated 8-4-1966 of learned Additional Commissioner, Revenue and order, dated 7-12-1967 passed by learned Member, Board of Revenue be set aside and be declared to have been made without lawful authority. Writ petition was admitted to hearing on 22-1-1968 by a Division Bench of this Court with the following order:-- "22-1-1968. Rao Muhammad Ashfaq Khan Adv.
It is contended that the ex parte order passed against the petitioners by the Addl. Commissioner (Revenue) on 21st November, 1964 was liable to be set aside. The petitioners had applied for the review of that order on the ground that there was sufficient cause for their failure to appear on the date of hearing. But that application was rejected on he erroneous assumption that the learned Additional Commissioner (Revenue) had no jurisdiction to entertain the application. On revision, it is contended that the learned Member, Board of Revenue had erred in law in holding that the petitioners were not entitled to a hearing. Admit. Notice for an early date.
(2) Status quo in the meantime."
' Written statement on behalf of private respondents resisting the maintainability of the writ petition was filed on 30-9-84.
4-A. I have heard learned counsel for the parties and examined the available material with their assistance. Learned counsel for the petitioners contended that:--
(i) the Collector, without affording an opportunity of hearing to the petitioners disallowed their claim vide order dated 29-3-1963. Without attending to and caring for the objections raised to the entertainment of the petitioners' claims, allotment of village site was made to the respondents. In making allotment in favour of the respondents, the petitioners were not afforded any opportunity of hearing;
(ii) the appeal could not have been rejected on merits when it suffered from default in appearance. Learned Additional Commissioner acted illegally in discussing and deciding the appeal on merits in the absence of the appellants. Appeal should have been dismissed in default of appearance and decision on merits was neither proper nor legal;
(iii) the learned Additional Commissioner had powers to restore the appeal dismissed in default_ Even if it amounted to exercising review jurisdiction, the Commissioner was possessed of such powers subject to sanction of the Member, Board of Revenue;
(iv) revision was not barred by time. Order refusing restoration of appeal was passed on 8-4-1966 (Annexure G) and revision was received on 13-5-1966 as is evident from the writing appearing on the face of order dated 7-12-67. The petitioners were entitled to exclusion of the time spent in review proceedings bona fide and in good faith.
' Learned counsel for the respondents submitted that:--
(i) The petitioners' application had been finally dismissed on 29-3-63. In the absence of any appeal/revision by the petitioners, the above-noted order attained finality under law and could not have been challenged in proceedings relating to the allotment made in favour of the respondents.
(ii) Petitioners were not in possession of the site and they had no better right to get the village site allotted to them as compared to the respondents. The respondents because of their size of holding in the chak, were, therefore, rightly accommodated by the Colony Authorities.
' The petitioners applied for allotment of village site on the basis of their holding in the Chak. Their claim for allotment was recommended by the staff. Colony Assistant/Collector without hearing the petitioners through a very brief and mute order, rejected the prayer for allotment. When subsequently, a similar prayer was made jointly by the respondents for allotment of the same village site, the Colony Assistant/Collector made order of allotment in the name of the three brothers presumably forgetting or overlooking that this too was also a joint request. Appeal was dismissed on 21-11-1964 as the petitioners failed to appear on the date fixed. Application for restoration was rejected on the sole ground that powers of review were not available. When the respondent appears and the appellant is absent on the date fixed for hearing the appeal is to be dismissed in default under Order XLI, rule 17, C.P.C. Appeal cannot and should not in all fairness be decided on merits against the defaulting appellant. A revenue officer in regard to various matters including dismissal of an application in default is governed by the Code of Civil Procedure and the dismissal in default must be deemed to be one under Order XLI, rule 17, C.P.C. with the result that the remedy provided under Order XLI, rule 19 is open to the appellant. When an appeal dismissed in defualt is restored to file, it is not in exercise of a review jurisdiction. There is ample power in the Court to restore a matter dismissed in default under the Land Revenue Rules, for such power one has not to look to the review jurisdiction. Where the appellant is absent on the date of hearing, the Court may either dismiss the appeal in default or adjourn the hearing of the same but it cannot decide the appeal on merits. In case, despite absence of the appellant, the appeal is taken up for hearing and a decision is rendered, on its merits, the disposal shall be treated to be a dismissal in default. There is consensus in support of the view that I am taking in the above matter. Reference may be made to the following precedents: In Kawleshwar Singh and another v. Reghubir Singh and others AIR 1961 Pat. 299, the Court observed:-- "In default of the appellants, the appeal ought not to be decided on merits. The Court either ought to adjourn the hearing of the appeal or ought to dismiss it for default under rule 17 of Order XLI of Civil Procedure Code. It has no jurisdiction to dismiss on merits. Where therefore, the appellant was absent on the date of hearing and the respondent decided the case on merits, practically dismissing the appeal, the order was held to be one dismissing the appeal for default under rule 17.
When the order was so treated by the appellant and on application for restoration of appeal under rule 19 was filed, the only question was as to whether the appellants were prevented by sufficient cause from appearing when the appeal was called out for hearing.
' In Tahir Sheikh Chowkidar and others v. Otar-ud-Din Hawaldar and others AIR 1929 Cal. 475, a Division Bench observed:-- "By the words 'the Court may make an order that the appeal be dismissed', it is meant that the Court may dismiss the appeal or may adjourn it to some other date or pass other orders, but the Court is not authorised to consider an appeal in the absence of the appellant and decide on merits. The law contemplates that the appellate Court must hear both parties to the appeal and then decide according to its judgment."
