1990CLC549 (PLP)

(c) Civil Procedure Code (V of 1908)‑‑ ‑‑‑

0. XLI, Rr.16 & 31‑‑‑Provisions of O.XLI, Rr.16 & 31, C.P.C. call for passing of clear orders of acceptance or dismissal of appeals and because of absence of a specific order of dismissal in the Regular Second Appeal, office had to treat it as still pending and awaiting to be decided. Sardar Muhammad Hussain Khan for Appellant. Learned counsel has rightly urged in para.5 of the application that there is no explicit order dismissing the appeal and a mere observation stands made in the order dated 16‑1‑1989 to the effect that in view of the Supreme Court judgment of 1988 suit cannot be decreed at this stage. Even the Supreme Court has changed its view in the latest judgment reported as Ahmad v. Abdul Aziz PLD 1989 SC 771 and this, in itself, is a reason for this case being accordingly reconsidered and, if need be there, the R.S.A. has to become entitled to be restored for that purpose. 2.This R.SA. had crossed limine stage of consideration on 3‑10‑1987 when it was admitted to regular hearing. After crossing that stage, a civil appeal comes to be dealt with in the manner provided for in Order XLI, Rule 16 et seq which clearly enjoins hearing of the appellant in support of his appeal so that a determination on merits is incapable of being made without hearing the appellant. Scheme of the law is such that once an appeal is admitted to regular hearing under Rule 12 of Order XLI, it becomes incapable of being disposed of on merits without hearing the appellant and the Court has no escape there from A for deciding it on merits; it may, of course, dismiss it in default of appearance of the appellant but cannot proceed to decide it on merits, just behind his back.

3. Herein, since learned counsel for the appellant had been elevated to the Bench in the previous year, therefore, the appellant was entitled to be notified the date of hearing spoken of in Rules 12 and 16 (ibid) but no such notice seems to B have issued to the appellant before the appeal was taken up for passing the order complained about, therefore, such a dealing of appeal has to be regarded a mere coram non judice, to become liable to be simply ignored.

4. It has not actually been said in the relevant order (dated 16‑1‑1989) passed by my learned brother Muhammad Munir Khan, J., that the appeal is in fact dismissed either on merits or in default and no such order may really have been lawfully passed in the aforestated situation. For the above reasons, C.M.No.2/1989 is accepted and condoning the delay in maintaining C.M. No.l/1989, the plea urged therein is allowed and both the applications are disposed of accordingly.

5. Rules 16 and 31 of Order XLI of C.P.C. call for passing of clear orders of acceptance or dismissal of appeals and because of absence of a specific order C of dismissal in this R.S.A., office has to treat it as still pending and awaiting to be decided. It will now be accordingly set down for hearing in due course. M‑1806/L??????????????????????????????? ??????????????????????????????????????????????? ??????????? Order accordingly.