P L D 2022 Balochistan 43
Before Abdul Hameed Baloch, J
MUHAMMAD SARFARAZ ---Petitioner
Versus
NAJEEBULLAH and another ---Respondents
Civil Revision No. 309 of 2020, decided on 25th August, 2021.
(a) Civil Procedure Code (V of 1908) ---
----O. XVII, R. 3 & O. XLI, Rr. 11 & 17--- Divergent suits for declaration, cancellation of
mutation entries and permanent injunction---Petitioner's suit was dismissed while respondent's
suit was decreed vide consolidated judgement/decree---Petitioner's app eal was dismissed by
appellate Court under O. XVII, R. 3 of Civil Procedure Code, 1908---Validity ---Order XVII,
R. 3 of Civil Procedure Code, 1908, was applicable to proceedings of suit not in appeal ---
Word "suit" was used in the said provision---Appeal co uld be dismissed in default only when
it was called on for hearing and appellant was absent, meaning thereby, an appeal could be dismissed in default only on the date fixed for its hearing---Appellate Court was not authorised to dismiss the appeal in defau lt on the date which was not date of hearing---
Record revealed that the date fixed by the appellate Court was not date of hearing---Order -
sheets revealed that the notice had not been served upon the appellant ---Notices were issued
but the same were received unserved---Appellate Court issued notices for appearance but on said date dismissed the appeal under O. XVII, R. 3 of Civil Procedure Code, 1908---Order passed by the appellate Court was not in accordance with the law ---Right of parties could not
be defeated merely upon technicalities ---Revision petition was accepted and case was
remanded to appellate Court.
Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar PLD 1975
SC 678 rel.
(b) Civil Procedure Code (V of 1908) ---
----O. XLI, R. 14(2) ---Notices by Appellate Court, service of ---Presumption--- Scope ---
Appellate Court might itself cause notice to be served on respondent/his pleader ---
Presumption of service upon respondent could not be drawn on the basis of endorsement by the process server that "respondent had refused to receive summons".
(c) Civil Procedure Code (V of 1908) ---
----O. XVII, Rr. 2, 3 & XLI, R. 17---Order XVII, Rr. 2 & 3 of Civil Procedure Code, 1908
are applicable in proceeding with suit while O. XLI, R. 17 thereof was to apply in case of
appeal.
Nowsheri Khan v. Said Ahmed Shah 1983 SCMR 1092 rel.
(d) Administra tion of justice ---
----Technicalities ---Order without notice to parties ---Principle ---Rule of justice demand that
parties could not be non- suited on technicalities when their valuable rights were
involved/subjudiced.
Khusi Muhammad's case PLD 1967 Lah. 151 and Anwar Khan v. Fazal Manan 2010
SCMR 973 rel.
Abdul Zahir Kakar for Petitioner.
Shahid Javed for Respondent No.2.
Date of hearing: 20th August, 2021.
JUDGMENT
ABDUL HAMEED BALOCH, J .---Through this petition the petitioner prayed as
under:
"It is accordingly respectfully prayed that this Hon'ble Court may kindly be pleased to
set aside the order and decree dated 22.07.2020 passed by learned Additional District Judge VII Quetta and remand the case to the learned appellate court for disposal on merits, in the supreme interest of justice equity and .fairplay."
2. Brief facts of the case are that the petitioner/plaintiff filed a suit for "Declaration,
Cancellation of mutation entries and permanent injunction" before the Civil Judge -III, Quetta
(trial Court); that the respondent No.2 prior to the suit of petitioner already filed a suit bearing No.112 of 2012; that the respondent No.2 filed written statement and contested the suit filed by the petitioner and similarly the petitioner filed written statement and contested the suit filed by the respondent No.2, whereas rest of the defendants were proceeded against ex parte. The trial court out of the pleadings of the parties framed the issues and after having the evidence produced by the parties, dism issed the suit filed by the petitioner whereas
decreed the suit filed by the respondent No.2 vide consolidated judgment and decree dated 09.12.2016. Being aggrieved the plaintiff filed a Regular First Appeal before this court, however due to amendment in t he law, said appeal was transmitted to the Court of District
Judge, Quetta for decision, who entrusted the same to the Additional District Judge -VII,
Quetta (appellate Court) for decision. The appellate court vide order dated 22.07.2020 (impugned order) di smissed the appeal under Order XVII, Rule 3, C.P.C. Hence this petition.
