' SARDAR SAID MUHAMMAD KHAN, C.J.---As the above-entitled appeals arise out of the single order of the High Court, we propose to dispose of the same by this single judgment.
2. The brief facts of the case are that two applications were submitted by the appellants herein, before the District Judge, Muzaffarabad, under section 7 of the Azad Jammu and Kashmir Auqaf Act, 1960. The same were accepted and the respondents, herein, went up in appeals to the High Court. During the pendency of the appeals, Muhammad Yaqub, one of the respondents, who was predecessor-in-interest of appellants Nos.1 to 6, died and two applications for bringing his legal representatives on record were filed which were accepted and it was directed by the High Court vide its order, dated 22-5-1997 to deposit the process fee within a week; the appeals were adjourned for further proceedings to 4-9-1997 when it was found that the respondents, herein, did not comply with the order of the Court. Hence the appeals were dismissed under Order XLI, rule 18, C.P.C. Thereafter, two separate applications were filed by the respondents, herein, for readmitting the appeals for regular hearing. It was contended by the Auqaf Department, respondent, that its representative had to do the needful but he did not deposit the process fee. Thus, it was contended that the process fee could not be deposited under the impression that the same might have been deposited by the representative of the department. Syed Munawar Shah and others, respondents, have averred in their application for the restoration of their appeal that they could not do the needful because the impugned order was not brought to their knowledge. The High Court, after hearing the parties, readmitted the appeals observing that the policy of law is to dispose of the cases on merits rather than on technical grounds. The High Court has observed that the appeals filed by the respondents, herein, were dismissed in presence of the counsel for the respondents and repelled their contention that the orders of dismissal of their appeals for failure to deposit the process fee were not sustainable due to the absence of their knowledge. However, the High Court restored the appeals observing that the policy of law is that the suits and appeals etc. Should be decided on merits rather than on technical grounds.
3. We have heard the arguments advanced by the learned counsel for the parties. It has been argued on behalf of the appellants that under rule 19 of Order XLI, C.P.C., the appeals could be reamitted for regular hearing only if a sufficient cause would have been shown for failure to comply with the orders of the Court. But the High Court readmitted the appeals, despite rejecting the stand of the respondents with, regard to sufficient cause for, the non-compliance of its orders. Thus, it has been contended that the orders of readmission of the appeals passed by the High Court are not sustainable. It has been vehemently argued that if a procedure is governed by the statutory provisions or rules, an order cannot be passed under inherent powers of the Court disregarding the procedure laid down by law. The learned counsel for the appellants have cited following authorities in support of their contentions:- ' In case reported as Chairman, Azad Jammu and Kashmir Council v. Abdul Latif (1997 MLD 2926), the question of delay in filing the appeal was subject of controversy. While dealing with the point it was observed that as the appeal was time-barred by 136 days, the same could not be condoned because the appellant was not informed about the judgment by his counsel. It was observed that the knowledge of counsel would be deemed to be the knowledge of the client and, thus, this was not a sufficient cause for condoning the delay.
' In case reported as U Aung Gyi v. Government of Burma (AIR 1940 Rangoon 162), while dealing with the restoration of suit dismissed in default, it was observed that inherent powers vested in the Court under section 151, C.P.C., cannot be pressed into service in view of the provisions contained in rule 9 of Order IX of the C.P.C. Thus, it was observed that as no sufficient cause was established the Court had no jurisdiction to restore the suit in exercise of its inherent powers merely by observing that it was a just and reasonable to restore the suit.
' In an unreported case entitled Abdul Haad v. Custodian of Evacuee Property (Civil Appeal No.75 of 1995, decided on 10-2-1996), the appellant was directed to deposit process fee within a week for issuing notice to the respondents. Subsequently, extension was sought for doing the needful. It was observed that time could not be extended for doing an act as a matter of routine; there must be some reasonable cause for that which is also supported by some tangible evidence. Thus, it was observed that the order passed by the High Court did not call for interference.
