1989 PLP 3309 (MLD)

Date of hearing. 5th April, 1989. This first appeal is directed against the order, dated 28th September, 1981, passed by a learned Additional District Judge, Lahore, whereby he disallowed the appellants request to restore the appeal which was dismissed for non-deposit of publication charges.

2. Vide judgment and decree, dated 15-4-1981, passed by a learned Civil Judge, Lahore, a suit for recovery of Rs.15,349.80 was decreed in favour of respondents Nos. 1 to 3 against the appellants and respondents Nos. 4 and

5. The aforesaid judgment and decree were called in question through an appeal before a learned Additional District Judge, Lahore. The appeal was admitted to regular hearing on 3-6-1981 and notices were directed to be issued to the respondents for 23-6-1981. On the later date counsel for respondent Nos. 1 to 3 put in appearance while none appeared for the remaining respondents. Fresh notices were directed to be issued for 19-7-1981. The learned Presiding Officer was on leave on 19-7-1981 and therefore, the case was adjourned to 8-9-1981. On 8-9-1981 counsel for respondents Nos. 1 to 3 appeared. Presence of none for the appellants has been recorded. As it was an adjourned case ordinarily the Court should have summoned the appellants for the next date of hearing, but it ordered that service of unserved respondents be effected through an advertisement in Daily Maghrabi Pakistan, Lahore. It was further directed that advertisement charges as also the process fee be deposited within three days. Th- case was adjourned to 27-9-1981.

3. On 27-9-1981, no one, appeared for the parties and the learned Additional District Judge dismissed the appeal for non-deposit of advertisement charges as also the process fee.

4. On the following day i.e. on 28-9-1981, the learned counsel for the appellants submitted an application seeking restoration of the appeal. It was pleaded that on account of lack of knowledge citation charges could not be deposited but the learned Additional District Judge dismissed the restoration application on the same day and observed that the appellants' counsel has been negligent and he failed to put in appearance on earlier dates of hearing i.e. 23-6-1981 and 8-9-1981. Thus the present F.A.O.

5. It transpires from the record of the Court of the learned Additional District Judge that there was no fault on the part of the appellants for 23-6-1981. On the subsequent date of hearing the Presiding Officer himself was on leave and thereafter on 8-9-1981 when he made the order regarding substitutive service through advertisement in the newspaper, presence of the appellants and their counsel has been recorded.

6. One of the appellants namely Munir Ahmad has however, sworn an affidavit which has been enclosed with the restoration application that he was present in Court on 8-9-1981 but he gathered the impression that only process fee was to be paid and he failed to comprehend that advertisement charges were also required to be deposited by the appellants. There is no counter-affidavit. It has also been noticed that while appeal has been dismissed vide order, dated 27-9 1981 on the ground that neither process fee was paid nor the citation charges were deposited but as a matter of fact process fee had been paid by the appellants. Restoration application was filed before the learned Additional District Judge on the following day i.e. on 28-9-1981. This fact is indicative of bona tides on the part of the appellant. Otherwise, also the law leans in favour of decision on merits.

7. An objection has been raised during the course of arguments by the learned counsel for the respondents that respondent No.2 Ghulam Nabi had in fact died before the present appeal was filed but through C.M. No.711-1988 the appellants have been allowed to bring legal representatives of the said deceased respondent on record. On 28-11-1988, he urged that legal representatives of respondent who died prior to the filing of appeal could not be appointed under Order XXII, Rule 4 or Order XLI, Rule 20, C.P.C. In support of this contention reliance has been placed on the case of Niamat Ullah Khan and 8 others v. Ghulam Sarwar and 14 others PLD 1979 Pesh.31. There can, of course, be no dispute with the principle enunciated in the Peshawar case but the said case is distinguishable on merits inasmuch as in the present appeal, through C.M. No.711 of 1988, it was prayed that name of Ghulam Nabi who died prior to the filing of the appeal be struck off and his legal heirs be added as party and this Misc. application has been filed under Order 1 rule 10, C.P.C. This course of action could lawful, be resorted to and therefore, the application was allowed.

8. For the foregoing conclusion, the appeal is allowed and the impugned order is set aside. The case is remanded to the learned lower Appellate Court with the direction to decide the appeal afresh on merits. Lower Court's record shall be returned within 10 days positively. There shall, of course, be no order as to costs. M.Y.H./K-187/L Case remanded.