QADEERUDDIN AHMED, C. J.-This is a Letters Patent Appeal from the judgment of a learned Single Judge of this Court, dated the 9th of August 1971. The judgment under appeal shows that it was a first Appeal in which that judgment was given and that at the time of the hearing for its admission three legal questions only were raised. One of them was that the appellant was in adverse possession of the plot of land in dispute. The other was that Firdous Cooperative Housing Society was a necessary party to the suit and the third was that a portion of the plot of land which was in occupation of the appellant was not transferred to either the first plaintiff or to the second plaintiff.
These three legal contentions were overruled by the learned Single Judge and the appeal was dismissed summarily. It is interesting to note that an application was made to the learned Single Judge to obtain a certificate of fitness for filing a Letters Patent Appeal from that order. Such a certificate was not at all necessary, but the reason why it was obtained was different from the merits of the case, as is clear from the certificate itself. The certificate is as follows "It is contended that S. B. Can hear first appeal in motion for admission only but cannot dismiss the appeal. On the other hand it can be urged that when there is a motion for admission it will include the power to dismiss. However, it is a question of law which is likely to arise in a number of cases. I, therefore, grant the necessary certificate."
Mr. Z. U. Ahmed says that the certificate was obtained in view of rule (1) (i) of Part B of Chanter 3-B of Volume V of the Rules and Orders of the High Court of Judicature at Lahore which is as follows "(1) Subject to the provisions hereinafter set forth the following classes of cases shall ordinarily be heard and disposed of by a Judge sitting alone :-
(i) a motion for the admission of (a) a first appeal from the decree of a subordinate Court, or (b) of a second appeal the value of which does not exceed Rs. 1,000 in a land suit or Rs. 2,000 in a small cause or unclassed suit."
On the basis of the above provision, counsel apparently urged before the learned Single Judge that the dismissal of the suit by him was without jurisdiction.
2. Before us the point of attack seems to have been further deviated because a reference has been made to Begum Humayun Zulfiqar Ismail and another v. Begum Hamida Saadat Ali (1968 SCMR 828) in which their Lordships have observed as follows : "Generally in an appeal from an original decree, the appeal is both on facts and on law but in an appeal from an appellate decree or order the appeal is on grounds of law only. In an original appeal or what is more commonly called a first appeal the first appellate Court is the final Court of facts. Dismissal under Order XLI, rule 11 of the Code of Civil Procedure of a first appeal is therefore not the general rule. If the facts are not simple or undisputed a first appeal is not generally dismissed in limine."
Learned counsel, however, opened his address by referring to the documents which are on the record of the trial Court with the object of showing that the plaintiffs were not competent to institute or maintain the suit. He drew our attention to issue No. 1 which was framed by the learned trial Court as follows : "Whether the plaintiff has got locus standi for the institution of the present suit "
The trial Court decided this issue against the defendants who are the present appellants. When they went in first Appeal they did not raise any objection to the decision of that issue as is clear from the judgment of the learned Single Judge. He has observed as follows : "The learned counsel for the appellant raised three points before me." and has discussed the three points to which reference has been made above. The contentions which were raised before the learned Single Judge were decided by him and as mentioned above the decisions of those points has not been questioned before us. On the contrary, a new question has been raised which was not raised before him.
3. Counsel wanted to urge that the question of locus standi was also raised before the learned Single Judge because it was contained in the memo. Of first appeal. But the memo of an appeal is only the charter of an appellant within which he can operate during the hearing of his appeal. It does not mean that the Judge who hears the appeal has suo motu and automatically to take up every point that is mentioned in the memo of appeal and decide it. On the contrary, the correct position of law is that whatever contention has not been urged during the address before a Judge should be deemed to have been abandoned. We are in the above circumstances not prepared to allow the learned counsel to open the question of locus standi in these Letters Patent proceedings.
4. As to the judgment of the Supreme Court, with utmost respect, we are in full agreement with it.
The language, which has been carefully employed in the above quoted observations, makes it clear that there is no rigid rule for compelling, the court to admit every first appeal for issuing notice to the opposite side. In the present case, the learned Single Judge was obviously right in dismissing the first Appeal in limine.
5. Before parting with this case, we would like to express our views about clause (i) of rule (1) of Part B of Chapter 3-B of the Rules and Orders of the High Court of Judicature at Lahore. We fully agree with the view expressed by the learned Single Judge that placing a motion for admission before a Court does not mean that the Court can only admit it and not dismiss it. When a motion is placed fur admission before a Court it means that the Court has to decide whether it is to be admitted or not. In the rule on which counsel has relied and which we have reproduced above the opening sentence is indicative of this meaning. According to it the specified classes of cases are to be "heard and disposed of by a Judge sitting alone ". Disposing of a motion for admission includes dismissing it also. We are aware that a different point of view was expressed at some time with regard to this provision but, with respect to that view, we think that to give this meaning to the provision can only result in unnecessary duplication of a hearing and waste of time. If it was intended that a learned- Single Judge should dispose of a motion for admission; by admitting it only then the simpler and more direct course was to lay down that it should go directly before a Division Bench so that there may not be duplication of work. As it is, we think that there is no restriction on the learned Single Judge against dismissing a motion for admission and-we respectfully endorse the view of the learned Single Judge in this regard also. The appeal is dismissed in limine.
K. B. A.