4. The learned counsel for the respondents have vehemently controverted the arguments advanced on behalf of the appellants. It has been argued that the respondents were not informed by their counsel to deposit the process fee and, thus, they could not be penalised for the negligence of their counsel. It has been further argued that the law does not favour the dismissal of a cause on technical grounds rather the policy of law is to decide the matters on merits. It was also contended on behalf of the respondents that the High Court was fully competent to readmit the appeals in exercise of its inherent powers. The learned counsels for the respondents have also submitted that the date on which the appeals were dismissed for failure. To deposit the costs was not a date of hearing and, thus, the orders of dismissal of the appeals were even otherwise against law. In alternative, they have argued that the High Court has committed an error in observing that the share of Muhammad Yaqub in the suit land was not ascertainable and, thus, instead of dismissing the appeals to the extent of his share, the same were dismissed in toto. The learned counsel have argued that according to the case of Muhammad Yaqub, Muhammad Abdullah and Alif Din sons of Sain Mira, the property in dispute was inherited by them from their father who, in turn, had inherited the same from his father, Sain Kaka. The learned counsel have argued that there is ample authorities in support of the proposition that under Muhammadan Law a suit or appeal cannot be dismissed on the ground that the share of concerned Muslim-heir is not ascertainable because the same stands fixed under Muslim Law. The learned counsel have cited following authorities in support of their contention:-- ' In case reported as Chand v. Abdul Ghaffar (PLD 1965 Lah. 596), it was observed that the provisions contained in rule 4 of Order XXII of C.P.C. Being penal provisions are not applicable to the proceedings in writ petition on the strength of section 141 of C.P.C. It was further observed that only those provisions of the C.P.C. Would apply which relate to the trial of writ petitions and are not penal in nature.
' In case reported as Hedayatullah v. Ghulam Sarwar (1993 CLC 1524), the appeal was dismissed under rule 18 of Order XLI, C.P.C., for non-depositing the proclamation fee. It was found that sufficient money was given to the Clerk of the Advocate to do the needful but he misappropriated the same and did not deposit the proclamation fee. It was observed that in view of the fact that the remission of the court-fee in the suit to the valuation of Rs,25,000 was made, the default in depositing the process fee to the tune of rupees one or two in the case was immaterial. Thus, adverse order against the appellant was set aside.
' In case reported as WAPDA v. Abaidur Rehman (1983 CLC 1066), the appeal was dismissed by the Additional District Judge for non-depositing of process fee. It was observed that the petitioner had deposited the process fee in three previous occasions and the circumstances in which the default committed was due to the misapprehension of the concerned party. Thus, it was held that there was sufficient cause tor readmission of the appeal and disposal of the same on merits.
' In case reported as Shahab Din v. Ahmed Yar (1986 CLC 2112), some of the respondents were served while in relation to some others the appellant was directed to deposit the proclamation fee.
It was observed that the said respondents who were not served were pro forma respondents and they were to be benefited in the event of setting aside the impugned decree in appeal. Thus, it was observed that the order of dismissal of appeal in toto was not justified in view of the said facts.
' In case reported as Nawab Bibi v. Mst. Mehraj Begum (PLD 1975 Lah.1167), it has been observed that in some cases, the dismissal of appeal in tow under rule 18, Order XLI, C.P.C., is not avoidable because in such cases the appeals do not remain properly constituted due to the absence of necessary party, while in other cases partial dismissal of the appeal is possible. It was observed that as the respondents against whom the appeal was to be dismissed under rule 18, Order XLI, C.P.C., were pro forma-respondents and dismissal against them would not warrant dismissed of appeal against other respondents, the appeal should not have been dismissed as a whole.
' In an unreported case of this Court entitled Sardar Nazir Ahmad Khan v. Muhammad Shaukat Khan (Civil Appeal No.99 of 1998, decided on 12-8-1998), the question as to whether the appeal would abate in toto or partially due to non-impleadment of the legal representatives was under consideration. After dealing with the case-law, it was observed that as the share of the deceased party was ascertainable, the appeal would not fail in toto but only partially. It was observed that in cases of inheritance by Muslim heirs, their shares are ascertainable and, thus, the suit or appeal would only abate to the extent of such share and not as a whole.
5. We have given due consideration to the arguments raised at the Bar. The perusal of the impugned orders of readmission of the appeals shows that the High .Court did not accept the plea of the respondents with regard to the existence of sufficient cause; rather the appeals were readmitted under inherent powers of the High Court. As has been seen from some of the authorities cited above that the procedure laid down by the relevant law, cannot be departed from by resorting to inherent powers in the instant case, the respondents failed to establish any sufficient cause for the restoration of appeals and, thus the High Court was not competent to resort to its inherent powers by observing that the policy of law is to decide the matter on merits rather than on technical grounds.
6. The contention of the learned counsel for the respondents that the appeals could not be dismissed for failure to deposit the costs because the date on which the orders of dismissal of appeal were passed was not a date of hearing is not sustainable because perusal of rule 18 of Order XLI, C.P.C., would reveal that the dismissal on a date which is not fixed for hearing is permissible under law. For convenience, rule 18 of Order 41 is I e reproduced as under:- "Where on the day fixed, or on any other day to which the hearing may be adjourned, it is found that the notice to the respondent has not been served in consequence of the failure of the appellant to deposit, within the period fixed, the sum required to defray the cost of serving the notice, the Court may make an order that the appeal be dismissed: ' Provided that no such order shall be made although the notice has not been served upon the respondents, if on any such day the respondent appears when the appeal is called on for hearing."
