2002 PLP 559 (YLR)

KHAWAJA MUHAMMAD SAEED, J.

This appeal, with the leave of the Court, is directed against the judgment of the High Court passed on 6-11-2001, whereby the appeal of the appellants was dismissed for non-compliance of the Court order dated 3-10-2001.

2. Admitted facts are that the appellants filed an appeal in the High Court on 25-6-2001 against the judgment and decree of the District Judge, Bhimber dated 27-3-2001. In their' appeal the address of the respondents was given as follows:-- "Residents of Kot Jattan, Tehsil and District Bhimber, A.K. at present residing at Chak No.193, Nehr Murad, Tehsil Hasilpur, District Bahawalpur Pakistan." On 26-6-2001 notices were issued to the respondents showing them the residents of Kot Jattan, Tehsil and District, Bhimber and not on the present address of the respondents as was given by the appellants. The next date was fixed on 2-10-2001 for further orders. On this date no order was passed. However, on 3-10-2001 following order was passed by the High Court:

"Present: Mr. Muhammad Rafique Advocate for the appellants. Raja Hassan Akhtar, Advocats the respondents. Order: It is reported that respondents Nos. 1 to 5 and 7 to 12 have got out of the country as such cannot be served ordinarily, therefore substituted service is ordered. The appellants shall deposit the proclamation fee within a week and then proclamation shall issue. To come up for further proceedings on 6-11-2002. Camp Kotli (Sd. 3-10-2001 Judge"

3. On the basis of this order on 6-11-2001 the appeal was dismissed for non-deposit of proclamation fee as ordered by the Court through the aforesaid order. This order has been assailed before this Court on the ground that the order for deposit of proclamation fee was passed on 3-10-2001 which was not the date fixed in the aforesaid appeal. Moreover, the order was passed at Camp Kotli whereas at Camp Kotli neither appellants nor their counsel were present. The learned counsel for the appellants, whose presence has been recorded in this order, also filed an affidavit that he did not appear before the High Court at Camp Kotli on 3-10-2001 in this appeal and further that the date fixed by the Deputy Registrar Circuit Mirpur in the aforesaid appeal was 2-10-2001 and not 3-10-2001. He has further stated in his affidavit that on 6-11-2001 he was present in the High Court for his other engagements when suddenly and surprisingly he heard `Fukara' of the appeal and thus appeared before the Court and tried to explain the correct position but the learned Judge dismissed the appeal in haste. No counter affidavit has been filed from the other side.

4. The points raised in the appeal, concise statement and supported by an affidavit of the learned counsel for the appellants were pressed in arguments before us on behalf of the appellants. On the other hand the learned counsel for the respondents argued that before approaching this Court the appellants had the remedy for readmission of their appeal under Order XLI, rule 19 of the Code of Civil Procedure before the High Court which has not been availed. This appeal, therefore, is premature. According to the learned counsel this appeal was never taken to Camp Kotli for further proceedings. Therefore inadvertently Camp Kotli finds recorded in the order passed on 3-10-2001.

5. We have considered the respective arguments of the learned counsel for the parties and have gone through the record of the case. Ordinarily, notices are issued to the defendants or respondents at the place where they ordinarily or voluntarily reside or carry on business or work for gains. In the present case notices should have been issued against the respondents on the address where they were shown residing by the appellants themselves. On the same address the notices were issued to the respondents about filing of the petition for leave to appeal by the appellants and in response to those notices they appeared before this Court through their counsel, Raja Hassan Akhtar, Advocate. Copy of the judgment of the District Judge Bhimber dated 27-3-2001 made available on our record by the appellants show that respondents were summoned at the same address which was provided in the memo. of appeal before the High Court by appellants. Even -otherwise, order under challenge is not maintainable in the presence of the affidavit filed by the learned counsel for the appellants whose presence on behalf of the appellants before the Court was recorded in the order dated 3-10-2001 that he was not present on that date before the Court, as such had no knowledge that his clients had been ordered to deposit proclamation fee for effecting service upon the respondents through proclamation. No counter-affidavit has been filed by the learned counsel for the, respondents whose presence on that date has been recorded on behalf of the respondents.

6. In view of these facts, the order dismissal of appeal for non-depositing proclamation fee is not sustainable. The objection raised by the learned counsel for the respondents that before approaching this Court, the appellants should have availed remedy under Order XLI, Rule 19 of the Code of Civil Procedure for readmission of their appeal on the grounds which have been raised by them in the present appeal, has no force as this objection was not raised at the time when leave was granted. The same, therefore, raised at this stage.

7. In view of above while allowing this appeal, the impugned order passed by the High Court on 6-11-2001 whereby the appeal of the appellants was dismissed for non-compliance of the order of the Court is set aside. Consequently the appeal of the appellant stands restored in the High Court at its original number. S.A.K./323/SC(AJ&K) Appeal accepted.