3. Heard. Perused the record. The record transpires that the petitioner being aggrieved of
the consolidated judgment and decree dated 09.12.2016, passed by the trial court, filed
Regu lar First Appeal before this court, however due to amendment in Section 18 of the West
Pakistan Civil Court Ordinance, whereby the pecuniary jurisdiction of the District Court was
enhanced, the RFA was transmitted to the court of District Judge, Quetta, wh o entrusted the
same to the appellate Court. The appellate court vide impugned order dismissed the appeal under Order XVII, Rule 3, C.P.C. Relevant portion of the order reads as under:
"Record reveals that instant appeal was received by this Court on 9.12.2019 and since the(-) time neither the appellant nor the ( -) his counsel appeared before the court in
order to pursue his matter. This attitude on the part of the appellant or his counsel shows their lack of interest in the instant matter and their contin uous failure for not
prosecuting case is causing hurdle for the Court, hence, this may safely deduced ( -) to
dismissed ( -) the suit on the ground of non- prosecution, same is hereby dismissed
under Order XVII, Rule 3, C.P.C. Decree sheet be drawn. Copy of t his order along
with record be sent to the trial Court."
4. Since the appellate court while exercising power under Order XVII, Rule 3, C.P.C.
dismissed the appeal, therefore it would be appropriate to reproduce Order XVII, Rule 3, C.P.C. as under:
3. Wher e any party to a suit to whom time has been granted fails to produce his
evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwi thstanding each default, proceed to decide the suit forthwith.
5. Under above referred provision the court is empowered to decide the suit forthwith if
the party despite direction failed to adduce the evidence. The court invoke the afore -referred
provision when the party of a suit despite granting time failed to produce evidence, The
Order XVII, Rule 3, C.P.C. is applicable in proceedings of suit not in appeal. The word "Suit" used in the referred provision. Under Order XVII, Rule 3 of C.P.C., where any par ty
to a suit to whom time has been granted on his request/instance fails to produce his evidence or to perform any other act necessary to the further progress of the suit, for which, time has been allowed, the Court may notwithstanding such default, procee d to decide the suit
forthwith.
6. The record reveals that the appeal was subjudice before the appellate court. The Order
XLI, C.P.C. governed procedure for filing and disposal of appeal. The appeal is a right to approach higher forum and invoking its aid to redress the error of the court below. Under Order XLI, Rule 11, C.P.C. the appellate court is empower to dismiss the appeal without sending notice. It would be appropriate to reproduce Order XLI, Rule 11, C.P.C. as under:
11. - (1) The Appellate Court , after sending for the record if it thinks fit so to do, and
after fixing a day for hearing the appellant or his pleader and hearing 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. (2) If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an o rder that the appeal be dismissed. (3) The
dismissal of an appeal under this rule shall be notified to the Court from whose decree
the appeal is preferred.
7. Under Rule 12 of Order XLI, C.P.C., unless the appellate court dismisses the appeal
under rule 11 , C.P.C., it shall fix a day for hearing the appeal. Under Rule 14(2) of Order
XLI, C.P.C., the Appellate Court may itself cause the notice to be served on the respondent
or his pleader. Presumption of service upon respondent cannot be drawn on the basis of endorsement by the process server that the respondent has refused to receive summons. After service of notice/summons the proceedings on hearing will begin. Under Order XLI, Rule 16 relates to procedure on hearing of appeal under Order XLI, Rule 17, C.P.C. on failure of appellant or counsel when appeal is called on hearing the court may dismiss the appeal. The
referred Order reads as under:
17. - (1) Where on the day fixed, or on any other day to which the hearing may be
adjourned, the appellant does not appear when the appeal is called on for hearing the
Court may make an order that the appeal be dismissed. (2) Where the appellant
appears and the respondent does not appear, the appeal shall be heard ex parte.
