' Muhammad Saeed, the petitioner, promised to transfer residential plot measuring 2 Kanals and three shops situate in Village Chak Abdullah Aottar Tehsil and District Bahawalnagar in favour of the respondents. The bargain for the plot was transacted for Rs.8,000/- whereas the sale price of the shops was fixed at Rs.4,500/-. Abdul Ghaffar Shah, the plaintiff-respondent expended Rs.2,200/- in improving the residential plot. The petitioner-defendant resiled from the original agreement and was reluctant to pay Rs.14,700/- to the plaintiff who brought a suit for the recovery of the same.
2. The petitioner-defendant contested the suit and claimed Rs.24,732.71 by way of set off. He averred that the suit of the plaintiff was barred by time. The learned trial Court formulated the following issues:-
(1) Whether the suit of the plaintiff is within time ? OPP
(2) Whether the plaintiff is entitled to recover Rs.14,700/- from the defendant on the grounds as contained in the body of the plaint? OPP
(3) Whether the defendant is entitled to claim set-up in the sum of Rs.24,732.41 against the present plaintiff? OPD
(4) Relief.
' After recording the evidence of both the parties, Mr. Abdul Karim Langah, Civil Judge Ist Class, Bahawalnagar, decreed the suit of the plaintiff-respondent for the recovery of Rs.14,700/-.
Muhammad Saeed lodged an appeal before the learned District Judge, Bahawalnagar.
Incidentally the appellant Muhammad Saeed is the father of Mr. Fazal Saeed, Advocate. The learned first Appellate Court directed him to appear in person. He did not appear and the learned counsel for the petitioner made a statement on 31-1-1987 that he had informed Mr. Fazal Saeed Advocate, the son of the petitioner, so that he may appear before the learned District Judge but the petitioner had gone out. The learned counsel for the petitioner sought an adjournment and stated that in case the appellant did not appear on the next date of hearing then he should have no objection on any proceedings to be taken by the learned appellate Court. The case was procrastinated to 15-2-1987. On the said date, the appellant-petitioners again failed to appear and his learned counsel made a statement that he had informed the appellant regarding the order of the Court and had instructed him to appear on the fixed date but he had not appeared. The learned District Judge, Bahawalnagar, extended the provisions of Order X, Rule 4, C.P.C. Against the petitioner-appellant and dismissed his appeal.
3. The revisional jurisdiction of this Court has been invoked against the laconic order of the learned District Judge dated 15-2-1987 who had dismissed the appeal with costs.
4. It has been contended that the learned Appellate Court was not competent to apply Order X, Rule 4, C.P.C. In an appeal and Order X, C.P.C. Was only applicable when the suit was at the preliminary stage before the trial Court. Has cited Sardar Balwant Singh and others v. Sardar Kirpal Singh (IV-Indian Cases 632) in which it was held that it was unjustifiable procedure on the part of a Court to examine a party after arguments on the case have been heard with reference to a clear statement which was made by him on a previous occasion. This precedent is not applicable to the facts of the case in hand. PLD 1963 Lahore 436 (Jalal Din and another v. Azizud Din and another) has been referred to in which it was held that the Appellate Court could not act under Section 13 (6) of the Urban Rent Restriction Ordinance 1959, when a party had failed to deposit future rent in Court. In fact, Civil Procedure Code is not applicable to the cases under Urban Rent Restriction Ordinance 1959, and the principle enunciated in this precedent cannot be extended to the facts of the case in hand.
5. Order X, Rule 4, section 107 and Order 40, Rules 33 CPC may be reproduced for the facility or reference: - Order X, Rule 4.- z"Consequence of refusal or inability of pleader to answar.-
(1) Where the pleader of any party who appears by a pleader or any such person accompanying a pleader as is referred to in rule 2, refuses or is unable to answer any material question relating to the suit which the Court is of the opinion that the party whom he represents ought to answar, and is likely to be able to answer if interrogated in person, the Court may postpone the hearing of the suit to a future day and direct that such party shall appear in person on such day.
(2) If such party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit.
' Section 107.-- Powers of Appellate Court.- (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein."
' Order 41 Rule 33.- Power of Court of Appeal.-- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection: ' (Provided that the Appellate Court shall not make any order under Section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.)"
6. It may be seen from the above provisions of law that an Appellate Court is competent to make any order which can be passed A by the trial Court. The same view was upheld in Haji Muhammad Shafi v. Mst. Rani and others 1981 CLC 1728.
7. I am thankful to Ch. Naseer Ahmad, Advocate, for quoting Manzoor Ahmad Khan v. Muhammad Bashir (PLD 1978 Lahore 1025) which runs counter to the stand of the petitioner. In the said precedent, the parties entered into a compromise during the pendency of appeal and one of the parties who was directed to appear in person did not appear before the learned Appellate Court.
The Appellate Court applied Order 10 Rule 4(2) CPC read with Section 107 and Order 41 Rule 33 CPC.
The appeal was not dismissed in accordance with the provisions of Order 41 Rule 33 CPC. The appeal was disposed of in terms of the compromise. It shows that in such an eventuality as the facts of the instant case evince, the provisions of Order 10 Rule 4 (2) read with Section 107 and Order 41 Rule 33 of the CPC can be made applicable. In this case, the learned Appellate Court had granted two opportunities to the appellant-petitioner who did not bother to appear and his learned counsel made a statement B that any order may be passed which the Appellate Court deemed appropriate. The learned District Judge has rightly extended the provisions of Order 10 Rule 4 (2) read with Section 107 and Order 41 Rule 33 CPC. He has not committed any illegality or material irregularity in the exercise of his jurisdiction. I, therefore, see no merit in this Revision Petition and dismiss the same in limine.