P L D 2002 Supreme Court 720 (PLP)

FAQIR MUHAMMAD KHOKHAR, J.‑‑‑The petitioner seeks the grant of leave from the judgment dated 17‑2‑2000 passed by the Lahore High Court, Lahore whereby F.A.O. No.33 of 2000 filed by him was dismissed.

2. The petitioner had filed a suit for specific performance of agreement dated 10‑2‑1990. On the other hand, the respondent No.3 claiming to be a subsequent vendee of the suit property moved an application under section 13 of the Punjab Rent Restriction Ordinance, 1959 for the eviction of the petitioner. The Civil Judge 1st Class, Sargodha by his consolidated judgment and decree dated 21‑6‑1995 dismissed the civil suit of the petitioner and passed an order of his eviction. An appeal was filed by the petitioner in which the Additional District Judge referred the matter to the Arbitrators. The respondent No.3 filed an objection petition for setting aside the arbitration awards dated 13‑4‑1997 and 8‑5‑1997. The same was accepted by the Additional District Judge, by order dated 18‑12‑1999. The F.A.O. No.33 of 2000 filed by the petitioner against the aforesaid order dated 18‑2‑1999 was dismissed by the Lahore High Court by the impugned judgment dated 17‑2‑2000.

3. The learned counsel for the petitioner argued that the dismissal of the first appeal in limine by the learned Judge in Chambers was against the well‑established and consistent practice of the High Court which could not be departed from in view of law laid down by this Court in. ease of Abid Hussain v. Mst. Afsar Jehan Begum and another (PLD 1973 SC 1). It was submitted that the impugned judgment was passed in disregard of the provisions of Arbitration Act and the same was against the evidence on record. It was further contended that there was no justification for the interference with the award. The learned counsel referred to paragraph 5 of the First Schedule to the Arbitration Act,1940 that the umpire was required to submit his own award in the Court within two months of his entering on the reference.

4. On the other hand, the learned counsel for the respondents submitted that the Additional District Judge as well as the Lahore High Court were justified in refusing to make the award rule of the Court as one set of the Arbitrators had given their own award whereas another set of arbitrators had given a separate and different award.

5. We have heard the learned counsel for the parties at length. It is not an inflexible rule of practice that the first appeal from an order should be invariably admitted which to no case can be dismissed to limine. Depending upon the facts and circumstances of each case and the statute under which an appeal is filed it is difficult to lay down an absolute rule of practice for all cases. In the case of Ali Muhammad v. Commissioner Afghan Refugees, N.‑W.F.P. and another (1995 SCMR 1675), it has been held that the dismissal of first appeal in limine is not a general rule but can be resorted to in those cases which are of such a simple nature that no question of law and facts arises for consideration. Rule 11 of Order XLI of the Code of Civil Procedure does certainly give the Appellate Court in an appropriate case, the power to dismiss an appeal in limine. The Lahore High Court justifiably came to the conclusion that in the present case the defects/ illegalities noted by the learned Additional District Judge were apparent on the face of the record in which the decision on affidavits could be safely given without holding a detailed inquiry. The impugned judgment of the Lahore High Court is just and fair in the facts and circumstances of the case which does not call for any interference by this Court. This is not a fit case for grant of leave to appeal.

6. For the foregoing reasons, we do not find any merit in this petition which is dismissed accordingly. No order as to costs. M.B.A./M‑436/S???????? Petition dismissed.