8. It appears from the aforementioned rule th at the appeal can be dismissed in default
only when it is called on for hearing and the appellant is absent, meaning thereby an appeal can be dismissed in default only on the date fixed for its hearing. Under the aforementioned rule the appellate court is not authorized to dismiss the appeal in default on a date which is not date of hearing. The expression called on for hearing as mentioned under Order XLI, Rule 17, C.P.C. obviously the completion of all earlier steps as envisaged by rules 11 to 16 of Order XLI, C.P.C. The record reveals that the date fixed by the appellate court was not
date of hearing. In this regard I am fortified from the dictum laid down on the case of Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar PLD 1975 SC 678,
whereby it has been held as under:
"As would appear from the foregoing discussion, all these authorities dealt with cases of dismissal of suits. 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. This obviou sly presupposes the service of
the parties and therefore, the Court was under an obligation to ascertain in the first instance that the respondent had been served. It is evident that the appeal had been received by the Additional District Judge on transfer from the District Judge on 10-
12-1970 and was straightaway fixed for arguments for 11- 1-1971 with notice to the
parties. Rule 12 of Order XLI clearly envisages the essentiality of the service of the respondent. Of course, the appeal could be dismissed for the non- appearance of the
appellant on two earlier stages: Firstly, it can be dismissed in limine if the Court is not satisfied that a prima facie case is made out and in that event neither the record may be sent for, nor a notice may be issued to the res pondent. That is the stage
envisaged by rule 11. If, therefore, on a day fixed under this rule the appellant does not appear the Court may make an order that the appeal be dismissed. Dismissal at this stage is also discretionary and furthermore the order of dismissal is appealable. It cannot be disputed that in the case before us the order of dismissal was not made
under this provision. Straightaway on receipt of the file the Additional District Judge
sent for the record, issued notices to the parties and f ixed the case for arguments.
Once the appeal crosses the hurdle of preliminary hearing under rule 11, then under rules 14 and 15 of Order XLI the appeal cannot be heard and decided without the service of the respondent or his counsel. The mandatory provisi on contained in rules
14 and 15 makes the position absolutely clear that the notice issued to the respondent
shall be delivered and in the event of his non- appearance, the appeal will be heard ex
parte. Rule 16 envisages the presence of the parties and if having heard the appellant
in support of his appeal the Court finds that no case is made out it may even dismiss
the appeal without calling upon the respondent to reply. Rule 16, therefore, clearly proceeds on the presumption of the presence of the parties . If however, the appellant
does not appear at this stage the Court may make an order of dismissal in default. Here too a discretionary power has been conferred on the Court and it is under no obligation to dismiss the appeal. On the other hand the view ta ken by the High Court
in the impugned order proceeds on the assumption as if no discretion or option vested in the Additional District Judge not to dismiss the appeal which he was under an obligation to dismiss. The conclusions we have reached, therefore, are: Firstly that it was the duty of the Additional District Judge to ascertain that the respondent had been duly served and this he did not discharge and, therefore, the case could not be called for hearing on that date, Secondly, that be had acted rather mechanically without
being aware of his discretionary power not to dismiss the appeal and therefore, the order of dismissal having been made in ignorance of jurisdiction was void and a nullity."