(Underlining is ours).
It is evident from the abovementioned provisions that the expression 'Where on the day fixed, or on any other day to which the hearing may be adjourned....' Clearly shows that the dismissal of an appeal for failure to deposit process fee is permissible even on a date which is not fixed for hearing.
Thus, the contention of the learned counsel for the respondents that the orders of the High Court in readmitting the appeals were justified on that score is not tenable especially so when the appeals were not readmitted on the said ground. The contention on behalf of the appellants that as the powers of hearing appeals to the High Court have been vested under section 8 of the Azad Jammu and Kashmir Waqf Properties Act, 1960 (hereinafter shall be called the Waqf Act), the provisions of C.P.C. Or for that matter the dismissal under rule 18 of Order XLI, C.P.C., is not permissible in law is also not tenable. The authority reported as Chand v. Abdul Ghaffar (PLD 1965 Lah. 596) and relied.Upon by the learned counsel for the respondents, referred to above, pertains to writ jurisdiction and is, thus, distinguishable.
7. The next contention of the learned counsel for the respondents is that as the share of Muhammad Yaqub is ascertainable, the appeals could not be dismissed as a whole. As is evident from the authorities cited above, particularly the case reported as Nawab Bibi v. Mst. Mehraj Begum (PLD 1975 Lah. 1167), the dismissal of appeals under rule 18 of Order XLI, C.P.C. As a whole is not legally justified if an appeal remains properly constituted without the presence of a party or for that matter the share of such party is ascertainable. In the _instant case it transpires from the judgment of the Additional District Judge, dated 13-11-1996 that Haji Muhammad Yaqub, Muhammad Abdullah and Alif Din sons of Mira claimed ownership of the property in dispute contending that this was their ancestral property which was first inherited by their great grandfather, thereafter, by their grandfather and after his death by their father, Sain Mira. Their claim was upheld by the Additional District Judge declaring them as the owners of the land in dispute. Obviously, the share of each of the three brothers in the property in dispute is 1/3rd under Muslim Law. Therefore, it cannot be said that as a result of non-impleadment of legal heirs of Muhammad Yaqub due to failure to deposit the costs, the appeals before the High Court would be incompetent as a whole. As is evident from the authorities cited above, in case of Muslim heir, their shares are specified under Muslim law and, thus, the appeals would not be rendered incompetent because one of the co-sharers or his heirs could not be impleaded. A reference may be made to an unreported case of this Court entitled Sardar Nazir Ahmad Khan v. Muhammad Shaukat Khan (Civil Appeal No. 99 of 1998 decided on 12-8-1998), wherein it was observed as under:-- "Thus, the share of Mst. Chohara Bi is ascertainable and the appeal filed by Muhammad Shaukat, respondent, would abate only to the extent of her share and not in toto as is evident from the authorities cited by the learned counsel, for the respondent. We are of the opinion that the abatement of a suit or appeal in case of non-impleadment of a legal representative in toto would only occur if it is not possible to adjudicate upon the dispute in absence of such a legal representative for one reason or the other. The argument that if in case of non-impleadment of legal representatives of deceased party, the appeal or suit is not held to have abated in toto, contradictory decrees are likely to come into existence is not tenable, because there is no provision in the Code of Civil Procedure to the effect that in case of non-impleadment of the legal representatives, the suit or appeal should be declared to have been abated in toto so as to avoid the contradictory judgments and decrees. It may be observed that contradictory judgments and decrees do come into existence in many eventualities, as has been held in cases reported as Wali v. Manak Ali (PLD 1965 SC 651), Fazal Dad v. Nek Alam (PLD 1957 Lah. 430) and Allah Rakha v. Nawab (PLD 1967 Lah. 613), referred to above. Thus, the appeal filed by Muhammad Shaukat in the High Court would be deemed to have abated only to the extent of 1/4th share of Mst. Chohara Bi and not in toto."
It is evident from what has been stated above that the dismissal of appeals by the High Court in toto for failure to deposit the costs for issuing process to the legal representatives of Muhammad Yaqub was not legally justified.
' In light of what has been stated above, we partly accept both the above-entitled appeals in terms that the impugned orders of the High Court, whereby the appeals filed by the respondents were readmitted would be valid except the share or interest of Muhammad Yaqub, deceased, so far as he is concerned, the appeals against him filed in the High Court would stand dismissed.