1992 PLP 856 (MLD)

This petition for revision, though against a short . and brief worded order of learned Additional District Judge, Attock, dated 2‑1‑1992 but raised interesting propositions of law, one of them hitherto not covered by authority. At least, so the learned counsel for the petitioners stated. Facts relevant for the decision of revision petition briefly stated are:‑ Munawar Khan respondent No.3 owned a plot of land in village abadi of revenue estate Pathi in Tehsil Attock. By deed of sale registered on 17‑9‑1986; he sold it to Muhammad Nawaz, Muhammad Yousaf and Dil Dawaz sons of Khan Bahadar for a consideration of Rs.2,50,

000. Sale consideration was transferred in presence of ‑Sub‑Registrar at the time of registration of the sale‑deed and is so recorded in the endorsement made on the sale‑deed by the Sub‑Registrar. On 11‑12‑1991, Munawar Khan brought a civil suit against his vendees for annulment of the sale‑deed attributed to him. Vendees of the plot contested the suit. One of them namely Muhammad Nawaz was abroad in Saudi Arabia. He was proceeded against ex parte. On 30‑10‑1991, the trial Court dismissed the suit. Respondent preferred an appeal. It was allowed and suit was remanded for its retrial on merits. At the remanded trial, on 10‑12‑1991, respondent No.3 who was plaintiff in the suit submitted an application for injuncting the defendants from taking possession of the plot from him, raising construction on it and its further alienation. Contesting defendants resisted the application for temporary injunction. On 19‑12‑1991, the trial Court dismissed the application for temporary injunction. On 23‑12‑1991, plaintiff‑respondent No.3 preferred an appeal before learned District Judge, Attock. Hearing of the appeal was entrusted to learned Additional District Judge, Attock. On 31‑12‑1991, respondent No.3, as appellant in the lower Court, applied for withdrawing of his appeal with liberty for filing it afresh. Only ground stated for withdrawing the appeal was that the memo was inadvertently not signed. Respondents to the appeal resisted the prayer. On 2‑1‑1991 (correct is 2‑1‑1992), lower Appellate Court recorded the statement of the appellant and Shah Rasool Hameedi counsel for respondents wherein the appellant stated that he wished to withdraw the appeal with permission to refile it within the unexpired period of limitation prescribed for it and counsel for respondents objected to granting of permission for a fresh appeal but agreed to its unconditional withdrawal. After taking down the above statements of the appellant and counsel for respondents, lower Appellate Court gave permission to the appellant for withdrawing his appeal with liberty of its re‑filing afresh upon payment of Rs.500 as costs. On 6‑1‑1992, a fresh appeal was filed in the Court of learned District Judge. It was entrusted to the learned Additional District Judge, who had earlier dealt with the appeal and given permission for withdrawing it with option for re‑filing it on the same subject‑matter. Respondents to the appeal objected to its maintainability. Hearing of the new appeal is now adjourned to 20‑2‑1992 by the learned Additional District Judge, Attock and status quo was maintained meanwhile. Against the first order by which appeal was allowed to be withdrawn with permission for its refiling, two of the defendants namely Muhammad Yousaf and Dil Nawaz have come up in revision to this Court. It was admitted to hearing on 19‑1‑1992. At the hearing, Malik Muhammad Jaffar learned counsel for the petitioners contended that Order 23, rule 1(2) of Civil Procedure Code permitted withdrawal of the suit with permission to file a fresh suit on the existing subject matter. Upon its terms, it did not apply to conditional withdrawal of the appeal for the purposes of its refiling within the unexpired period of limitation prescribed for it. It was further contended that assuming the application of the rule to the conditional withdrawal of the appeal, the Court in exercise of its jurisdiction acted mechanically and without any semblance of application of judicial mind to the compulsive requirement of the rule, when it gave permission for fresh filing of the appeal. Learned counsel referred to the cases of Mst. Fatima v. Sardara P.L.D. 1956 (W.P.) Lahore 474, Ahmad Din and three others v. Town Committee, Dipalpur‑1972 S.C.M.R. 203 (205), Ahmad Mian v. Malik Bahadur PLD 1979 Note 105 at p. 78 (Baghdad‑ul‑Jadid), Ghulam Amin and another v. Haji Muhammad Akram P.L.D. 1981 Peshawar

72. It was also argued that the ground urged for withdrawal of the appeal suffered from a factual error; memorandum of appeal was duly signed by the counsel and that met requirement of procedure. As regards first contention, learned counsel merely referred to the provisions in Order 23 rule 1, but failed to cite any decided case prohibiting the application of the rule to Appeals. Similarly, learned counsel appearing for respondent did not bring to my notice any ruling on the point. However, upon close examination of the provisions of Order 23, rule 1(2) read with section 107 (2) of Code of Civil Procedure, there is no insuperable impediment for holding applicability of the rule to Appeals also. It is common ground that appeal is a continuation of the suit. Subsection (2) of section 107 provides that the Appellate Court has the same powers and duties as are conferred and imposed by the Code of Civil Procedure on Court of original jurisdiction and it can do, while the appeal is pending before it, what the original Court could have done in respect of suit instituted before it. Therefore, unless there was some prohibition restrictive of the powers of the Appellate Court, in this behalf, it has ordinarily, and as a general rule the same powers to exercise and functions to perform, which were open to the original Court from whose decision the appeal was brought before it. In my opinion, sub‑Rule(2) of Rule 1, Order 23, Civil Procedure Code attracted itself to Appeals also, and, an Appellate Court can, therefore, subject to observance of conditions hedging in the exercise of jurisdiction under it, allow withdrawal of an appeal with liberty to bring a fresh appeal. Of course, permission to withdraw the appeal for its refiling shall not extend period of limitation as provided in Rule 2 of Order 23, Civil Procedure Code. Having dealt with the question about power and jurisdiction of the Court, I propose to deal with the second limb of the contention relating to imperatives of the rule for allowing conditional withdrawal of the appeal. As the sub‑rule itself states, the withdrawal can only be allowed on the grounds mentioned in it and no others. Further, order allowing conditional withdrawal must surface the reasons for making it, so as to permit its successful scrutiny in higher forums for judging on its legality as well as propriety. No judgment is required to be cited in support of the view that where permission was given in absence of the required grounds mentioned in sub‑rule (2), the order is reduced to a nullity and can be safely termed as an order without jurisdiction. A cursory glance at the contents of the application submitted by the appellant and resultant order made by the learned Court on it was a clear manifestation of incorrect application of law and improper exercise of jurisdiction. Not a word has been said in the impugned order for allowing conditional withdrawal of appeal and also as to what were the material defects in it which could prove fatal to it in its existing form. In my view, exercise of jurisdiction by the learned Judge below was hecticly hurried as if he wanted to get rid of an appeal filed in his Court. Even if the defect pointed out in the memo of appeal addressed against an interim order had some truth in it, the Court could have permitted its rectification, instead of allowing withdrawal of the appeal for its fresh institution. It is in this view of the matter that I am unable to approve of the mode and manner of exercise of appellate jurisdiction by the learned Judge below and feel constrained to set aside the impugned order for reconsideration of the application filed for withdrawing the appeal with liberty to refile it and passing of an appropriate order on merits in accordance with law. The matter shall now go back to the file of learned District Judge, Attock for its reconsideration. Parties shall appear before him on 15‑2‑1992. There shall be no order as to costs in this Court. As order permitting conditional withdrawal of appeal has been set aside and remanded for reconsideration, fresh appeal filed on its strength shall be stayed to await final result in the remanded appeal. AA./M‑213/L. Case remanded.