QADEERUDDIN AHMED, C. J.--We have heard Mr. Muzaffar Hassan again in continuation with our order of the 29th of April 1971. On that date also, counsel was heard at full length and was allowed to make his submissions without res--triction on time. He, however, asked for an adjournment because he pleaded that he was not fully prepared on that date.
2. Mr. Muzafi'ar Hassan has advanced arguments on two questions. Firstly. He contended that this appeal cannot be dismissed without issuing notice to the respondent and giving an opportunity to her of being heard. Secondly, he argued that the s--cond appeal against the Judgment of which this appeal has been preferred was within time; but it has been dismissed as barred by time although on merits it was found,to be acceptable.
3. In support of the first contention, counsel took the stand that a Letters Patent Appeabis not an appeal in the sense that an erroneous Judgment of the lower Court is brought for rectification to the notice of a higher Court but is a continu--ation of the same proceedings as were held before a Single Judge inasmuch as the Judgment of a Single Judge is no less a decision of this Court than the decision of a Letters Patent Bench because the only differende between the Judgment of a Single Judge and the Judgment of a Letters Patent Bench is that the decision of a Letters Patent Bench is the final Judgment of this Court whereas the Judgment of a Single Judge is not final to the extent that it may be questioned before two Judges of this Court. He referred to rule 46 of the Sind Chief Court Rules (A. S.) which is as follows:- "46. The appeal shall not be fixed for preliminary hearing under Order XLI, rule 11 of the Code but shall be brought before a Division Court for final hearing after it is admitted to the regis:-3r and notice of the appeal is served upon the respondents."
4. On the basis of the above provision, he coatended that since no preliminary hearing of an appeal preferred to two Judges of the Sind Chief Court was permitted, on the same token there should be no preliminary hearing of a Letter's Patent Appeal. He argued-that an appeal preferred under the Code of Civil Procedure is governed by a different law because rule 11 of Order XLI permits its dismissal without notice to the opposite side. That rule is as follows:- "11(1) The Appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is pre- -ferred and without serving notice on the respondent or his pleader.
(2) 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, the Court may make an order that the appeal is dismissed.
(3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred." '
Counsel argued that in view of the words "may dismisi the appeal without sending notice . . . . The respondent or his pleader" an appeal can be dismissed in terms of the Code of Civil Procedure without notice to the opposite-party or his pleader. No such words exist In clause 10 of Letters Patent ; therefore, a Letters Patent Appeal, according to counsel, gannpl be dismissed without a notice to the respondent or his pleader.
5. The Sind Chief Court Rules (A. S.) do not apply to this Court. Moreover, if the above argument of counsel is accepted, then it would extend to every Letters Patent Appeal irrespective of whether it is barred by time or teas been filed without paying proper court-fees. Additionally, the argument does away with ,q the distinction between a preliminary hearing and fullest hearing in the absence of the opposite-party because the emphasis is not on the nature of hearing but on notice to the opposite side or his pleader. This aspect of the view shows that the argument is capable of being stretched too far.
6. In support of the above contentions, counsel referred to Sh. Mahboob Alam v. Sh. Mumtaz Ahmad (1), Aurangzeb v. Bakhshi Mahmud Ali (2), Ramanarayan Triyoginarayan Trivedi and others v. State of Madhya Pradesh and others (3), Abdul Haq v. Saffur Rehman and others (41 and Maulvi Qamar- ud-Din V. Ghulam Muhammad (5). The common consideration in these Judgments was that a Letters Patent Appeal was not an appeal in the sense of invoking jurisdiction of a higher Court for setting aside or modifying the decision of a lower Court. Counsel's point in referring to these Judgments was that an appeal by which the jurisdiction of a Higher Court is invoked should be governed by different considerations from the considerations which should apply to an appeal in which the Judgment of a Single Judge is placed for re-consideration by two Judges of the same Court. The distinction does not appear to us to be either material or significant for purposes of deciding whether notice should be given to the opposite side or not, but apart from that aspect the distinction has no relevancy to the question of con--ferment of finality on the Judgment of a Single Judge by the decision of two Judges, because the Judgment of' two Judges would also be final, in so far as the appellant is con--cerned, even if a Letters Patent Appeal is dismissed without notice to the opposite side. From this point of view it is immaterial whether notice was given to the opposite side or not.
7. The anxiety of counsel to press for notice to the opposite side apparently arose owing to a lurking feeling that a preliminary hearing, as the expression was formerly understood or may even now in certain cases be understood, is much less in thoroughness than the hearing which takes p'ace after notice to the opposite--party and after a full-dress deiate is held. This point of view f bad its validity when the practice used to be to treat the prelimi--nary hearing or Katcha^Peshis as of lesser importance than the hearings which took place after notice and appeals used to be dismissed either without recording reasons or jotting down a
(1) PLD 1960 Lah. 601 (2) PLD 1961 Lah. 619 Q) AIR 1962 Madh. Pra. 93 (4) PLD 1968 Lah. 478
(5) PLD 1971 Lah. 408 word or two before adding the word 'dismissed'. The situation had changed considerably during the last two and a half decades. Now owing to the directions of the superior Courts and particularly of the Supreme Court, the Judg.s are required to indicate reasons even for admitting an appeal to be heard after notice to the opposite side and much. More so to record reasons for dismissing an appeal. This means that before a notice to the opposite side the Judges have to hear an appeal with due care and to make up their mind whether it has substance in it or not. The consequence is th it most of the preliminary hearings or Katcha Peshis consume a good deal of time and attention of the Judges. In a number of cases the parties or the Advocates are heard at the fullest length ; therefore, the expression "preliminary hearing" or "Katcha Peshi" has lost its previous connotation and should not now be considered in every case to indicate cursory attention of the Judges. In this case, for instance, we have heard Mr, Muzaffar Hassan on the previous date until he asked for an adjournment on the ground that he was not fully prepared. On the second date also we have heard him at such length as he chose to adopt. It would be misnomer, therefore, to call this hearing as a "preliminary hearing" or "Katcha Peshi" in the sense of indicating that fullest opportunity was not given to the appellant for making its submissions.
