1. ' This is a civil revision against the judgment of the learned District Judge, Sukkur dismissing the first Civil appeal in limine. Petitioner Muhammad Parial is a local. He is occupying a house since 1950.
2. Under the Settlement Scheme No.1 he was entitled for the transfer of this house as a local in possession. On 15th August, 1959 he filed his L.H. form praying for the transfer of the house. It is further stated that thereafter he moved several applications for issue of appendix. According to him three applications dated 10-12-1960, 9-9-1962 and 17-3-1965 were moved but no action was taken by the Settlement authorities either on his L.H. form or on these applications. It is alleged that the Deputy Settlement Commissioner, respondent No.4 collusively and surreptitiously transferred the house to respondent No.5 S.M. Wajahat. This transfer was confirmed by respondent No.3, Additional Settlement Commissioner. The applicant came to know about it when this transferee sought to eject the present applicant. On acquiring knowledge through notice of ejectment the applicant reacted and filed a suit being Suit No.161/79 in the Court of Civil Judge, Sukkur praying for the following reliefs:- "(i) To declare that the auction of the said premises held on 24-4-1961 was illegal as well as null and void.
(ii) To declare that the auction of the suit premises held on 27-4-1968 is null and void.
(iii) To cancel the T.O. No.13571 dated 21-8-1977 in respect of the suit premises.
(iv) To declare that the plaintiff is entitled to transfer of the suit house No.A.1408/20 Kiri quarters old Sukkur by virtue of the possession of the house valuing less than ten thousand rupees and L.H. form dated 16-8-1959.
(v) To grant mandatory injunction directing the defendant No.2 to transfer the suit premises to the plaintiff.
(vi) To grant injunction restraining the defendant No.5 from ejecting the plaintiff from the suit house by himself or through his agent or attorney or transferee."
3. No contest was put up by the first four respondents. Only the transferee Wajahat entered appearence in the suit and filed his written statement. Following issues were framed:-
(1) Whether the auctions of the suit premises held on 24-4-1961 and 27-4-1968 by the defendant No.4 are null, void and illegal? If so, its effect?
(2) Whether the plaintiff had filed LH form on 16-8-1959 for the transfer of the suit property and whether it was not decided by the defendant No.4?
(3) Whether the suit is time-barred?
(4) Whether the suit is not maintainable?
(5) What should the decree be?
4. ' The evidence was led by the parties. The applicant was examined and he made a statement that "The defendant No.5 has played fraud upon the Settlement authorities by declaring the property as open plot and by purchasing it for Rs.1,000 though it was fully constructed house. The transfer in favour of defendant No.5 is illegal and mala fide. The auction was not open nor we received any notice in person or through press" He denied having paid any rent or having executed any agreement before the Martial Law Authorities before whom the matter had agone at the instance of the respondent No.5. He filed copies of the applications which he had filed before the learned Settlement Commissioner. At his request one Ishrat All an Inspector of the Settlement Department, Sukkur was summoned and examined as a Court witness. He was summoned to produce record in support of the case pleaded by the applicant that he had filed L.H. Form as well as three applications requesting for issuance of the appendix. This witness produced a file which contained copies of the applications dated 10th of December, 1960 and 9th of September, 1962. He was not able to give any reason why the originals were not on the file. The grievance of the petitioner has remained that this file was incomplete. The application as well as L.H. Form were missing in the file, for which according to the applicant no satisfactory explanation was forthcoming. The respondent No.5 was also examined and he denied that the transfer in his favour was in any manner surreptitious or questionable. He however, admitted "I do not know if plaintiff had filed application against me before Settlement authorities. I do not know if plaintiff had filed L.H. Form before Settlement authorities. The learned Civil Judge dismissed the suit. According to the learned Judge the applicant had not been able to prove that L.11. Form was filed. On issue No.3 the learned Judge was of the view that the suit was time-barred. According to the learned Judge Article 14 of the Limitation Act was applicable to the case which prescribes period of one year for filing such a suit.
