' NAZIM HUSSAIN SIDDIQUI, J.---The petitioner, M/s. Continental Foods (Pvt) Ltd, has impugned the order dated 28-3-2001 of a learned Judge in Chamber, Lahore High Court, Rawalpindi Bench, whereby F.A.O. No,23 of 2001 was dismissed in limine.
2. The relevant facts for decision of this petition are that respondent, Aitzaz Ahmed Khan, on 8-5- 1999 instituted the Suit No,97 of 1999 against the petitioner before Senior Civil Judge, Islamabad for possession through ejectment and recovery of Rs,28,66,600 with the averments that he was the owner of Property No,3-C Industrial Area 1-10/3, Islamabad, hereinafter referred to "the premises" and the petitioner was tenant therein since 15-12-1994 at a monthly rent of Rs,60,000, which was to be increased automatically at the rate of 10% after every two years. It is alleged that the petitioner in contravention of the terms of rent agreement, installed huge industrial machinery and started using it for preparing food items (Bakery) without seeking such permission ffom the respondent and this act of the petitioner also violated the bye-laws of CDA, who had issued such notice to the petitioner. It was also averred in the plaint that the petitioner damaged the premises, caused a huge financial loss to the respondent and failed to pay agreed rent from 15-12-1998. The respondent also claimed that he required the premises for his personal bona fide need and accordingly served the notices for this purpose upon the petitioner.
3. The petitioner was served and Mr. Abdul Hafeez Amjad, Advocate filed his wakalatnama/power on its behalf on 29-5-1999. Thereafter, nobody appeared before trial Court on behalf of the petitioner: The matter was ordered to proceed ex parte, as per order dated 9-3-1999. Learned trial Court recorded ex parte evidence and decreed the suit, vide judgment and decree dated 1-3-2000.
4. The petitioner filed a time-barred application under Order IX, rule 13 read with section 151, C.P.C.
For setting aside the ex parte decree and learned trial Court rejected said application on 23-12- 2000. Above order was challenged before High Court, and was upheld.
5. Learned High Court after hearing learned counsel for the petitioner and having examined in detail all the pleas raised on its behalf, reached the following conclusion:- ' "I have given my careful consideration to the entire facts brought on the record. In my opinion the appellant has failed to give any sufficient or even cogent reason for his absence from the trial Court subsequent to 29-5-1999 till 1-3-2000 when ex parte decree was passed against him and thereafter till 2-11-2000 when a time-barred application was moved for setting aside the ex parte decree. The lame excuse of oral agreement to sell entered into between the parties in September, 1998 cannot be considered as a sufficient ground for continuous absence from trial Court for such a long period. The appellant tendered appearance in Court through his counsel on 29-5-1999 and moved an application for setting aside the ex parte decree on 2-11-2000, thus he remained absent from Court for more than 1-1/2 years and nothing has been stated for such a long absence."
6. Learned counsel for the respondent on 10-4-2001 stated that the decree passed against the petitioner was already executed and possession of the premises was taken over from the petitioner. The authenticity of above statement was not challenged by learned counsel for the petitioner.
7. Mr. S. Naeem Bukhari, learned counsel for the petitioner has raised two contentions. Firstly, he argued that the matter was to be heard by a Division Bench and not by a learned Single Judge. In reply, learned counsel for respondent submitted that when appeal before High Court was preferred by petitioner against the judgment/order of trial Court, the office raised various objections, including payment of court-fees and sought "proper classification of the case." He explained that the petitioner did not pay the court-fees and maintained that it was F.A.O. (First Appeal against Order) and as per High Court Rules Volume V, Chapter 3(b), Rule 1 (iii), the matter was to be heard by a Single Judge, which is as follows:- ' "an appeal from an order under the Code of Civil Procedure and from an order passed in the execution of a decree."
8. It is clear that the petitioner itself before High Court pleaded and treated the impugned order of trial Court as an appeal from an order under C.P.C. And now it cannot argue that it ought to have been placed before a Division Bench, as Regular First Appeal. The contention is devoid of any force.
9. Secondly, learned counsel for the petitioner argued that, it being first appeal, it could not be dismissed in limine. Precisely stated the contention is that dismissal of the petitioners appeal in limine was in violation of law laid down by this Court in the cases reported as (1) Abid Hussain v.
Mst. Afsar Jehan Begum and another (PLD 1973 SC 1) (2) Soofi Dilawar Hussain Chishti v.
Muhammad Afzal (1988 SCM R 43) and Begum Humayun Zulfiqar Isma il and another v. Begum Hamida Saddat Ali (1968 SCM R 828).
' In the case of Abid Hussain it was held that consistent practice of both Lahore High Court and Sindh High Court was that Regular First Appeal was not to be dismissed in limine.
' In the case of Soofi Dilawar Hussain Chishti, the rule, laid down in the case of Abid Hussain, was followed.
' The dictum laid down in Begum Humayun Zulfiqar Ismail's case is that generally in appeal from an original decree, the appeal is both on facts and law, but in an appeal from an appellate decree or order the appeal is on ground of law only. Further, it was observed that dismissal under Order XLI, rule 11, C.P.C. Of first appeal is not the general rule, and if the facts are not simple or undisputed a first appeal is not generally dismissed in limine .
10. Suffice it to say that above referred cases are distinguishable and not attracted to the case in hand, as in the above reported cases the dictum laid down relates to Regular First Appeal and not to an appeal from an order under C.P.C. In consequence, leave to appeal is refused and the petition is dismissed alongwith the stay application.