8. In a case, therefore, in which the appellant or his advocate is beard fully it becomes Immaterial to him whether notice is given to the opposite side or his pleader or not, because I the presence of the opposite side cannot be helpful to the appellant. On the contrary, his position becomes more vulner--able because the opposite side is interested only in criticising and finding fault with the submissions of the appellant.
9. We think that it would be unjust to give a notice to the opposite side if the appellant is unable to satisfy the Court after doing its best because issuance of notice in such a circumstance would be nothing more than harassm ent to the opposite side and would involve entirely unjustified delay in the final disposal of the case. We see no good reason why the opposite side should be called upon to appear, incur expenses and wait for a long time for the final decision if the appellant is unable to satisfy the Court in spite of having every opportunity to do so and of using ft to its best advantage.
10. The argument of Mr. Muaaffar Hassan that an appeal can be dismissed without notice to the opposite side only by virtue of rule 11 of Order XLI, C. P. C., indicates a narrow view of appellate jurisdiction. Revision application can also be dismissed without giving notice to the opposite side.
The Courts are empowered, in suitable circumstances, to dismiss cases without notice to the opposite side, in exercise of Original Juris--diction also. For instance Constitutional Petitions can be dismissed without notice to the opposite side and so can review appli-ations be dismissed. Mr. Muzaffar Hassan said that a suit could not be dismissed without giving notice to the opposite side but this is also not quite correct because a suit can be dismissed without notice to the opposite side under rule 11 of Order VIT, C. P. C. Clauses (a) and (d) of that rule should be noticed in particular.
They are as follows :-- "11. The plaint shall be rejected in the following cases:-
(a) Where it does not disclose a cause of action.
(b) . . . . . . . . . . . .
(c) . . . . . . . . . . . .
(d) Where the suit appears from the statement in the plaint to be barred by any law."
Clause (d) Is wide and of a general nature. A plaint which is barred by any law can be rejected outright. The ambit of clause (a) is also extensive inasmuch as a plaint can be rejected without notice to the opposite side if the facts alleged in it do not disclose a cause of action. If they do disclose a cause of action, then a different situation is created because to find out whether they are true or false, right or wrong, it becomes necessary to take the help of the defendant because the Court has no machinery to inquire into that aspect independently. But the situation is entirely different when a matter comes for decision before a Court in exercise of appellate jurisdiction because at that stage the factual position has already taken a shape and the appellant cannot take the stand that the evidence which has been brought on record should not be looked into for final adjudication without the help of the opposite side, unless of course the appellant has a prima facie valid grievance that he was not given an opportunity of presenting his case fully or that the Court went wrong in omitting to consider rele--vant or admissible evidence or relied on evidence which was either inadmissible, irrelevant or not in existence at all.
11. Our conclusion, therefore, is that the first contention of counsel that we were bound to give notice to the opposite side before finally disposing of this appeal is not acceptable assound.
12. The second contention of counsel, however, appears prima facie to be weighty and to this respect we have already observed in our previous order as follows:- "As to the application of section 5 of the Limitation Act, counsel said that the learned Advocate who preferred the Second Appeal was not mistaken when he thought that the period of limitation for a Second Appeal preferred under the West Pakistan Urban Rent Restriction Ordinance, 1959, was 90 days and was, on the contrary, mistaken when he thought that the period of limitation for such appeals was 30 days. In support of this contention, counsel has drawn our attention to subsection
(4) of section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959 and argued that the contents of this subsection are incongruous with the contents of subsection (l). He explained the reason for this incongruity to be that subsection (1) was originally different from what it Is now.
When it was amended it was necessary that subsection (4) should also have been amended to be dovetailed with the new provisions but a mistake, omission or other reasons, subsection (4) has been left unaltered with the result that subsection (4) speaks of "the appellate authority appointed by the Government" although no appellate autho--rity is appointed by the Government in terms of subsection (1) as it stands now.
In these circumstances, according to counsel. If the period prescribed for an appeal to the appellate authority appointed by the Government is 30 days, then it cannot be said to be applicable to the District Judge on whom jurisdiction is now conferred under subsection (1) of the section. In the present circumstances, counsel argued, either Article 156 of the Limitation Act should be applied which is 90 days but if it is not applied on the ground that it is appli--cable to appeals which are filed in terms of the Code of Civil Procedure, then the conclusion to be drawn is that there is no period of limitation at all for such appals and that in such circumstances Second Appeals should be treated in the same manner in which Courts have treated Revision Applications for which there is no period of limitation and only a reasonable time is considered to be the appro-- priate period.
Our feeling, which we have expressed, as at present advised, Is that subsection (4) of section 15 of the Ordinance still remains the section which prescribes the period of limitation for Second Appeal.
It is true that there is a grave incon--gruity in it when read with subsection (1) of that section, but it would amount to going too far to say that sub--section (4) does not apply to Second Appeals at all, because the intention to apply that period to Second Appeals appears to be clear."
13. In view of the above observations and to that extent only we admit this appeal.
K. B. A.Appeal admitted.