2015 PLP 788 (YLR)

QAISER RASHID KHAN, J.

Through the petition in hand, the petitioner has challenged the impugned judgment and order dated 8-3-2012 of the learned Additional District Judge-I, Peshawar whereby his appeal preferred against the judgment and order dated 10-11-2010 of the learned Civil Judge-II, Peshawar was dismissed.

2. Learned counsel for the petitioner argued that the learned appellate court was not within its legal right to dismiss the appeal by discussing the merits of the case in detail and could have dismissed the same in default in case the same was to be dismissed on account of the absence of the appellant and his counsel.

3. Learned counsel for the respondents Nos.1 to 5 in a lukewarm manner resisted the arguments submitted by the learned counsel for the petitioner albeit with the submission that the petitioner wilfully absented himself from appearance before the learned appellate court and resultantly the learned appellate court was left with little choice but to dismiss the appeal. However, as far as discussing the merits of the case, learned counsel candidly conceded that the learned appellate court had legally erred while doing so.

4. The learned D.A.G. on his turn supported the arguments of the learned counsel for the petitioner and stated that an opportunity should have been afforded to the appellant to present their viewpoint before the appellate court. Arguments heard and record perused.

5. No doubt, the appeal of the petitioner was dismissed by the learned appellate court on account of the absence of the appellant and his counsel. However, the learned appellate court seriously erred while discussing the merits of the case in the impugned order. Order XLI, Rule 17, C.P.C. duly caters to a situation where the appellant or for that matter his counsel fail to turn up on the date of hearing. The same reads as under:--

17. Dismissal of appeal for appellant's default.

(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) . . . . . . . . . Even otherwise, it is supposed to be the most cherished goal of all courts to decide the cases on merits by affording adequate opportunity to the parties to put across their viewpoints rather than resorting to quick fix arrangement of disposal of cases through dismissal.

6. Being so, this petition is allowed, the impugned judgment and order dated 8-3-2012 of the learned Additional District Judge-I, Peshawar is set aside and the case is remanded to the learned District Judge, Peshawar either to retain the appeal himself or to entrust the same to some other learned Additional District Judge for final disposal. Keeping in view the conduct of the petitioner, he is burdened with a cost of Rs.4000 to be paid to the respondents Nos.1 to

4. Being an old matter, the learned appellate court is directed to decide the appeal within one month. The parties are directed to appear before the learned District Judge, Peshawar on 9-12-2013. AG/204/P Revision allowed.