' In Basu Dev v. Bideshi and another AIR 1929 Rang. 11(2), a learned Single Judge observed:-- "Order XLI, rule 17 is intended to give the Court power to adjourn a case if it thinks fit. It seems distinctly unfair that for default, the appellate Court may pass an order without hearing the appellant's Advocate or without hearing the appellant which would entirely preclude him from even afterward questioning the finding of fact."
' In Messrs S.M.Abdullah Sons v. Messrs Pakistan Mercantile Corporation Ltd. Karachi and another PLD 1976 Kar. 268, a learned Single Judge construing the provisions of Order XLI, rule 17 read with rules 19, 21 and 30 of the Code of Civil Procedure, observed:-- "It is after the judgment is pronounced under the above-said rule that the appellate Court would become functus officio, so that further remedies if any could only be sought by way of appeal or revision in the higher Court. There is no other provision in Order XLI, C.P.C. dealing with the procedure relating to appeal which empowers the Court to pass a judgment on merits so as to finally dispose of this case from its file. So far as the provisions relating to non-appearance of parties in appeal are concerned the Scheme of Order XLI, C.P.C. generally and rules 17, 19 and 21 of Order XLI, C.P.C. quite clearly indicates that the dismissal of an appeal in consequence of non- appearance does not make an appellate Court functus officio, but the Court retains seizin of the case, in so far as if the defaulting party appears subsequently and shows sufficient cause for his non appearance, the Court could provide him with an opportunity of hearing and dispose of the matter finally on merits. This opinion is further fortified if a reference is made to rule 11 of Order XLI, C.P.C. which deals with the summary hearing of the appeal for admission. It, in substance, provides that the appellate Court on a day fixed for the purpose after hearing the appellant or his pleader may dismiss the appeal summarily. Such dismissal is also on merits and the only remedy for that lies in second appeal. Whereas, sub-rule (2) of rule 11 of Order XLI, C.P.C. provides as under:-- "If on the day 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 Court may make an order that the appeal be dismissed."
' The perusal of the above provision would quite clearly show that such dismissal is not envisaged to be on merits because under rule 19 of Order XLI, C.P.C., the defaulting appellant has a right to move readmission of the appeal so dismissed for default.
5. 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.
6. For all these reasons I am very clearly of the opinion that the absence of the appellant at the time of hearing does not empower the c appellate Court under rule 17 of Order XLI, C.P.C. to dismiss the appeal on merits.
7. The position that merges, therefore, is that the judgment pronounced by the learned First Additional District Judge dated 17-3-1973, on merits in violation of the mandatory provisions o law, can only be deemed to be a dismissal in default, as ought to have been done. Accordingly the application dated 28-3-1973 filed on behalf of the appellant was in substance an application under the law and ought to have been disposed of on its merits. The order dated 30-5-1973 dismissing the said application is, therefore. unsustainable and must, therefore, be set aside."
' Similar are the observations made in case M. Saeed Ahmad Dar and 14 others v. Shahab-ud-Din and 16 others PLD 1982 Lah.
362. The relevant observations are:- "To my mind the word "may" accruing in sub-rule (1) of rule 17 gives a discretion to the appellate Court to dismiss the appeal in default or adjourn it to another date for hearing but it does not empower that Court to dismiss the appeal on merits. This view is supported by the case of Messrs S.M. Abdullah and Sons relied upon by learned counsel for the petitioner. The dismissal of the appeal on the ground for limitation was also its disposal on merits. Since the learned Additional District Judge could not hear and decide the appeal on merits, in the absence of the petitioner or their counsel, the order made by him was without jurisdiction."
' Order dated 8-4-1966 refusing restoration, therefore, proceeded on absolutely erroneous consideration of law. An order refusing to restore the appeal, itself was appealable to Member, Board of Revenue. In any case revision petition was not barred by time. 90 days period, prescribed for invoking the revisional jurisdiction by a party had not expired from the date of order dated 8-4- 1966 refusing to restore the appeal to file. If revision preferred is taken only against the earlier order dated 21-11-1964 of learned Additional Commissioner even then the petitioners had sufficient cause for coming late to the revisional Court inasmuch as they were bona fidely prosecuting their claims before learned Additional Commissioner in seeking restoration of the appeal earlier dismissed in default. The petitioners were entitled to the benefit of time bona fide spent in seeking restoration of their appeal. Revision thus could not be thrown out on the bar of limitation. Village site was in possession of the petitioners though their possession has been described as unauthorised by learned Member, Board of Revenue in his order dated 7-12-1967. Petitioners were also claimants for the allotment of the village site. They held/owned some land in the Chak. Their claim for allotment was, like the respondents, entitled to consideration. Colony Authorities have, so to say, applied different standards in the matter of allotment in respect of the two sets of claimants. When the petitioners applied, their request was turned down saying that they had applied jointly and further the Commissioner's sanction was needed. When the respondents entered the field both these alleged obstacles evaporated and did not operate as any serious bar in making allotment in their favour. Such like exercise of powers in dealing with the rights of citizens of this country, to say the least, smack of arbitrariness. All have to be treated alike justly, fairly and judged strictly in accordance with the standard laid down in law for them. When the impugned orders are seen in the light of the aforenoted discussion, I have a feeling that the petitioners' case has not been dealt with in accordance with law. Writ petition, consequently is allowed, impugned orders are set aside and declared to have been passed without lawful authority. Necessary corollary of this declaration is that the case is remitted to the learned Collector, Okara for re-decision on merits after affording a reasonable opportunity of hearing to both the parties. Parties in the circumstances of the case are dire,cted to bear their own costs.