9. On dismissal of appeal under Order XLI, Rules 11 and 17, C.P.C. the same court
under Rule 19, C.P.C. is empowered to set -aside the order of dismissal of appeal. The Order
XVII, Rules 2 and 3, C.P.C. are applicable in proceeding with suit while Order XLI, Rule 17, C.P.C. is applied in case of appeal. Reliance is placed on the case of Nowsheri Khan v. Said
Ahmed Shah 1983 SCMR 1092, whereby it has been observed as under:
"The language of this rule shown that it deals with suits and is not in terms applicable to appeals. In case of the failure of a party to appear on a date fixed, the procedure applicable under Order XVII, Rule 2, C.P.C. which is provided under Order IX, C.P.C., applies to suits. The dismissal and restoration of the appeals, however, are dealt with in Order XVII of the C.P.C. cannot normally be made applicable to
proceedings under Order XLI of the C.P.C."
9. It appears from the order -sheets that the notice has not been served upon the
appellant. On 10.03.2020 the counsel for appellant/ petitioner was present. The next date i.e. 17.03.2020 was fixed f or arguments, whereafter the case was adjourned on different date due
to pandemic and in those dates none of the party were present. On 17.06.2020 the notices were issued and the case was next fixed for 08.07.2020, but the notices were received unserved. O n 22.07.2020 the appellate court issued notices for appearance but on said date
dismissed the appeal under Order XVII, Rule 3, C.P.C. The record transpires that no notice served upon appellant, meaning thereby the case was not fixed for hearing, in such circumstances the order passed by the appellant court is not in accordance with the law. It is
settled principle of law the rights of the parties cannot be defeated merely upon
technicalities. The basic purpose and object of the court to do substantial justi ce between the
parties, technicalities are to be overlooked unless the same offer insurmountable hurdle. In
Khusi Muhammad's case PLD 1967 Lah. 151, it was held that "learned judge passed the order without notice to the parties. The order is clearly coram -non-judice hence, nullity." The
rule of justice demand the parties could not be non- suited on technicalities when their
valuable rights are involved/subjudice. Reliance is placed on the case of Anwar Khan v.
Fazal Manan 2010 SCMR 973, whereby it has been h eld as under:
"4. We have given our anxious consideration to the contentions of learned counsel for
the parties and perused the record. It is well -settled principle that the most important
duty of the courts of law is to do justice between the parties and in the absence of any
express power, normally on technical grounds, they should not hesitate to give proper relief. It must also be mentioned that civil courts are courts of both law and equity and in the absence of special reasons they should also be inc lined to do substantial
justice and matters of controversy should also be disposed of on merits and not on technical consideration. This is always more important in cases where there is apprehension that the party concerned shall be seriously prejudiced if the application
or suit is not restored. It is also a settled proposition of law that the principal object of legal formalities and procedural provisions is to safeguard the interest of justice and the procedural provisions unless insurmountable should not be allowed to defeat the ends of justice. In the case in hand, the petitioner seems to be sufficiently vigilant and was making inquiries about the proceedings from all the relevant quarters as evident from the contents of the application. His non -appearance has also been explained.
According to the contents of the application, misunderstanding was created due to the fact that file had been misplaced, as informed by the official of the Court. The duty of the court is to do justice between the parties. The procedure prescribed is always ,for
the purpose of doing justice between them and should not come in the way of doing substantial justice. It is pertinent to mention here that to make a mistake about the date is not lapse of category, which can outrightly be excluded from the scope of bona fide mistake. Such mistake occurred by mis -apprehension of the party and some time
by unintentional wrong communication by the clerk of the court. In this case, the mistake was bona fide coupled with the fact that this as sertion was duly supported by
the affidavit and the respondent could not be rebutted expressly in the reply of the application which was denied in general terms. If being so, the possibility of noting down a wrong date could not be ruled out. Under the cir cumstances, the courts below
should have exercised discretion in favour of the petitioner on the well -known maxim
that law favours adjudication on merits and this principle is to be followed unless there are practical difficulties which cannot he surmounte d".
In view of above circumstances, the petition is accepted. The order and decree dated
22.07.2020, passed by the Additional District Judge -VII, Quetta is set -aside. The case is
remanded to appellate court with direction to decide the same within two mon ths possibly
without unnecessary adjournment. Parties are directed to appear before appellate court on 10th September, 2021.
ZH/153/Bal. Case remandeThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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