1985 PLP 1140 (MLD)

Ghulam Muhammad, now dead, filed a civil suit against the petitioners in this civil revision to challenge an alienation under the custom. The suit was dismissed by the trial Court. Ghulam Muhammad filed an appeal before the Additional District Judge. It came up for hearing 17-7-1977. On that date both he and his counsel were absent. Instead of dismissing the appeal in default or adjourning it to some other date the learned Additional District Judge dismissed it on merits. On 9-1-1978 Ghulam Muhammad filed an application for the restoration of his appeal on .the ground that he was sick on the day when it was disposed of and that he had not become aware of the fate of his appeal earlier. The learned Additional District Judge accepted the application, set aside his judgment and decree and decided to rehear the appeal. The petitioners have challenged the legality of this order of the learned Additional District Judge.

2. It is well-settled that if the appellant does not appear on the date fixed for the hearing of his appeal the appellate Court may either dismiss the appeal or adjourn it to some future date, but it cannot dispose it of on merits. In this context I would refer to Nasir Khan v. Itwari AIR 1924 All. 144, Taher Sheikh Chowkidar v. Otaruddi Howladar A I R 1929 Cal. 475, Musaliarakath Muhammad v. Manaviakrama the Zamorin Rajah Avergal A I R 1923 Mad. 13 and Basudev v. Bideshi AIR 1929 Rang.

11. The learned Additional District Judge was thus not competent to dispose of the appeal on merit. His order, therefore, in setting aside the earlier judgment and decree is unexceptionable.

3. It is contended on behalf of the petitioners that the application for restoration was made long after the period prescribed by Article 168 of the Limitation Act had expired and as the provisions of section 5 of the Limitation Act did not apply to applications for restoration the order of the learned Additional District Judge was illegal. I cannot accept this contention. Article 168 relates to applications for restoration of appeals dismissed in default. In this case, as already pointed out, the appeal was not dismissed in default; for this reason the said Article' was not in terms attracted. As already stated, when the learned Additional District Judge found that the appellant was not present, before him only two courses were open to him, namely, to dismiss the appeal in default or to adjourn the appeal to some future date. The learned Additional District Judge did not consider which of the two B courses he should adopt presumably thinking that he could dispose of the appeal on merits. Had he known that he was not competent to decide the appeal on merits it is very possible that instead of dismissing the appeal in default he would have adjourned it to some future date. I cannot, therefore, equate the order of dismissal on merits with the order of dismissal in default.

4. For the reasons stated above I find no merits in this civil revision which is hereby dismissed with costs. H . B . T . Revision dismissed.