2002 PLP 969 (CLC)

(c) Civil Procedure Code (V of 1908)

S. 96 & O.XLI, R.11 read with S.115

Appeal

Dismissal of appeal in limine without summoning record of Trial Court and without considering grounds specifically taken in memo. of appeal

Validity-- Appellate Court had dismissed the appeal without considering the plea of limitation taken in memo,, of appeal- and recording proper findings on the issue

.Both such issues-could not be decided without summoning record and affording opportunity of hearing to parties concerned

Both on facts and law, it was not a case, which could be dismissed in limine by final Court of facts

High Court accepted revision petition and set aside impugned judgment/decree holding that appeal. would be deemed to be pending and would be decided in accordance with law. Sh. Hakim Ali for Petitioner. Qamar Hameed Hashmi for Respondents. Date of hearing: 10th January, 2001. Ghulam Muhammad, respondent No. 1 filed suit for posses through pre-emption, which was resisted by the petitioner. The learned trial Court after framing the issues and recording evidence of the parties decreed the suit of respondent No. 1 vide judgment/decree, dated 9-12-1980. Feeling aggrieved by the abovesaid judgment/decree the petitioner filed an appeal, which was dismissed in limine by the learned District Judge vide judgment and decree, dated 11-1-1981. Hence this civil revision.

2. The learned counsel for petitioner contended that the learned District Judge did not consider the plea that the suit of respondent No.1 was barred by time although it was specifically taken as a ground of appeal in para.3 of the memorandum of appeal. It is further contended that the learned District Judge did not summon the record of the trial Court and merely by referring the statement of respondent, No.1 dismissed the appeal, which finding is not sustainable in law.

3. Conversely, the learned, counsel for respondents has supported the judgment/decree passed by the two Courts below.

4. I have heard the learned counsel for parties and have also perused the record. The learned District Judge dismissed the appeal of petitioner without considering the plea of limitation specifically taken up as a ground of appeal in para. 3 of the memorandum of appeal and did not record any finding on Issue No.4. The only ground on which the appeal was dismissed in limine was the statement of Ghulam Muhammad respondent No. 1, which was to the effect that vendor Mst. Sehat Khatoon is his real mother. This statement was even not corroborated by Mst. Sehat Khatoon while appearing as P.W.2 and did not utter in specific words about her relationship with Ghulam Muhammad. So, in this view of the matter at the most it is an admission in one's own favour. In para.4 of the plaint Ghulam Muhammad, respondent No. 1, only mentioned himself as collateral of vendor and also owner in Khata. The fact that he was son of the petitioner is not mentioned in the pleadings. The learned District Judge while deciding. Issue No. 1 and by not adverting to Issue No.4 has committed an illegality. Generally, in an appeal from original decree, the appeal is both on facts and law, but in an appeal from appellate decree the appeal is only on law. In original appeal, more commonly called first appeal, the First Appellate Court is final Court of facts. Dismissal under Order XLI, rule 11 of Code of Civil Procedure of first appeal is, therefore, not a general rule. If the facts are not simple and undisputed the first appeal is not generally dismissed in limine. In the neither the question of limitation was discussed nor the finding on issue No. 1 was properly recorded. The learned Appellate court should have considered the case of petitioner. In my opinion both issues could not be decided without summoning the record and without affording opportunity of hearing to the parties concerned. Thus it is clear that both on facts and law this was not a case which could be dismissed in limine by the final Court of facts.

5. In view of what has been discussed above, this civil revision is allowed and the judgment/decree of District Judge, Rahim Yar Khan is set aside. The appeal of petitioner shall be deemed to be pending. The learned counsel for respondents has pointed out that at present Additional District Judge learned District Judge, Rahim Yar Khan, the same for disposal on 25-1-2001 S.A.K./M-895/L Case remanded.