1989 PLP 4690 (MLD)

‑‑‑O.XLI, R.23‑‑Remand of appeal‑‑High Court notified "specified place" to be the place of sitting of the Court of Additional District Judge, on specific date‑‑Proceedings in appeal having been initiated at the specified place before the issuance of notification, rendered those proceedings to be invalid and not in accordance with law‑‑Case was thus remanded to First Appellate Court for decision on merits. Muhammad Younas Bhatti for Appellant. Ashfaq Ahmad for Respondents. Date of hearing: 6th June, 1987. This appeal by Nek Muhammad and Allah Yar, vendees‑defendants, in a suit for possession by pre‑emption is brought against an order of Khan Muhammad Arshad Khan, Additional District Judge, Pakpattan Sharif, dated 10‑6‑1985, dismissing their application for setting aside the order dated 7‑4‑1984 by which their appeal was dismissed for non‑prosecution.

2. Ali Muhammad, respondent, instituted a suit for possession by pre -emption against the appellants which was decreed by a judgment dated 7‑4 -1984 of a learned Civil Judge, Ist Class, Pakpattan. The appellants preferred an appeal against the judgment and decree which came up for hearing before the learned Additional District Judge on 9‑3‑1985, when the Presiding Officer was on leave and the appeal was adjourned to 13‑4‑1985. On that date, the learned Additional District Judge, Sahiwal, directed the parties to appear before the learned Additional District Judge, Pakpattan, on 17‑4‑1985. It appears that before 13‑4‑1985, the learned Additional District Judge had directed by a general order the transfer of all matters relating to Pakpattan Tehsil to the Court of Additional District Judge, at Pakpattan Sharif. On 17‑4‑1985, Mr. Muhammad Inam Wattu, Advocate, appeared on behalf of the appellants before the learned Additional District Judge, Pakpattan and Mr. Khalid Mahmood, Advocate, appeared for the respondents and the appeal was adjourned to 10‑6‑1985 for arguments. On that date, none appeared for the appellants and the appeal was dismissed for non‑prosecution.

3. The appeal, in my view, must succeed on the short ground that the Additional District Judge was not authorized to hold the Court and hear appeals at Pakpattan Sharif on 17‑4‑1985. This is because the notification made by the Chief Justice and Judges of the High Court, in exercise of the power confer‑red under section 13 of the Punjab Civil Courts Ordinance, 1962 directing "that the Pakpattan in the Civil District of Sahiwal shall be the place of sitting of the Court of Additional District Judge," was made on 22nd May 1985. It is plain that if it was by virtue of this notification and the learned counsel for the respondents conceded that. it was, that the learned Additional District Judge was competent to hold the Court at Pakpattan, then he was not so competent to hold the Court before the date of the notification viz, 22nd May, 1985. Here, somehow, the date of hearing before the learned Additional District Judge, was fixed as 17‑4‑1985, i.e. before the notification directing that the Pakpattan shall be the place of sitting of the Court of Additional District Judge was made. The result, in my view, should be that the non appearance of the appellants before the learned Additional District Judge at Pakpattan on 17‑4‑1985 when the appeal was adjourned to 10‑6‑1985 was of no effect and, therefore, the learned District Judge was not competent to dismiss the appeal for non‑prosecution on 10‑6‑1985. I would, therefore, accept the appeal, set aside the judgment in question and remand the appeal to the learned Additional District Judge, Pakpattan, for its decision on merits. The parties shall appear before the learned Additional District Judge, Pakpattan on 28‑6‑1987. A.A./N‑299/L Appeal remanded.