This appeal has arisen out of order, dated the 2nd November, 1974, passed by an Additional District Judge of Gujranwala. By the impugned order the learned Additional District Judge had declined to restore an appeal filed by the appellants, Muhammad Tufail and others, against one Din Muhammad, which had been dismissed by him in default.
2. Before the appeal was so dismissed, it was pending before the District Judge, GuJranwala. On 23rd - December, 1972, the learned District Judge transferred the appeal to the learned Additional District Judge and directed the parties to appear before him (Additional District Judge) on 5th January, 1973. No one entered appearance before the learned Additional District Judge on the last mentioned date and, therefore, the appeal was dismissed for want of prosecution. The appellants made an application for restoration of the appeal stating that the said date, namely, 5th January, 1973 was not notified by the learned District Judge while making order, in the presence of the parties, with regard to the transfer of the appeal to the learned Additional District Judge and that the direction in respect of appearance of parties before the learned Additional District Judge was added subsequently. The said Din Muhammad, who was respondent in the instant appeal, died during the pendency thereof, whereupon his daughter, Miss Surraya Sultana Butt and others, were brought on the record as his legal representatives.
3. During pendency of the application for restoration of the appeal before the learned Additional District Judge the Reader of the learned District Judge, namely, Bashir Ahmad Wync was examined as C.W.
1. When cross--examined, it was admitted by the Reader that, that portion of the order of the learned District Judge which made a mention of the date on which the parties were required to appear before the learned Additional District Judge had been written with ink different from the one which had been used for writing the rest of his order. Despite this admission of the Reader, learned counsel for the appellants, Mr. Karamat Nazir'Bhindari, Advocate, did not lay much stress on the plea that the appellants were not aware of the fact that they were required to appear before the learned Additional District Judge on 5th January, 1973 and maintained that he would like the appeal to be decided on only one ground on which it was admitted to a regular hearing by Mr. Justice Saad Saood Jan, who is now adorning the Supreme Court of Pakistan as an Hon'ble Judge thereof. Contention embodied in the admitting order is that the date on which the appeal was dismissed in default was not a date fixed for hearing of the appeal.
4. It was argued by learned counsel for the appellants that while transferring the appeal to the learned Additional District Judge and asking the parties to enter appearance before the learned transferee Court on 5th January, 1973, it was not directed by the learned District Judge that the appeal shall be heard on the said date. According to learned counsel for the appellants, it was doubtful if the learned District Judge could even pass an order in this regard because after he had parted with the appeal it was for the learned Additional District Judge to deal with it in such manner as he (Additional District Judge) deemed fit. Plea of learned counsel for the appellants was that since there was no order by the District Judge that the appeal would be heard on 5th January, 1973, it could not be dismissed in default on that date. He cited Sh. Ghulam Mujtaba and others v.
Noor Muhammad Khan PLD 1964 Baghdad-ul-Jadid 8, Mst. Ghulam Sakina and 6 others v. Karim Bakhsh and 7 others PLD 1970 Lahore 412, Rahim. Bakhsh and another v. Gul Muhammad and 2 others PLD 1971 Lahore 746, Syed Nazir Hussain Shah v. Allah Ditta 1973 SCMR 103 and Abdul Sattar v.
Muhammad Akbar Shah PLD 1990 SC 285 to support his contention. Besides, he relied on rules 17 and 19 of Order XLI of the Civil Procedure Code which make a clear mention of the word "hearing".
Rule 17 relates to dismissal of an appeal for want of prosecution and rule 19 contains provisions rclating to re-admission of the appeal so dismissed.
5. On the other hand, it was submitted by Mr. Muhammad Zafar Chaudhry, Advocate, learned counsel for one of the legal representatives of the respondent namely, Miss Surrayya Sultana Butt, hereinafter referred to as the respondent, that the appeal had been transferred by the learned District Judge under subsection (2) of section 24-A of the Code of Civil Procedure and since the learned District Judge had fixed the date for appearance of the parties before the learned Additional District Judge, no notice was required to be issued to the parties for the said date.
