2004 PLP 1101 (MLD)

Hifz ur‑Rehman Syed for Petitioner. Nemo for Respondent. Date of hearing: 15th March, 2004. On 26‑11‑1996 the petitioner filed a suit against the respondents. In the plaint it was stated he is temporary allottee being J & K refugee and he applied for ownership rights which were allowed. He deposited transfer price on 13‑1‑1981. However, Mutation No. 1636 was entered but later was illegally cancelled. He then filed a civil suit which was partly decreed. He filed a first appeal which was allowed and the case was remanded. The petitioner then withdrew the suit to the extent of suit‑land with permission to file a fresh suit. He accordingly sought a declaration that he is owner of the suit‑land. The suit was contested. Issues were framed. Evidence of, the parties was recorded. Learned Trial Court dismissed the suit vide judgment and decree, dated 13‑7‑1999. The learned Addl. District Judge dismissed the first appeal on 3‑11‑1999.

2. Learned counsel for the petitioner contends that the learned Addl. District Judge has failed to exercise jurisdiction vesting in him and proceeded to dismiss the appeal on irrelevant ground instead of reading evidence and deciding the matter. No one has turned up for the respondent despite service. They are proceeded against ex‑parte.

3. For the order I propose to pass in this case I will not be referring the evidence on record in detail. Now I have already reproduced the contents of the plaint wherein it has been stated that earlier suit was withdrawn with permission to file a fresh suit. Now leaned Addl. District Judge has proceeded to hold that the said order permitting the petitioner to withdraw the suit and to file a fresh suit on the same cause of action is illegal. To my mind, the learned Addl. District Judge has acted without lawful authority. The said permission having not been challenged in the manner prescribed by law, same could not have been questioned or set aside in this suit which was filed as a result of the said permission. Reference be made to the cases of Nirbheram Fatee Kurmi v. Sukhdeo Kisun Kurmi and another (AIR (31) 1944 Napur 307), Hriday Nath Roy v. Ram Chandra Barna Sarma (AIR (sic) Calcutta 34) and Iswari Prasad Singh and another v. Sahodra Kumari and another (AIR 1922 Patna 42). I, therefore, do find that the learned Addl. District Judge has acted without lawful authority in holding suit to be barred by Order II, Rule 2 C.P.C. The learned Addl. District Judge has then referred to some pieces of evidence and proceeded to reject them on the basis of the said findings that the suit is barred under Order II, Rule 2, C.P.C.

4. Another observation made by the learned Addl. District Judge is that Manzhoor etc. mentioned in the judgment (para.7) have not been impleaded. The learned Addl. District Judge has failed to note that the Federal Government is recorded to be owner while said persons are Haqdaran Shamlat and as such they are not co‑sharer in the suit‑land. To my mind, first appeal has not been heard and decided in accordance with law. Needless to state that under the present dispensation the said first appeal in fact is the last appeal on facts and law and as such the learned Courts of appeal are required to deal with the same with care and caution and not to get rid of the appeal by resorting to technicalities which otherwise are not warranted by law. The civil revision is accordingly allowed. The impugned judgment and decree, dated 3‑11‑1999 of the learned Addl. District Judge, Attock, is set aside. The result would be that the appeal filed by the petitioner shall be deemed to be pending before the learned District Judge, Attock, where the petitioner shall appear on 22‑4‑2004. The learned District Judge shall then either proceed further, himself or entrust the appeal to a learned Addl. District Judge, who shall requisition the record and summon the respondents and after hearing the parties and considering the evidence on record proceed to decide the appeal on its merit. No order as to costs. A copy of this judgment be immediately remitted to the learned District Judge, Attock. H.B.T./F‑22/L Revision allowed.