P L D 1967 Lahore 807 (PLP)

Nemo for Respondent. Dates of hearing: 21st and 22nd November 1966. The brief facts are that the petitioner's suit for dissolution of marriage with the respondent having been dismissed by the trial Court, the petitioner filed an appeal before the learned District Judge, Lahore. The memorandum of appeal was signed by her counsel, Mian Muhammad Fazil, Advocate, who recorded on the memorandum of appeal that his power‑of‑attorney appears on the lower Court's file. It may be mentioned that computing the time spent in obtaining the copies of the judgment and decree of the trial Court, this appeal was entertainable as within time till the 11th of April 1964. The memorandum of appeal was presented by Mr. Amir Alam, Pleader, a junior of Mian Muhammad Fazil, Advocate, on the 7th of April 1964, when the learned District Judge passed an order entrusting the appeal to the Additional District Judge for disposal. On the 8th of April 1964 the appeal came up for hearing before the Additional District Judge when Mr. Javed Amin, Pleader, another junior of Mian Muhammad Fazil, appeared. The Additional District Judge finding that the memorandum of appeal had not been presented by Mian Muhammad Fazil, Advocate, himself and instead another Pleader Mr. Amir Alam, had appeared, who did not hold a power of attorney on behalf of the appellant or from Mian Muhammad Fazil, held the presentation as incompetent and dismissed the appeal. Thereafter, Mian Muhammad Fazil put in an application under Order XLI, rules 1 and 19, and Order XLVII, rule 1, read with section 151, C. P. C. stating therein that the memorandum of appeal properly signed by him as duly authorised counsel had been presented by a lawyer verbally instructed by him in that regard and the presentation of the appeal on the 7th of April 1964 was quite competent. This application was also rejected by the learned Additional District Judge on the 13th of April 1964, saying that he did not find sufficient grounds under Order XLVI1, rule 1, C. P. C. to review his previous order.

2. In this revision petition learned counsel contends that the dismissal of the appeal on the 8th of April 1964 is unwarranted in view of the provisions of Order XLI, rule 1 read with Order III rules 1 and 4, because personal presentation of the memorandum of appeal is not necessary and if the memorandum of appeal duly signed by the authorised counsel, is presented by another Pleader, on verbal instructions of the authorised counsel, such presentation is proper, legal and valid. He has relied in this regard on Karam Nishan v. Mehrban Ali Shah (P L D 1959 Lah. 946) and Mst. Barkata v. Feroze Khan (A I R 1944 Lah. 131). He further argues that even on the 8th of April 1964 when another junior of Mian Muhammad Fazil appeared before the learned Additional District Judge, the appeal was within time and the pre sentation of the appeal on that day could have been taken into consideration.

3. A memorandum of appeal is to conform to the provisions of Order XLI rule 1 and if it is not drawn up in the manner provided by rules 1 and 2, it may be rejected or be returned to the appellant for amendment (rule 3). After admission of the memorandum, the appeal is registered under rule

9. Next comes the stage when the appeal may be dismissed without sending notice to lower Court and without serving notice on the respondent. These provisions are contained in rule 11, which may be reproduced with advantage:‑ "11. (1) The Appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the , appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader. (2) If on the day fixed or 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. (3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred." A plain reading of this Rule will show that if the Court dismisses the appeal in limine without summoning the record and without issuing notice to the opposite‑party, it functions within the purview of Order XLI, rule 11 (1) and it is obligatory on him to record a proper judgment complying with the requirements of law. Such an order in a `decree' and is appealable and, therefore, no revision lies. But in the instant case I find that the learned Additional District Judge while dismissing the appeal in lfmine has neither prepared a dercee nor any memorandum of costs and presumably it is this factor that has misled the petitioner to file a revision petition instead of an appeal against the judgment of rejection of appeal. A similar case came up for decision before the Punjab Chief Court, reported as Bishen Singh v. Bishen Kaur (A I R 1914 Lah. 174(2)), in which case the appeal had been dismissed under Order XLI, rule 11, C. P. C. without preparing a decree and their Lordships of the Chief Court proceeded to treat that matter as a revision petition. I follow that decision with respect and hold that non filing of the appeal in this case by the petitioner is not fatal and the revision petition is competent in the circumstances of the case.

4. The next point to be considered is whether the order rejecting the appeal on the ground of incompetent presentation, which has been presented by a junior of Mian Muhammad Fazil on verbal authority of the latter, is a correct order. I say with) regret that the provisions of Order III, rules 1 and 4, as also rules 1, 2, 3, 9 and 11 of Order XLI of the Code of Civil Pro cedure have not been properly construed by the learned Additional District Judge and he has by this erroneous interpretation refused to exercise a jurisdiction so vested in him. I hold that the presen tation of the memorandum of appeal in the circumstances of the case was proper and competent. The revision petition is accepted and the order rejecting the appeal is, therefore, set aside. The case will now go back to the learned District Judge for disposal in accordance with law. Since the respondent is un-represented before me, there will be no order as to costs. K. M. A. Petition accepted,