1. WAJIHUDDIN AHMED, J.- This is a long standing dispute, pertaining to the adjoining properties of the appellants and the respondent, the latter being transferred from the Settlement Department. In the suit for removing the encroachment allegedly made by the respondent on the appellants (plaintiffs) plot, the learned Single Judge of the Sind High Court, sitting on the original side and trying the suit, found that the appellants had failed to establish their allegation that the respondent had put-up the fresh dividing wall between the properties on a portion of the land belonging to the appellants. The burden of proof, lying on the appellants was found not. To have been discharged.
2. On appeal, a Division Bench of the High Court, agreeing with the findings, ordered dismissal in limine. Leave was granted here to consider the question whether the High Court Appeal could be dismissed in limine without sending for the record and whether Order XLI, Rule 11(1), C.P.C., reproduced below, was invocable:- "(11) Power to dismiss appeal without sending notice to lower Court. - -(1) The Appellate Court, after sending for th record if it thinks, fit so to do, and after fixing a day for hearing the appellant or his pleader and heading him accordingly if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader."
3. In the High Court itself, when the appeal was being argued and when the prospect of its summary dismissal arose, the learned counsel for the appellants relied upon Ahid Hussain v. Mst. Afsar Jehan Begum (PLD 1973 SC 1) to urge that a High Court or Intra-Court Appeal, being in its very nature a first regular appeal, was not to be dismissed in limine. In such precedent case, adverting to the provisions of rules 1 and 4 in Chapter 3-B, Volume V of the High Court Rules and Orders read with Order XLI, rule 11, C.P.C., it was observed that while entertaining first regular appeals, covered by the cited provisions, a Single Judge of the High Court ought not resort to summary dismissals and either admit the same to regular hearing or make reference to a Division Bench for appropriate orders, if such Single Judge, seized of the appeal, fixed for a motion of admission, considers summary dismissal as a more plausible order. Even so, because the Rules were susceptible also to a different interpretation, this Court, additionally, resorted to a prevailing practice in the High Court to admit such appeals and went on to observe that if such practice was intended to be deviated from, the High Court may consider an amendment in the relevant Rules. The learned Judges of the Division Bench, however, distinguished the cited case on the ground that they were exercising jurisdiction and hearing the appeal under Section 3 of the Law Reforms (Amendment) Act (VIH of 1972). The relevant portion of the said provision is reproduced below:-
(3) Appeals to High Court in certain cases.- (1) An appeal shall lie to a Bench of two or more Judges of the High Court from a decree passed or final order made by a Single Judge of the Court in exercise of its original civil jurisdiction."
4. The learned Judges also referred to London Assurance Co. Ltd. v. Aini Amin Nizami (PLD 1982 Kar.
5. 841) where re: Abid Hussain (ibid) distinguished, observing that the same pertained to a first regular appeal under Order XLI, rule 11, C.P.C, and had no bearing on an appeal before a Division Bench under Section 3 of the Law Reforms (Amendment) Act, 1972. In the matter of London Assurance Co. Ltd., it was also maintained, the learned Judges authoring the impugned judgment endorsing their agreement that, in clear contra-distinction to the ratio in Abid Hussain's case, there was no such practice in the Sind High Court of admitting all High Court appeals against decrees or final orders passed by a Single Judge, sitting on the original side.
6. We tend to agree with the conclusion of the learned Judges. There are no constraints on the powers of a Division Bench such as those construed qua Single Judges hearing regular first appeals governed by rule 1 of Chapter 3-B, Volume V of the High Court Rules and Orders nor is there any restrictive practice. It is also correct that the original side jurisdiction, from which the appeal was occasioned, is peculiar to the High Court of Sind and may not be saddled with all the technicalities under Order XLI of the Code of Civil Procedure, applicable, strict senso, to appeals mandated by Section 96 of the same Code. Even so, the High Court, when exercising jurisdiction under Section 3 of the Law Reforms (Amendment) Act, 1972, should duly apply its mind to the controversy involved and, if and when finding necessary, have the original side record placed before it. Indeed in re: Ahid Hussain itself this Court drew on Humayun Zulfiqar Ismail v. Begum Hamida Saadat All (1968 SCM R 828) where interpreting Order XLI, Rule 11, C.P.C., it was opined that dismissal of a first appeal from an original decree was not a general rule, unless the facts be simple or undisputed. While even these factors, would not control and govern a High Court appeal, of the kind discussed, all factors, necessary for advancement of justice, need to be attended to.
7. These requirements observed, a High Court appeal against an original decree may, if warranted, be dismissed in limine. To be precise, there should be a visible application of mind on the part of the learned Judges constituting a Division Bench in such matters.
8. None of the above, can be construed to be an impediment invocable against the impugned judgment. The only thing amiss in the original and the appellate judgments lies in the possibility that complete justice, in accordance with law, may not have been done. Thus, while it was for the plaintiffs to have established the dimensions of their property and while the plaintiffs could succeed only on the strength of their own case, as distinguished from any weakness in the defence, the material on the record suggest that there may have been a piece and parcel of land, catering to an easement, either belonging to one or the other party or both of them. A case, therefore, seemed to have emerged where, travelling beyond the parameters of burden of proof, the original or the appellate Bench, or both of them, should have embarked upon an inquiry of their own to determine the actual extent of the plaintiffs' land and the easementry attachments, if any, belonging to either or both of the parties. This, therefore, was a fit case for appointment of a licensed architect or engineer to visit the site and demarcate the plaintiffs property, together with appurtenances, if any, with the necessary aid and assistance of the city survey staff but, initially, at the expense of the plaintiffs, because it is they who had approached the Court for relief. For such purpose the High Court appeal is remanded. The needful may be done by the Division Bench within four months of the communication, whereafter, depending upon the emerging circumstances, such Bench may either maintain its earlier findings or come to a different conclusion. This appeal, accordingly, stands allowed in terms, but with no order as to costs.