Argument proceeds that since the appeal was thus complete for hearing by the learned Additional District Judge on the date on which it was dismissed in default, the said date was for hearing of the appeal and, therefore, order of the learned Additional District Judge dismissing the appeal was unexceptionable. He relied on Manager, Jammu & Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 to support. His argument.
6. A careful study of the case of Manager, Jammu & Kashmir State Property in Pakistan, relied upon by learned counsel for the respondent, would reveal that its facts were different from those of the case in hand. In the said case, order of dismissal of the appeal in default was set aside for two reasons, namely, that the learned Additional District Judge who dismissed the appeal did not care to ascertain that service had been effected on the respondent for the date on which the appeal had been dismissed by hi and that he was labouring under a misconception that he was obliged to dismiss the appeal in default and had no discretion to adjourn it. This, however, is not the position in the case in hand. It is also noteworthy that while stating the said two grounds, the Supreme Court observed as follows. "the expression 'called on for hearing' as used in order XLI, rule 17 obviously presumes the completion of all earlier steps envisaged by rules 11 to 16 of Order XLI. Unlike the suit there would be no question of filing the written statement or of recording of evidence and therefore, an effective hearing would be one on which arguments were to be heard".
Thus, it was held by the Supreme Court that in case of an appeal the date of hearing is the one on which arguments are to be heard. As indicated above, in the case before me, neither the learned District Judge nor the learned Additional District Judge had fixed 5th January, 1973 as the date for hearing of arguments and, therefore, even according to dictum in the case of Manager, Jammu & Kashmir State Property in Pakistan relied by learned counsel for the respondent, the said date was not the date of hearing.
7. It has been laid down in rule 17 of Order XLI of the Code of Civil Procedure that where on the date fixed for hearing an appeal the appellant does not appear, when the appeal is called on for hearing, the Court may make' an order that the appeal be dismissed and in rule 19 thereof it has been provided that where an appeal is dismissed, the appellant may apply to the Appellate Court for re-admission of the appeal; and where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing, the Court shall re-admit the appeal. It is , therefore, evident from the said provisions of law that an appeal can be dismissed in default, on the date fixed for its hearing. Similar view has been expressed in the cases of Sh.
Ghulam Mujtaba. And others, Mst. Ghularn Sakina and 6 others, Rahim Bakhsh and another, Syed Nazir Hussain Shah and Abdul Sattar cited by the learned counsel for the appellants. Even from the case of Manager, Jammu & Kashmir State Property in Pakistan, cited by learned counsel for the respondent, it can be clearly gathered that when an appeal is called on for hearing it is discretionary with the appellate Court to dismiss it in default or 1B adjourn it to another date. This means that it was not ruled in the case of Manager, Jammu & Kashmir State Property in Pakistan that the appeal can be dismissed in default on a date other than the date fixed for its hearing.
Since in the case in hand the appeal was not fixed for hearing for 5th January 1973, it could not be dismissed in default. In this view of the matter, order of the learned Additional District Judge dismissing appeal for want of prosecution is without jurisdiction.
8. Since in the instant case order by which the learned Additional, District Judge had dismissed the appeal of the appellants was without jurisdiction, void ab initio and a nullity in the eye of law, he should have ignored the said order and restored the appeal when the appellants had prayed for its restoration by making application in this regard. By rejecting their application he committed an illegality and as such the order by which he rejected their application is not sustainable.
9. In result, I accept this appeal, set aside the order assailed herein and restore the appeal of the appellants which had been dismissed by the learned Additional District Judge. The parties are, however, left to bear their own costs.
10. Since the learned Additional District Judge, who had passed the impugned order is nolonger in service and the parties before me desire that the appeal may now be heard by the District Judge, Gujranwala, himself, I send the appeal to the said learned District Judge. Needless to say that he shall hear arguments in the appeal and then decide it in accordance with law..
11. Since it is an old matter, the learned District Judge shall endeavour to decide the appeal as aforesaid, within two months of the appearance of the parties before him.
12. The records shall be returned to him immediately.