P L D 1993 Lahore 213 (PLP)

This order shall govern the decision of the miscellaneous petition filed for restoration of second appeal dismissed for default in appearance on 22-4-1990. Relevant facts of the case briefly stated are that 34 Kanals, 11 Marlas of land in revenue estate Keelay of Tehsil and District Sheikhupura was owned by Sardar son of Mehar Shah. He had no issue. Mst.Zainab Bibi appellant was his niece. By Mutation No.51, sanctioned on 7-2-1970, he donated above land to her. Later, a dispute was raised on the donation by Sardar. Thereupon, Mst. Zainab Bibi instituted a civil suit for affirmation of the gift of the land in her, favour. Saidar was defendant in the suit. On 13-4-1974, suit was dismissed on merits by the trial Court. in appeal, this decision. was affirmed on 12-7-1976 by Additional District Judge, Sheikhupura. Thereupon, a further appeal was filed by Mst. Zainab Bibi in this Court. It was admitted to hearing on 6-10-1976, by late Maulvi Mushtaq Hussain, J. Appeal was presented through Qazi Muhammad Dastgir, Advocate. During the- pendency of the appeal, he breathed his last. His death was reported to and noticed by the Court on 29_2-1994 and an order for notice of the appeal to the appellant was passed. Since, her counsel was dead, Sh. Hamid Mukhtar, Advocate, who represented the respondent was called upon to supply correct address of Mst. Zainab Bibi to the office of the Court, within a fortnight. He gave necessary particulars to the office on which a notice for an actual date on 18-4-1987 was issued by the office. Mst. Zainab Bibi was shown to have been personally served on 4-3-1987. Notice served upon Mst. Zainab Bibi was received back in the office on 21-3-1987. However, the appeal was not listed on the actual date given in the notice. Instead, a fresh date for 22-4-1990 was proposed in the office and a postcard was shown to have been issued to the appellant (Mst. Zainab Bibi) for the aforesaid date on 12-4-1990. On the given date of hearing in the appeal, neither party to the appeal appeared. Hence, it was dismissed for default in appearance by Muhammad Munir Khan, J. of this Court. His order runs as:-- "Nemo for the petitioner 11 Case called. No one appears. Dismissed~in default". I I On 26-10-1992, appellant applied for '~estoration of the appeal through Amjad Hussain Syed, Advocate. Restoration petition was supported by her affidavit. It was averred that she had no intitpation or knowledge of the fixation of the appeal from her counsel as well the Court and its consequent dismissal until a few days ago. Before taking note of the oppositiqn to the restoration of the appeal by legal representatives of respondent No.2,1 it was necessary to refer to some facts of importance. It was alleged that Sardar had agreed for sale of the above land to Ghulam Rasool on 4-7-1977. Agreement was concluded during the pendency of second appeal in this Court. S4rdar died issueless on 24-7-1977. On 17-10-1990, Ghulam Rasool instituted -a suit for specific performance of sale agreement in his favour against Mst. Zainab Bibi. Prior to it, on 21-6-1980, Mst. zainab Bibi had sold the land to one~ Ahmad Ali through a registered deed. He was also impleaded as defendant ii~ the suit for specific performance. Death of Sardar was noticed in the plaint arid Mst. Zainab Bibi was shown to be his sole survivor for representing his estatie. In opposition to the restoration petition, it was stated that in the suit filed by Ghulam Rasool, it was specifically wveffed that the appeal filed by Mst. Zainab Bibi was dismissed on 22-4-1990. In the written statement submitted on her behalf by a Mukhtar on 23-4-1991, this f6ct was admitted. Therefore, it was argued that the appellant had clear knowledge of the date fixed for hearing of the appeal and its dismissal on account of her absence. Reply was equally supported by an affidavit of Ghulam. Rasool--respondent No.2. From the above, it shall be seen that the only point requiring decision was, whether the appeal deserved restoration for hearing on merits. Learned counsel for the appellant referred to cases in Khushi Muhammad v. Shaha, etc. PLD 1967 Lahore 151, Malik Muhammad Nazir. v. Mian Abdur Rahim. And another PLD 1968 Lahore 792, National Bank of Pakistan v. The Additional District Judge, Lahore and 2 others PLD 1985 Lahore

326. Last case was decided by me. Upon the strength of principle laid down in the above authorities, it was argued that since the Advocate filing the appeal was dead and appellant had no knowledge of fixation of the appeal, provisions in Rule 19 of Order 41, Civil P.C. did not apply and the restoration petition shall be governed in the inherent jurisdiction of the Court, preserved in section 151 of Civil P.C. Learned counsel for legal representatives of deceased respondent No.2 countered above arguments and urged that since the appellant was sufficiently served and was posted with the knowledge about the fixation of the appeal, the case shall squarely fall in Rule 19 of Order 41, Civil P.C. and a limitation of thirty days shall apply to the restoration application. Learned counsel referred to cases in Haji Ghulani Sarwar. v. Daya Ram 1975 SCMR 199, Lai Dino and others v. Deputy Commissioner and others 1982 SCMR 201, Syed Muhammad Siddique Shah and others v. Sh.Muhammad Afzal and others 1984 CLC