5. It is not necessary to examine the evidence in depth because the grievance that has emerged now is of a technical nature and the learned counsel appearing for the applicant has laid emphasis on that point. Against this judgment and decree the applicant filed an appeal. This appeal came to be heard by the learned District Judge, Sukkur who, I must say, has given quite a close appreciation of the facts involved but has dismissed the appeal in limine. Against this judgment the applicant has filed this revision.
6. ' Contention raised is that this was a case which was based on appreciation of facts and the first appeal ought to have been admitted as a matter of course. Counsel contends that in first appeal he would be entitled to move the Court for examining further evidence and summoning fresh material. This, according to the learned counsel, can be availed, only if the appeal advances to a stage beyond the admission stage. On merits counsel contends that this was not a case of open plot but of residential house which should not have been disposed of as a plot. On the question of limitation the counsel argues that Article 120 of the Limitation Act and not Article 14 is applicable. In the very nature of things the points involved in this case were of highly controversial nature. Much depends on the question whether the applicant had within the prescribed time filed his L.H. Form to invoke his right of transfer as a local in possession. On this point the evidence was found to be inadequate. The assertion regarding filing of the L.H. Form became highly debatable as reflected in the appellate order passed by the learned District Judge in the following lines of his judgment in para.8:- "The applicant's case is that he submitted L.H. Form. He has not clarified how was it submitted.
7. Assuming that he had submitted it by post, he should have produced acknowledgement receipt to prove the contention. if he had filed it personally he would have got counterfoil of the application under seal of the Deputy Settlement Commissioner. Thousands of persons had filed forms and received counterfoils appended with the form as a token of receipt thereof. Besides the L.H. and other forms so received were entered in relevant registers. The appellant has not cared to call for register of L.H. forms. He has not produced either counterfoil of the L. H. Form or a postal receipt to substantiate his claim. He has relied upon two applications originals whereof are also not available on record of Settlement Authority. Inward register of the department was not called to prove that the applications were in fact received in the Office of the Deputy Settlement Commissioner on the alleged dates. It does not require evidence to prove that documents received in office are entered in inward registers in the ordinary course of business. There is every likelihood in the circumstances that the photostats of these applications have been recently planted on the file to boost up case of the appellant. The finding of lower Court in this regard is, therefore, unassailable."
8. ' There is no doubt that the learned Judge has taken pains and given a serious thought to all possibilities and all necessary modes which could be employed to prove the filing of the L.H. Forms and the applications. But this itself becomes a good ground to show that at a later stage all or some of the material visualized by the learned Judge could be brought on the record or many of the doubts raised by the learned Judge in his order could be explained at the time of hearing of the appeal. This is precisely the objection of the learned counsel for the applicant that the conclusions drawn in this judgment are premature inasmuch as the appeal never reached the stage of regular hearing where arguments in details could be addressed to the learned Judge and the case could be examined in full thoroughness. Two cases have been cited by the learned counsel which lend support to his submissions. In 1968 SCMR 828 Hamoodur Rahman, J. (as he then was) dealing with a case under the Rent Act made the following observations:-- "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."
9. ' Another case relied upon by the learned counsel is PLD 1973 SC 1. In this case the powers of a Single Judge of a High Court to dismiss an appeal in limine came to be examined. But one passage which may profitably be quoted is on interpretation of Order XLI, rule 11.
10. "As has been observed by this Court in the decision cited above, dismissal in limine of a first appeal is not the general rule but is resorted to only in those cases which are of such a simple nature that no question of law or fact arises for consideration. In such cases rule 11 of Order XLI of the Code of Civil Procedure does certainly give the Appellate Court the power to dismiss an appeal in limine."
11. ' In this region it is a time-honoured practice that a first civil appeal is admitted as a matter of course. As I have stated above, in the present appeal important questions of law and facts are involved and it would be in the interests of justice if the findings and conclusions drawn by the trial Court are examined in depth by the first appellate Court. I would, therefore, allow this revision, set aside the appellate judgment and remand the case to the learned District Judge with the direction that the first appeal should be admitted and disposed of on merits according to law.