349. Appellant was a female fr9m village Keelay in District Sheikhupura. She appealed through Qazi Muham ! onad Dastgir, Advocate. He died. Appellant had no information of it and the record did not militate against this view. Consequently, on 29-2-1984, the Court directed "notice for actual date of hearing should be served on the appellant". On the succeeding date of hearing fixed on 6-12-1986, the Court called upon learned counsel for legal representatives of respondent Nol to provide the "present whereabouts" of Mst. Zainab Bibi to the office within one month and adjourned the hearing accordingly. On 9-2-1987, the appeal was adjourned to enable the learned counsel for legal representatives of respondent No.2 to supply the correct address of Mst. Zainab Bibi to the office within a fortnight. As said above, upon the address supplied by the learned counsel, a notice for service for an actual date on 18-4-1987 was issue4 by the office and the appellant was shown served in it. Nonetheless, the appeal was, somehow, not fisted for hearing on the date fixed in the office and a hirther date i.e. 22-4-1990 was proposed by the office and post-card was shownto have been issued to the appellant for the above date. In terms of Rule 8, in Chapter 3-A in Volume V of H igh Court Rules and Orders, "the posting of such post-card shall be deemed to be sufficient intimation- to the party of the date fixed in the case". Presumably, relying upon the above rule, the learned Judge took it to be a sufficient service and dismissed the appeal for default in appearance. As observed above, appellant swore an affidavit to disown knowledge about the date of fixation of the appeal and receipt of any intimation about it from any quarter. In opposition, the affidavit submitted by Ghulam Rasool relied upon a mere presumption that notice sent was presumed to have been delivered, unless proved otherwise. There is no statement in counter-affidavit about actual intimation of the date fixed for hearing of the appeal. Appellant was an uneducated female from a village. Her affidavit sufficiently showed non-receipt C of the intimation respecting date of hearing fixed for the appeal on 22-4-1990 and there was no sound material for holding against her on this point. Suit for specific performance was filed on 17-10-1990, much after the dismissal of the appeal for default in appearance. Para 3 of the plaint in the suit for specific performance referred to dismissal of the appeal for default, on 22-4-1990. In the written statement submitted on behalf of the appellant by her Mukhtar-e aam, it was stated that the appellant had no intimation of the date of hearing of the appeal and because of it, it was dismissed for non-prosecution. Except for a mere presumption raised in the aforequoted Rule 8 respecting intimation by despatch of postcard, there was no evidence about actual service of the registered postcard upon the appellant. Therefore, in presence of her affidavit. it was not difficult to hold that she was not served with any intimation regarding fixation of her appeal on 22-4-1990 and the learned Judge shall be deemed to have passed the order without notice of the appeal to the appellant. The order, therefore, was a nullity. Case in Khushi Muhammad. v. Shaha, etc. PLD 1967 Lahore 151 was a close parallel and assisted the decision. Cases in Muhammad Ali v. Governor-General-in-Council AIR 1949 Allahabad 36, Bhagwati Prasad and another v. Ram Roop Tewari and others AIR 1962 Allahabad 622 were also in point. In the first Allahabad case paragraphs 4 and 5 of the judgment deserve to be quoted. They run as:-- "4.--It appears from the judgment under revision that the opposite party did not know of the date fixed for the hearing of the appeal. This happened in the following circumstances. The date for hearing was fixed on 28th July and notice of this date was sought to be communicated to the opposite-party through registered post acknowledgment due. By 6th September 1947, neither the registered letter returned to the Court nor the Court received the acknowledgement duly signed by the addressee. On 6th September 1947, however, the Court dismissed the appeal for default without probably scrutinising the whole situation. 5--To consider the order of dismissal to be an order under 0.41, R.17, Civil P.C., it is necessary to hold that 6th September 1947 was the date fixed of which the appellant had notice. If the appellant had no notice of this date, the order of dismissal for default cannot be taken to be order under 0.41, R.17, and therefore, the provisions of 0.41, R.19, or Art. 168, Limitation Act, would not come into play. The position would be simply this that the Court just took out the file on a certain date, of which the appellant had no notice, and dismissed the appeal under some error. It is always open to Court and ought to be open to Court to rectify its error. This is what the Court had done." In the second case from Allahabad dealing with a similar situation, the Court said:-- "This contention cannot be accepted because unless the dismissal of the appeal is under Order 41, Rule 17 neither Rule 19 will apply nor Article

168. In such a case the error can be corrected by the Court in its inherent jurisdiction and for the exercise of such inherent jurisdiction under section 151, Article 168 will not stand in the way of the Court. There being a finding of fact in this case that the parties or their counsel had no knowledge of the date, the dismissal order of the appeal could not be under Rule 17 and consequently it cannot be said that the Court below exercised the jurisdiction not vested in it by restoring the appeal." Judgment of the Supreme Court reported in PLD 1975 SC 678 holds that the expression "called on for hearing" as used in Order XLI, R.17, Civil P.C. obviously presumed the completion of all earlier steps envisaged by Rules 11 to 16 of Order XLI. Obviously, a rule quoted in them insisted on notice/intimation to the appellant. Dismissal of the appeal for default in appearance without notice or intimation to the appellant may eventually turn out to be an unjust and illegal act. I shall, therefore, allow the petition, recall the order passed on 22-4-1990 dismissing the appeal for default in appearance and restore it for hearing on merits. There shall be no order as to costs in this Court. M.B.A./Z-62/L Petition accepted.